Why change of venue is important to you

Why change of venue is important to you

By Dr. Mark Lopatin, MD

The year was 2000 when I was sued by a patient who alleged an adverse reaction to a medication started by another physician. It did not matter that I was the one who identified the problem, nor that I appropriately weaned her off the medicine. I was a physician caring for a suffering patient and I was named in the suit. Although I practice in Bucks and Montgomery counties, the other physician practiced in Philadelphia, and the case was therefore registered there. My lawyer informed me that although I had done nothing wrong, the case held peril, given the Philadelphia venue. He advised me that juries in Philadelphia historically favor the plaintiff and are more prone to make decisions based on emotional impact rather than medical facts. Furthermore verdicts tend to be higher. He advised me to settle. I was young and scared, and so I settled the lawsuit even though I knew I had done nothing wrong. A major part of my decision was based on venue. That decision haunts me to this day.

Two years later, the legislature passed Act 27-2002 which determined that venue for malpractice must be in the location of the alleged action. There was a medical liability crisis at that time, but passage of Act 27-2002 helped considerably. Lo and behold, the need for tort reform fell off the map as an issue that affected physicians, and more importantly their patients.

Fast forward to 2019. The Civil Procedural Rules Committee, a committee of the Pennsylvania Supreme Court now wants to bring venue shopping back. If its proposal passes, it would enable lawsuits to be filed in locations other than where the alleged malpractice took place. A physician who resides in Philly but works in Bucks County would be able to be sued in Philadelphia. Obviously plaintiffs’ attorneys would seek out venues most advantageous to them, and justice will again be able to be subverted by the almighty dollar.

This will mean increased malpractice premiums and increased stress for physicians. That which affects doctors also affects patients, and there are negative ramifications if this proposal is passed. Some patients will lose a physician to early retirement. Other patients will find that their physicians will stop doing select procedures. We can expect to see an increase in defensive medicine where physicians order tests not for patient benefit but for the purpose of protecting themselves against legal action. Unnecessary testing may be inconvenient, stressful, expensive and even harmful to the patient. It also creates an access to care issue. If the emergency room is clogged up with patients who were sent there defensively, it will be more difficult for someone with a true emergency to get timely care. Likewise if there is an increase in CAT scans ordered “just in case”, there will be a delay for patients who truly need a CAT scan. Finally, this ruling will make Pennsylvania a less attractive place for physicians to practice. Early retirements + decreased inflow of new physicians will also contribute to an access of care issue for patients.

All of these issues occurred in the late 1990s and early 2000s during the medical liability crisis. That is one of the reasons why Act 27-2002 was passed. Are we now prepared to bring these issues back?

Simply stated, lawsuits should be filed where the alleged malpractice occurred. Plaintiffs’ attorneys should not have the unilateral unfair advantage of being able to venue shop in a malpractice case. Patients should absolutely be compensated for wrongful injuries, but the playing field must be level. While venue shopping may help the patient who is involved in the lawsuit, ultimately, the rest of us will pay the price.

I urge readers to express opposition to this proposed rule by sending an email to Karla Schultz at civilrules@pacourts.us. The deadline is Feb. 22.

Health care is already in crisis. Let’s not add to the problems. Find your voice and email Ms. Schultz today.

Mark Lopatin MD FACP, FACR, FCCP is chairman of the Montgomery County Medical Society.

Mark Lopatin MD FACP, FACR, FCCP is chairman of the Montgomery County Medical Society.