WHL: I was appointed by Governor Schweiker and confirmed by Governor Rendell and by the Pennsylvania Senate for a one-year term on the Supreme Court of Pennsylvania, which ran from January 2003 to January 2004. I then went back into private practice and have just recently been appointed to the Court of Judicial Discipline by Governor Rendell. During my term on the Supreme Court of Pennsylvania, Chief Justice Cappy, with the concurrence of other members of the Court, appointed me to head up the Alternative Dispute Resolution (ADR) committee for the Court. We started that effort in March or April of last year and Governor Rendell put out his white paper on the medical malpractice crisis in Pennsylvania which contained certain initiatives that were referred to the Supreme Court, including mediation and exploration of the Rush Hospital model of mediation. That became my focus for the last half of my term on the Supreme Court and I continue to head up the ADR committee. A number of members were selected to serve on that committee, including the governor’s chief of staff, the governor’s general counsel, and a representative from the Office of Health Care Reform. We have a number of well-known mediators on the committee, plaintiff and defense lawyers, and judges.

WHL: The Court has tackled the issue of remittitur and several rules which deal with the issues of noneconomic loss, damages and specific jury instructions with respect to dealing with noneconomic loss. There are three rules that have been passed recently. The first rule, which becomes effective December 1 of this year for any case in the pipeline that has not gone to a verdict, requires the trial judge in a med-mal case to tell the jury what makes up an award for noneconomic loss. There are four items: pain and suffering, embarrassment and humiliation, loss of ability to enjoy pleasures of life, and disfigurement. A court’s instructions to juries for noneconomic loss used to be much vaguer. Now the Supreme Court is telling trial courts, "These are the factors that you must tell a jury they can consider in determining noneconomic loss." They include: the age of the plaintiff, the severity of the injuries, whether the injuries are temporary or permanent, whether the injuries affect the plaintiff’s ability to perform daily activities, duration and nature of the treatment, duration and extent of physical pain, health and physical condition of the plaintiff prior to the injuries, the nature and consequences of disfigurement for the plaintiff. Plaintiff’s lawyers used to argue some or all of those factors. They wouldn’t argue those factors that didn’t support their case, obviously. If you were dealing with a senior citizen who was 75 years old and was med-mal alleged and proved, the plaintiff certainly wouldn’t say, "My guy is 75 years old, so he’s not entitled to as much compensation as a 50-year-old." But now, the Court is saying, "You must consider all of these factors." We’ve gone from a general charge to a very specific charge.

A second rule, which became effective October 1 of this year, requires the court, upon the request of any party, to ask the jury to come back with specific dollar amounts for medical expenses, loss of earnings, and noneconomic loss – for both prior and future losses. Before, what you would get would be just a general verdict: "We find for the plaintiff against the defendant in the amount of $3 million." Now, the jury must come back and indicate an amount for medical and related expenses. They must indicate a separate amount for loss of earnings: how much money did this plaintiff lose because of his injury in terms of employment and lawyer fees. And the last is noneconomic loss in a lump sum. The jury must also indicate any future damages for medical expenses, loss of earnings, and noneconomic loss. We’re now taking about six categories: three prior and three future.

The third rule the Court passed, which has been referred to in shorthand as the remittitur rule, basically says that a defendant can petition a court for a remittitur on the grounds that the amount of money awarded to the plaintiff as a noneconomic loss, using the past and future categories, is excessive. It’s excessive if it deviates from what could be considered to be reasonable compensation. The prior standard used to be that the damages had to be so excessive as to "shock the conscience of the court." Now the standard is simply, "excessive." A damage award is excessive based whether or not it meets certain criteria: the court shall consider the evidence supporting the plaintiff’s claim, factors that should have been taken into account in making the award, and whether the damage award when assessed against the evidentiary record strongly suggests that the trier-of-fact was influenced by prejudice or passion. Now those are standards, quite frankly, that judges are used to applying every day. So this is not something that was made out of whole cloth. They’re new in the sense that they’re now memorialized in a rule. If a court finds that the noneconomic loss is excessive, it remits the award. If the plaintiff declines to accept the award as remitted, the court will grant a new trial, with a new jury, limited to damages for noneconomic loss. Now, that sounds reasonable; I can assure you that the plaintiffs bar is not happy about it.

WHL: First of all, we now have specific amounts of money that we can look at. We never had that before. Let’s assume there’s a $10 million verdict and $400,000 of that is for medical expenses and loss of earnings and $9.6 million is for the noneconomic loss. Now, a judge is going to be able to look and it and say, "Look, while this person’s injury was serious, it wasn’t permanent. It wasn’t disfiguring. The person that we’re talking about only lost a month’s worth of work. I find this award for noneconomic loss to be excessive." Now, the trial judges have the tools because they have the breakdown of these amounts and a yardstick against which he can now measure them. There are cases, both by United States Supreme Court and by the Pennsylvania Supreme Court that give judges language that they can now look at and say, "All right, here we have an award that is 20 times all the other damages together – the medical expenses and loss of wages. That’s excessive." Before, they simply had a $10 million verdict. They didn’t know what the jury ascribed to the different elements of the award.

WHL: They give judges a very clear message on the standards that they should apply. I think the culture has now changed. Look at what has happened recently. The Pa. Supreme Court changed the venue rule. It then required a certificate of merit. It then worked with the MCARE Fund. The stars are aligned in Pennsylvania with the governor’s office, the Supreme Court and the Legislature. The message is very clear that we’ve got to get a handle on this med-mal crisis and we’ve got to bring the awards and verdicts in line with common sense.

WHL: I don’t think it’s an acknowledgement by the Supreme Court that the awards have been excessively high. I think it has been, rather, an acknowledgement by the Court to make sure that the medical community is treated fairly, that a different standard had to be imposed. You now have a Court, and a leader in that Court – Chief Justice Cappy – who was willing to step up and say, "Look, we need to see what we can do to remedy some obvious problems in the system." This would never have happened six to eight years ago. I think the leadership of the Court before didn’t believe that the Court should get involved and insert itself into these kinds of issues, number one. I think you had to be living in South America not to know that there was a medical malpractice crisis in Pennsylvania, number two. Number three, I think the Supreme Court of Pennsylvania wants to be looked at as being helpful to solve this problem, at the same time recognizing there are rights for plaintiffs that have been injured and also for physician defendants.

WHL: Remember that these remittitur rules are at the end of the process, rather than the beginning of the process. This is quite frankly an attempt to deal with the situation after everything else has failed. So you can’t just look at these in a vacuum. One of the biggest rules that the Court implemented – and I was a member of the Court when it happened – was the venue rule, which basically said you’ve got to bring a lawsuit where the act of malpractice occurred. In Chester County we have Paoli Memorial Hospital. That’s a part of the Jefferson Health System. If a patient alleges malpractice against doctor X at Paoli, prior to this rule change he could sue in Philadelphia even though the doctor who committed the alleged act of malpractice didn’t have privileges at Jefferson in Philadelphia. We all know why the lawsuit was brought in Philadelphia: because the awards are higher. Juries are more generous in Philadelphia than they are in Chester County. After the venue change and the Certificate of Merit rules were passed, the filings in Philadelphia have dropped off by more than a third. And the corresponding filings in the counties surrounding Philadelphia are not up by that third. The plaintiffs bar tells me that now most plaintiffs lawyers aren’t looking at cases that don’t have really serious damages, serious economic loss, because it’s not worth it. They’re not filing cases as frequently as they used to.

Another thing Chief Justice Cappy and our committee did this Spring was write to every judicial district in Pennsylvania and said, "We’re not going to tell you how to do it, but we believe that mediation is an important element in helping to resolve the medical malpractice crisis we are facing in Pennsylvania. Accordingly, we want you to come up with your own plan. And we want to know what it is by December 1 of this year. Now, bear in mind there are a number of counties that already have mediation plans in place. Philadelphia has a mediation plan. Berks County has a mediation plan. Allegheny County has a mediation plan.

The Chief Justice and I also had a meeting with hospital CEOs and general counsels last Fall and urged them to implement a mediation plan based on Chicago’s Rush Hospital model, in which a hospital says to a plaintiff shortly after that lawsuit is filed, "We believe that this is a case that is appropriate for mediation. We have a list of mediators, some of whom are plaintiff lawyers, some of whom are defense lawyers. They have been put through a mediation education plan by us. You pick two and we will pay for it." The Chicago Rush Hospital mediates about a third of their cases and, of that third, 80 to 90 percent are successfully resolved. Drexel now has such a plan in place. Jefferson now has a plan in place. UPMC is implementing a plan. The Rush model applies primarily to health care systems where the physicians are employed by the health care system and the physician does not have a veto over a settlement decision.

WHL: The Court has accelerated the discovery deadline for pre-trial procedures in medical malpractice cases – when reports must be in and when reports must be exchanged. And the very first part of that permits anybody to file a motion for settlement conference or court-ordered mediation. That set of rules was implemented early this summer.

We learned in our committee that one of problems in medical malpractice cases is that they’re not getting looked at quickly enough by insurance companies. The MCARE Fund was not processing claims promptly and the Fund was not mediating cases. On our recommendation, the governor’s chief counsel worked with the MCARE Fund, and the Fund has now mediated about 40 cases and is becoming much more proactive, much earlier in the process.

WHL: We’ve recommended rule changes to the Supreme Court and they have referred all of those to the appropriate committee of the Court. There have been recommendations to the Supreme Court which are awaiting action. One example is the apology rule – to protect the confidentiality of statements made during mediation that takes place before a lawsuit is filed. There are some reporting issues that we are still talking about. One of the things that has been difficult is getting statistics from insurance companies, some of the private carriers. Statistics from the MCARE Fund are public record; they’re available. But private carriers have thus far been reluctant to give us information with respect to their actual payouts. You see a headline every day: "XYZ hospital and Doctor Jones hit with $40 million malpractice verdict." That doesn’t mean that $40 million gets paid out. Probably less than a tenth of that is paid out because there isn’t insurance coverage to go around for all of that. Lots of these huge verdicts get settled for much less in the way of dollars. We’re trying to find out from the insurance companies what those actual settlements are. We’ll have by the end of this year data on all of the counties’ med-cal cases that are filed, the med-cal cases that actually go to verdict, plaintiffs verdicts and defense verdicts. Those data will become publicly available. Not nearly as much in our control is getting the information from insurance companies on what they actually paid out. We’re working on it.

There is a longer term problem which I think the medical community needs to address and bring their expertise to bear in dealing with, and that is the issue of physician’s consent to settle a malpractice lawsuit. One of the largest impediments to settlement, and it’s understandable, is the physician’s reluctance to agree to a settlement because of his or her concern that, once that happens, it’s then reported to the National Practitioners Data Bank.

WHL: We’re just talking about it at this point.

WHL: Chief Justice Cappy appointed a special committee to handle that, and to my knowledge there’s been no action on that up to this point. The fate of that proposal will be to wait and see how the other reforms are moving the system, and I think that the Court has a open mind, not deciding until it hears back from that committee whether it wants to go one way or another. I think there is a concern amongst the judiciary, not just the Supreme Court, that it is troubling to enter into the attorney-client relationship, to dictate to clients and attorneys the economic relationship that they could have with one another.

WHL: We’ve done nothing with that. I’ve discussed it with the Chief Justice and it’s not been on our radar screen at all.

WHL: To my knowledge nothing has happened with that. That is pretty far down in the list of priorities, at this point.