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Disclaimer

New Rules in Medical Professional Liability Actions - March 2004

The Pennsylvania Supreme Court has announced several new rules which will affect medical malpractice cases. The new rules involve requests for settlement conferences and mediations statewide, and effective in certain counties, requests for the production of expert reports, pre-trial scheduling orders and trial scheduling conferences. The new rules were enacted March 29, 2004. The following is a summary of these new rules.

Settlement and Mediation (Rule 1042.21)

Under prior practice, efforts to settle a case could be initiated by any party or by the court. Under this new rule, only a defendant may file a motion requesting a settlement conference or mediation:

If the motion is filed without the consent of all parties, the moving defendant must certify that there is a “realistic possibility of settlement.”
If a court-ordered mediation is requested, the moving defendant must describe the mediation requested and must pay for the mediation.
The court must consider any objection to a motion for settlement conference or mediation before entering an order.

Production of Expert Reports (Rules 1042.26 - 1042.38)

The new rules regarding the production of expert reports are inapplicable to cases in counties that have a case management system (such as Philadelphia County and Allegheny County) and are also inapplicable to cases in counties that have imposed expert deadlines by court order.

Under these rules, our expert report must encompass the “best information available to the party producing a report at the time it is produced” regarding issues of professional negligence and causation of harm. However, these rules are silent with respect to production of reports pertaining to damages. Additionally, the reports submitted under these new rules still must be signed by the expert and the reports still must adhere to the well-established expert report requirements of Rule 4003.5.

A defendant can request production of expert reports from a plaintiff pursuant to Rule 1042.28 (see form at Rule 1042.36):

The request can only be made 90 days after the defendant has filed a responsive answer to the original complaint. However, the rule is silent about the time period in the event preliminary objections are filed.
Thereafter, the plaintiff will have 180 days after service of the request to provide expert reports to the requesting defendant.

A plaintiff can request production of a defendant’s expert reports pursuant to Rule 1042.29 (see form at Rule 1042.37). This request can be made only if the plaintiff has submitted expert reports that are critical of the particular defendant. Under this rule:

If the plaintiff has furnished reports pursuant to the defendant’s request under Rule 1042.28 and serves a request upon the defendant pursuant to this rule, the defendant shall have 60 days after service of the request to produce reports.
If the plaintiff has furnished reports without a request under Rule 1042.28, the plaintiff may serve a request upon the defendant 90 days after filing of the certificate of merit as to that defendant. Thereafter, the defendant will have 120 days after service of the request to produce reports.
Furthermore, if a requested defendant has filed a cross-claim against any another defendant, and a request is made by a plaintiff under this rule, the defendant must also produce those expert reports that will be offered in support of claims against other defendants. Thereafter, the defendant that has produced expert testimony critical of other defendants under this rule may move for production of expert reports from those defendants pursuant to 1042.30 (form at 1042.38).

If a party fails to produce its report(s), the new rules allow for the filing of a motion to obtain an order compelling production of the reports. Under this rule:

The court will consider the complexity of the case and the diligence of the parties in responding to discovery when deciding a motion to compel.
If the court finds that a requested party has proceeded with reasonable diligence, the court will give a reasonable time frame within which to complete necessary discovery and produce expert reports.
If the court finds that a requested party has not proceeded with reasonable diligence, the court may bar that party from producing expert testimony.
This rule also provides that a court “shall promptly consider a motion for summary judgment based solely upon a court order entered [pursuant to this rule].” Thus, a moving party under this rule should also incorporate a motion for summary judgment, which could be granted sua sponte by the trial court.

Requesting a Pre-Trial Scheduling Order (Rule 1042.41)

As with the new rules regarding production of expert reports, this rule would only apply to cases in those counties where there are no case management systems or court orders regarding the completion of discovery and production of expert reports.

Under this rule, any party may file a motion requesting the court to issue a scheduling order one year from the date the first answer has been filed by a defendant. Upon presentation of the motion, the court shall within 30 days shall either issue a pre-trial scheduling order or schedule a case management conference to establish pre-trial deadlines for the completion of discovery and production of expert reports.

Requesting a Pre-Trial Conference (Rule 1042.51)

In counties where there the court has not set a trial date, any party may file a motion requesting a pre-trial conference so long as the parties have produced expert reports or have an expert deadline order of some form in place. The pre-trial conference must be scheduled within 60 days of the filing of the motion.

However, a firm trial date will not be given at the conference. Rather, the court will furnish the parties with a “tentative” trial date, inquire as to whether parties want to participate in mediation and will set a date for another pre-trial conference (presumably to schedule a firm trial date).

This rule also provides that the court administrator for each of courts of common pleas must (twice a year) file a list of all medical professional liability cases that have not come to trial within 9 months of a pre-trial conference scheduled pursuant to this rule with the Office of the Pennsylvania Courts. Thus, it would seem that one purpose of the rule is to gather information regarding the expediency of medical negligence cases coming to trial within the state.

Posted: April 7, 2004

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