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PA Bulletin, Doc. No. 03-2020

THE COURTS

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Rule 1042.66 Governing Remittitur in Medical Professional Liability Actions; Proposed Recommendation No. 189

[33 Pa.B. 5175]

   The Civil Procedural Rules Committee proposes that Rule of Civil Procedure 1042.66 governing remittitur in medical professional liability actions be promulgated as set forth in the recommendation. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

   All communications in reference to the proposed recommendation should be sent not later than November 14, 2003 to:

   Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
 
or E-Mail to
civilrules@pacourts.us

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS AT LAW

Subchapter B.  ACTION IN TRESPASS

PROFESSIONAL LIABILITY ACTIONS

Rule 1042.66.  Medical Professional Liability Actions. Remittitur.

   (a)  In a medical professional liability action, a defendant health care provider seeking the relief of remittitur on the ground that paying the verdict will impact upon availability of and access to health care in the community shall file within thirty days of a verdict a Motion for Remittitur Pursuant to Section 515 of Act No. 13 of 2002, the Mcare Act.

   Official Note: Section 515 of the Mcare Act, 40 P. S. §  1303.515, provides for remittitur in medical professional liability actions.

   This rule does not relieve a defendant health care provider from filing a timely motion for post-trial relief under Rule 227.1 raising other grounds for relief from the verdict, including excessiveness.

   The motion for post-trial relief and the motion for remittitur under this rule should proceed simultaneously.

   A motion for remittitur under this rule is not a motion for post-trial relief and the filing of such a motion does not enable other parties to file a subsequent motion for post-trial relief under Rule 227.1(c).

   (b)  The defendant shall set forth in the motion, with specificity, the basis for the claim that paying the verdict will impact upon availability of and access to health care in the community.

   (c)(1)  The court may, without the submission of evidence, deny a motion which is procedurally defective, is untimely filed or fails to set forth adequate grounds for relief.

   (2)   Unless the motion is denied pursuant to subdivision (c)(1), the court shall issue an order setting forth the manner in which the parties shall present evidence upon the claim of impact of paying the verdict upon availability of and access to health care in the community

   Official Note:  The court may determine the motion by means of depositions, evidentiary hearing or a combination thereof.

   (d)  If the court denies a motion for remittitur filed under this rule, it shall specifically set forth the factors and the evidence which the court considered with respect to the claim that paying the verdict will impact upon availability of and access to health care in the community.

   (e)(1)  Within one hundred twenty days of the filing of the motion, the court shall enter an order disposing of the motion.

   (2)  A judgment may not be entered if a timely filed motion is pending under this rule.

Explanatory Comment

   Proposed new Rule of Civil Procedure 1042.66 implements Section 515 of the Mcare Act, No. 13 of 2002, 40 P. S. § 1303.515 by providing for the filing in a medical professional liability action of a motion for remittitur based upon the limited ground set forth in the statute. The motion is not a substitute for a motion for post-trial relief under Rule 227.1 and any ground for the relief of a remittitur other than that set forth in the statute must be raised by a motion for post-trial relief.

   Motions filed under proposed Rule 1042.66 and under Rule 227.1 should proceed contemporaneously. Although the time within which to file each motion differs, both rules provide a one hundred twenty day period from the time of filing for disposition of the motions. Judgment may not be entered in an action while a timely filed motion is pending under the proposed rule.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 03-2020. Filed for public inspection October 17, 2003, 9:00 a.m.]


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