Pennsylvania Rule of Civil Procedure 1042.71, “Medical Professional Liability Actions. Damages. Findings”, became effective on October 1, 2004.  Joseph P. Hafer, Esquire, of Thomas, Thomas & Hafer, LLP, was a member of the Chief Justice’s Ad Hoc Committee that was responsible for drafting this rule which was then submitted to the Court for changes and approval. 

            The final Pa. R.C.P. 1042.71, as adopted by the Pennsylvania Supreme Court, provides that upon request of any party to a medical professional liability action, the jury, or trier of fact, shall make separate determinations of the amount of various claimed damages, both past and future.  The jury must determine a lump sum amount for each category of damages referred to in this rule, with the exception of future medical damages which amounts must be broken down by each future year.

            Although the Pennsylvania Supreme Court has circulated to the Judges of the Courts of Common Pleas proposed jury instructions pertaining to the damages referred to in Pa. R.C.P. 1042.71, the Supreme Court has not yet adopted any jury instructions to assist the Courts in applying Pa. R.C.P. 1042.71. 

Pa.R.C.P. 223.3

            Although the Pennsylvania Supreme Court has not adopted jury instructions to assist courts in instructing juries on awarding damages pursuant to Pa. R.C.P. 1042.71, the Supreme Court has adopted jury instructions on noneconomic damages.  Pennsylvania Rule of Civil Procedure 223.3 becomes effective on December 1, 2004. Pa. R.C.P. 223.3 is not limited to medical professional liability actions, but to any actions involving bodily injury or death. 

            The following four items are to be considered by the jury in determining the amount of a plaintiff’s noneconomic damages: pain and suffering; embarrassment and humiliation; loss of ability to enjoy the pleasures of life; and disfigurement. This is consistent with prior common law.

Pa.R.C.P. 1042.72

            Unlike Pa. R.C.P. 223.3, Pennsylvania Rule of Civil Procedure 1042.72, “Medical Professional Liability Actions. Motion for Post-Trial Relief. Excessive Damage Award for Noneconomic Loss”, does significantly differ from prior case law. This Rule becomes effective December 1, 2004.  Significantly, this rule applies to all cases for which a verdict has not been rendered prior to the effective date.

            Rule 1042.72 pertains to an award for noneconomic damages in a medical professional liability action and is not applicable to any award for medical expenses, loss of earnings or earning capacity or punitive damages.  Any defendant may include in its post-trial motion pursuant to Rule 227.1 the ground that the damage award for noneconomic loss is excessive.

            A damage award is excessive if it deviates substantially from what could be reasonable compensation.  This departs from the prior standard that an award is excessive if it “shocks the conscience”.  Criteria to be used by the court in determining whether an award substantially deviates from reasonable compensation are set forth in the Rule.  If the court finds that the damage award for noneconomic loss is excessive, the court shall remit the award.  If the plaintiff declines to accept the award as remitted, the court shall grant a new trial limited to a damage award for noneconomic loss.  It is unclear from this Rule as to whether a defendant may appeal from the court’s remittitur. 

            Any questions regarding these rules can be directed to Joseph P. Hafer, III, Esquire at (717) 255-7613 or jhafer@tthlaw.com or Stephanie L. Hersperger, Esquire at (717) 255-7239 or shersperer@tthlaw.com.