On March 29, 2004 the Supreme Court modified Rules regarding Pre-Trial procedures in medical professional liability actions. See new Pa. R.C.P. 1042.21, 1042.26-1042.32, 1042.36-1042.38, 1042.41, and 1042.51. These Rules mainly concern voluntary submission of cases for settlement conference or mediation, and Rules governing expert reports.
Under Pa. R.C.P. 1042.21, a healthcare provider may file a Motion with the Court requesting a settlement conference or mediation, and this is to be done prior to the exchange of expert reports. If the Motion is filed without the consent of all parties and seeks mediation (versus a settlement conference), the moving health care provider bears the costs of mediation.
Most of the other new Rules modify already-existing Rules on expert reports and apply only in those cases where case management deadlines are not established “by court order or otherwise.” Pa.R.C.P. 1042.26(b). A malpractice defendant may make a specific request for production of expert reports on the plaintiff and may serve his request anytime after 90 days following that defendant’s filing of an Answer to the Complaint. Once the request is made, the plaintiff has 180 days to furnish expert reports on issues of negligence.
Likewise, a plaintiff who has produced expert reports on liability may request the defendant’s expert reports, and the defense must produce reports within 60 days. If the plaintiff has furnished his expert report without the defendant’s formal request, he may only serve the request for defense expert reports after 90 days following the filing of a Certificate of Merit. The defendant’s expert report would then be due 120 days later.
Two additional new Rules specifically permit Scheduling Orders and Pre-Trial Conferences in medical malpractice cases, and mainly effect those counties which do not already have formal Scheduling Conferences as a matter of course. Under Pa R.C.P. 1042.41, a party may request a Scheduling Order any time after 1 year from the date the first Answer was filed. The Order is to include discovery completion and expert report production dates. Under Pa. R.C.P. 1042.51, any party may file a Motion to Schedule a Pre-Trial Conference, once expert reports on liability have been exchanged.
The Order promulgating these Rules was issued March 29, 2004 by the Supreme Court, and these Rules are effective immediately and apply to all currently pending actions.
Any questions regarding these Rules changes can be directed to Daniel L. Grill (dgrill@tthlaw.com) at 717-237-7115 or James Dodd-o (jdoddo@tthlaw.com) at 610-332-7000.