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REMITTITUR OF NON-ECONOMIC DAMAGES IN MEDICAL MALPRACTICE ACTIONS
Susy O. Cho, Esq. and David S. Cohen, Esquire
The Superior Court of Pennsylvania recently examined the standard and considerations that the trial court must employ when deciding motions for remittitur of non-economic damages in medical malpractice cases. Vogelsberger v. Magee-Womens Hospital of UPMC Health System, et al. Under the new standard enunciated in Pa.R.C.P. 1042.72(b), "a damage award is excessive if it deviates substantially from what could be reasonable compensation". The Superior Court also held, as a matter of first impression, that the medical malpractice plaintiff can immediately appeal the order granting a new trial, once the trial court enters an order for a new trial following plaintiff's rejection of remittitur of an award for non-economic damages. See Vogelsberger; Pa.R.A.P. 311(6).
Historically, in March of 2002, as part of the medical liability reform measures, the General Assembly specifically addressed remittitur in medical malpractice actions within the Medical Care Availability and Reduction of Error (MCARE) Act. See 40 P.S. §1303.515. In response to the remittitur provision in the MCARE Act, on September 17, 2004, the Pennsylvania Supreme Court promulgated associated rules of civil procedures, specifically Pa.R.C.P. 1042.72 for additional guidance on motions for post-trial relief concerning excessive damage award for non-economic loss in medical malpractice actions.
In Vogelsberger, the plaintiff filed a medical malpractice action against the physician and the hospital arising out of a hysterectomy. The case proceeded to trial before a jury, and the jury returned a verdict against the physician and the hospital for non-economic damages. The defendants filed post trial motions seeking remittitur of the verdicts, and the trial court reduced the non-economic damages award in the aggregate amount from $600,000 to $200,000. The plaintiff appealed and challenged the trial court's grant of remittitur of the jury verdict award of non-economic damages.
The Superior Court panel determined that trial court correctly followed the MCARE Act guidelines and Pennsylvania Rules of Civil Procedure and concluded that the new standard set forth in Pa.R.C.P. 1042.72(b) is more flexible with respect to remittitur of non-economic damages in medical malpractice cases than the "grossly exorbitant" or "shocks the conscience of the court" standard traditionally employed by the courts when deciding motions for remittitur of non-economic damages. The defendant still has the burden of convincing the court that the award "deviates substantially from what could be reasonable compensation" pursuant to this new standard. The decision to grant or deny a motion for remittitur still remains within the sound discretion of the trial court. Corrozza v. Greenbaum. In deciding whether the "deviates substantially" standard is met, the trial 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 passion or prejudice". Vogelsberger, supra.
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