Malpractice Arbitration: Is Pennsylvania's System Dead or Alive?
Legal Aspects of Medical Practice
Publication of the American College of Legal Medicine
July 1981

By: Gayle R. Lewis, Esq.

The Arbitration Panels for Health Care (APHC) and its legislative mandate in the Health Care Services Malpractice Act, referred to as Act III, were dealt a serious blow on September 26, 1980, by the Pennsylvania Supreme Court's decision in Mattos v. Thompson. That decision declared unconstitutional Section 309 of the Act, which had granted original, exclusive, and mandatory jurisdiction to the APHC over all medical negligence cases involving health-care providers, if the alleged incident giving rise to the claim occurred (or the patient first learned of it) after January 13, 1976. Since that date, 3,925 claims had been filed statewide. As of September 30, 1980, four days after the decision was rendered, there were still 2,879 claims pending disposition. Measured in sheer numbers, the effect of the decision is staggering.

The Attorney General's Office responded quickly to the decision. On October 14, 1980, it issued an opinion declaring that the Arbitration Panels system was voluntary, stating:

While the courts declared unconstitutional the systems original, exclusive jurisdiction to hear and decide health care malpractice claims, it is our opinion that it left intact the remaining section of the act relating to the arbitration systems (emphasis added).

The resulting voluntary system required that all parties consent to an arbitration panel's jurisdiction or elect to transfer out of the system to the appropriate court of common pleas. The deadline for election was December 15, 1980.

As of January 31, 1981, 2,157 cases had been transferred to the courts leaving 357 cases in the office of APHC.

The nine-county area surrounding and including Philadelphia had 2,312 claims filed since January 13, 1976; 545 had been filed in Allegheny County (Pittsburgh); no claims had ever been filed in 7 rural counties and 1,068 claims arose in the remaining 53 counties of the state.

The Mattos decision of the Supreme Court of Pennsylvania has jeopardized the entire concept of arbitrating medical malpractice claims. It follows a trend noted in several other states whose high courts have declared their programs unconstitutional. Medical arbitration programs, to be sure, have had their share of problems. However, it is debatable whether they are the "resounding flop" portrayed by the courts or, alternatively, a viable framework, which with certain modifications will ultimately reduce medical negligence litigation.

Gayle Lewis was formerly deputy administrator of the Arbitration Panels for Health Care in Pennsylvania. She is now in private practice in Philadelphia. The opinions expressed in this article are solely hers. Ms. Lewis wrote a similar article for the March 1981 issue of Pennsylvania Medicine