Defense Digest, Vol. 29, No. 3, September 2023

Attention All Shoppers! There Is a Blue Light Special on Forum Selection in Pennsylvania Medical Malpractice Cases

By
Robert J. Aldrich, III

Key Points:

  • On January 1, 2023, Pennsylvania’s new venue rule went into effect for medical malpractice cases. Plaintiffs may now file medical malpractice suits in any county where any defendant could be served or does business, where any transaction or occurrence giving rise to the suit took place, or where any care at issue occurred. 
  • Since January 1, 2023, the number of medical malpractice cases filed per month in plaintiff-oriented counties has doubled and, sometimes, even tripled.
  • The revival of forum shopping, coupled with post-COVID nuclear verdicts, is problematic for health care providers and our health care system as a whole.
  • Defendants must continue to litigate inappropriate venues at the trial court level while this issue is challenged on a broader scale.

On January 1, 2023, the Supreme Court of Pennsylvania’s decision to unravel a 20-year-old venue rule went into effect. This change empowers plaintiffs to file their medical malpractice cases in venues of their choosing, especially plaintiff-oriented counties, like Philadelphia. Since the rule change, forum-shopping plaintiffs have flocked en masse to Philadelphia to file their medical malpractice claims. The following discusses the impact that the venue rule change has made, thus far, on medical malpractice actions in Pennsylvania and what the future may hold. 

History of Pennsylvania Medical Malpractice Venue Laws
In 2002, Pennsylvania enacted the Medical Care Availability and Reduction of Error (MCARE) Act, which was passed in order to address dire and concerning issues impacting our courts and our health care system. Prior to the enactment of the MCARE Act, an extremely high number of medical malpractice claims were being filed throughout our Commonwealth. Also, forum shopping was in its prime and, therefore, plaintiff-oriented venues, such as Philadelphia, had a significant backlog. What is more, Pennsylvania became so litigious that it caused insurance carriers to no longer write policies and, in turn, health care providers to leave the state. This ultimately created concerns for our citizens’ access to quality health care. One way that the MCARE Act addressed these concerns was to mandate that medical malpractice actions must be filed only in the county where the care and treatment occurred. Since January 1, 2023, however, plaintiffs may now file medical malpractice suits in any county where any defendant could be served or does business, where any transaction or occurrence giving rise to the suit took place, or where any care at issue occurred. 

Doing Venue the Old-Fashioned Way
Now that the venue rules are back to the “old-fashioned way,” the statistics seem to be suggestive of our impending return to the pre-MCARE Act days. Shortly after the passage of the MCARE Act, statistics showed a significant drop in medical malpractice claims, especially in Philadelphia County. Since January 1, 2023, however, filings in Philadelphia have skyrocketed. By way of comparison, from 2017–2022, Philadelphia County averaged 31 new medical malpractice cases per month. Last year, a total of 275 medical malpractices were filed in Philadelphia. However, as of the end of May 2023, Philadelphia already had a total of 258 new medical malpractice cases—an average of 52 cases per month. Based on these numbers, Philadelphia is on pace to have well over 600 medical malpractice cases filed in 2023. According to the medical malpractice statistics published by the Administrative Office of Pennsylvania Courts, Philadelphia County has never had over 600 cases since the MCARE Act was enacted in 2002. 

Philadelphia is not the only county feeling the impact of the venue change. Lackawanna County, for example, averaged approximately 35 medical malpractice cases filed per year from 2017–2022. As of June 2023, however, there have already been 32 cases filed. Given the influx of cases in plaintiff-oriented counties, there has likely also been a drastic decrease in the number of cases being filed in conservative venues.

While defendants can challenge forum shopping by seeking to transfer cases to different counties based upon the doctrine of forum non conveniens, the likelihood of success will be low, as courts give significant weight to a plaintiff’s choice of forum. For example, in Hangey v. Husqvarna Pro. Prod., Inc., 247 A.3d 1136 (Pa. Super. 2021), the Superior Court found that venue in Philadelphia was proper for a defendant corporation who did 0.005% of its national business there. In Estate of Quigley v. Pottstown Hospital, et al., 286 A.3d 1240, 1242 (Pa. Super. 2022), the plaintiff alleged that the decedent was sexually assaulted while she was a patient at Pottstown Hospital, located in Montgomery County. The plaintiff filed suit in Philadelphia County and named not only Pottstown Hospital as a defendant but also its owner, Tower Health. The plaintiff acknowledged that Pottstown Hospital did not conduct any business in Philadelphia but argued that its owner, Tower Health, regularly conducted business there because it owned, controlled, and had authority over other Philadelphia subsidiaries, which admittedly were unrelated to Pottstown Hospital. The Superior Court ultimately held that Tower Health’s contacts with Philadelphia were sufficient for venue to remain there. 

These cases illustrate the difficulty of getting a case transferred out of a plaintiff-oriented venue. The chances of success may be even lower due to the recent increased usage of Zoom and other advanced communications technologies. The ability to reach the oppressive and vexatious standard necessary for witnesses to travel far distances to the county in which suit is filed may hold a lot less water when their appearances can be secured virtually.

Nuclear Verdicts
The recent venue rule change is compounded by the post-COVID nuclear verdicts plaguing Pennsylvania. In September 2022, a Philadelphia jury awarded $19.7 million to a woman who alleged that her primary care physician failed to diagnose her spinal cord lesion, leading to permanent spinal-cord damage, ambulatory dysfunction, and incontinence. In February 2023, a Philadelphia jury took less than three hours to award a former Philadelphia Eagles player $43.5 million in a medical malpractice case involving an alleged career-ending negligent orthopedic surgery. 

These two verdicts are pennies compared to the $182.7 million verdict issued by a Philadelphia jury on April 26, 2023, in a birth-injury case. It was alleged in that case that the minor-plaintiff suffered severe and profound hypoxic ischemic encephalopathy and cerebral palsy, resulting in substantial neurodevelopmental delays, as a result of a negligent delay in performing a C-section and a delay in administering an antibiotic to treat an intra-amniotic infection. The jury’s verdict consisted of $10 million in past non-economic loss, $70 million in future non-economic loss, $1.7 million in future lost earnings, and the remainder for future medical expenses. The verdict became the highest verdict in a medical malpractice case in the history of the Commonwealth of Pennsylvania.

These post-COVID nuclear verdicts are not limited to Philadelphia. We are seeing them throughout the state. For example, in Luzerne County—located, in Wilkes-Barre, which has traditionally been somewhat of a conservative venue—a jury awarded $26 million in a November 2022 trial where the plaintiff alleged a failure to timely and appropriately treat a lower extremity vascular condition, leading to an above-the-knee amputation.

What Does the Future Hold? 
When it comes to our health care system in Pennsylvania, the venue rule change could not have come at a worse time. Hospitals and health care organizations continue to grow on a corporate level through integrations and various mergers and acquisitions. Nursing homes continue to be purchased by large national and regional chains. When applying the current venue rule to the current framework of our health care system, plaintiffs will likely have a relatively easy time establishing that a defendant in a medical malpractice does business in the county of their choosing or could be served there. 

The revival of forum shopping, coupled with post-COVID nuclear verdicts, may be the perfect storm that sends medical malpractice litigation back in time to the pre-MCARE Act ages. In order to correct the recent venue rule change, it will need to be addressed at a high level and on a broad scale. There is hope. There are various organizations and initiatives that continue to push the Civil Procedural Rules Committee, the legislature, and our appellate courts to reconsider the venue rule change. Only time will tell as to whether history will repeat itself. In the meantime, defendants must continue to litigate inappropriate venues at the trial court level by making a detailed record showing why a particular venue is onerous and unnecessarily oppressive or vexatious to the parties and witnesses. 

*Rob is a shareholder in our Scranton, Pennsylvania, office. He can be reached at 570.496.4658 or RJAldrich@mdwcg.com. 

 

Defense Digest, Vol. 29, No. 3, September 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.