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Legal Updates for Health Care Liability

Medical Malpractice Venue Rule Overturned

Legal Update for Health Care Liability - August 26, 2022

August 26, 2022

by John J. Hare and Robin B. Snyder

By Order dated August 25, 2022, effective January 1, 2023, the Supreme Court of Pennsylvania amended Pennsylvania’s venue rule, Pa.R.Civ.P. 1006, by deleting Rule 1006(a.1), which provided that medical malpractice actions must be filed “only in a county in which the cause of action arose.” Although this Rule change will not take effect until January 1, 2023, it will significantly change where many medical malpractice actions are filed.

The effect of deleting Rule 1006(a.1) is to make medical malpractice actions subject to the same venue standards that apply to all other types of cases, which may be filed where (in relevant part) a defendant may be served, the cause of action arose, or a transaction or occurrence took place out of which the cause of action arose.

Yesterday's Rule change will significantly expand the counties in which medical malpractice actions may be filed, with an expected increase in certain counties, primarily Philadelphia.

This change eliminates a centerpiece of the Supreme Court’s own tort reform effort 20 years ago. By Order dated January 27, 2003, the Court promulgated Rule 1006(a.1) requiring medical malpractice actions to be filed only where the cause of action accrued. The result was a significant decline in medical malpractice filings statewide.

The Order accompanying the Rule change states: “This Order shall be processed in accordance Pa.R.J.A. 103(b), and shall be effective January 1, 2023.” This language likely means that the amendment to Rule 1006 will apply to actions filed on or after January 1, 2023, regardless of when the cause of action accrued. When the Supreme Court promulgated Rule 1006(a.1) in 2003, the effective date applied to filings, and this Rule change likely will apply the same way.

When Rule 1006(a.1) was promulgated in 2003, many plaintiffs rushed to file their medical malpractice actions before the Rule change took effect. We will likely now see the reverse trend: plaintiffs will wait until on or after January 1, 2023, to file new actions in venues that they view as more favorable.

Finally, in addition to Rule 1006(a.1), there is a statute—42 Pa.C.S.A. § 5101.1(b)—that requires medical malpractice actions to be filed where the cause of action arose. However, that statute was declared unconstitutional in North-Central Pennsylvania Trial Lawyers v. Weaver, 827 A.2d 550 (Pa. Cmwlth. 2003), on the basis that venue is a matter for the Supreme Court, not the legislature. Yesterday’s Order suspends any statute that is inconsistent with Rule 1006 as amended, so it is likely that the amended Rule, not the statute, will govern venue in medical malpractice cases beginning on January 1, 2023.

 

Legal Update for Health Care Liability - August 26, 2022, has been prepared for our readers by Marshall Dennehey. It is solely intended to provide information on recent legal developments,and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to tamontemuro@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved.

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Appellate Division Affirms Dismissal of Legal Malpractice Counterclaim Against Martin Law Firm

In Martin v. Loury, 2026 N.J. Super. Unpub. LEXIS 1617 (App. Div. July 15, 2026), Martin Law Firm represented Kirk Loury in an employment matter Mr. Loury filed against his former employer, Concord Equity Group Advisors LLC (“Concord”). The allegations included, among other things, that Loury was not fairly compensated for his employment with Concord. After a bench trial finding in Loury’s favor, the Appellate Division remanded this matter in February 2016 for a second trial. During the second trial, Concord CEO, Lee Argush, testified to lower compensation estimate than first trial. On remand, the second trial judge awarded Mr. Loury the same damages as the first judge, finding Mr. Argush not credible. After the findings during the second trial, Martin Law Firm filed an action against Mr. Loury to recover legal fees and costs of representing Mr. Loury in a second bench trial and Mr. Loury filed a counterclaim against Martin Law Firm for legal malpractice, alleging he should have received an even higher award in the second bench trial. In this allegation, Mr. Loury, through his expert, claimed that Martin Law Firm should have recalled Mr. Loury to the stand to rebut Mr. Argush’s testimony to allege an alternative theory of damages. Mr. Loury’s expert admitted that the second judge already rejected Mr. Argush's theory and accepted Loury's damages theory. The trial court barred Mr. Loury’s expert and dismissed Loury's counterclaim with prejudice before convening the collection trial, and the jury ruled in Martin Law Firm’s favor. Mr. Loury appealed the trial court's pretrial rulings barring his liability expert from testifying in support of his legal malpractice counterclaim, denying his motion for summary judgment on that counterclaim, and denying his motion to amend his counterclaim by adding attorney Joseph A. Martin as a codefendant. In affirming the trial court’s decision, the Appellate Division held that the trial court properly excluded Loury’s expert testimony in the counterclaim against Martin Law Firm because the expert could not explain how calling Loury as a rebuttal witness would have increased damages when the second judge already rejected Mr. Argush's testimony and accepted Loury's damages theory, making the expert’s causation opinion speculative. The Appellate Division also held that the trial court properly denied Mr. Loury's summary judgment motion on his malpractice counterclaim because reasonable minds could differ on whether Mr. Martin's alleged failures would have changed the second judge's damages award, given the judge already found Mr. Argush not credible, creating genuine factual disputes precluding summary judgment. Also, the Appellate Division held that the trial court properly denied Loury's May 2023 motion to add Joseph Martin individually because the statute of limitations expired in February 2022, six years after the 2016 appellate remand when Mr. Loury incurred new legal costs, and relation back did not apply because Mr. Loury knew Mr. Martin's identity throughout and strategically chose to sue only Martin Law Firm in his 2019 counterclaim.

Event

Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

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