Karen "Missy" E. Minehan

Key Points:

• Recent Pennsylvania Supreme Court actions may dramatically broaden the counties in which plaintiffs may file medical malpractice actions.
• Such actions can now be filed and litigated hundreds of miles from the facility where care was provided, where the witnesses live or work, and even where the plaintiffs themselves live.

The Pennsylvania Supreme Court’s amendment of Pennsylvania Rule of Civil Procedure 1006, combined with the Pennsylvania Superior Court’s reduction in the threshold for venue in Hangey v. Husqvarna Professional Products, Inc., 247 A.3d 1136 (Pa. Super. 2021), alloc. granted, 278 A.3d 301 (Pa. 2022), have the potential to dramatically broaden the counties in which plaintiffs may file medical malpractice actions. Gone are the days when medical malpractice actions were venued solely in the county where the cause of action arose. Now, such actions can be filed and litigated hundreds of miles from the facility where care was provided, where the witnesses live or work, and even where the plaintiffs themselves live.

By order dated August 25, 2022, the Supreme Court 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.” 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 civil cases. This significant change became effective on January 1, 2023.

What will it mean going forward? It means that medical malpractice cases now may be filed where a defendant may be served, the cause of action arose, or a relevant transaction or occurrence took place. This is crucial because, just as the former medical malpractice venue rule was being rescinded, so, too, were the usual venue rules being relaxed. In the non-medical malpractice context, venue is generally determined by assessing whether a defendant’s contacts with the plaintiff’s chosen venue are of sufficient quantity and quality. Although there was never a hard-and-fast rule, the quantity test traditionally has been satisfied if the defendant does about 1% or more of its business in the plaintiff’s chosen venue. This percentage standard was viewed as fair because it applied equally to large and small businesses.

However, in Hangey, the Superior Court en banc (by a vote of 7-2) made it much easier for plaintiffs to obtain venue over businesses in counties other than the county where the cause of action arose. In particular, the Superior Court held that venue could lie over a defendant who does only .005% of its business or $75,000 in total business in a forum. This extremely low volume of business expands the ability of plaintiffs to secure venue in locations with minimal connection to the lawsuit. On May 10, 2022, the Supreme Court accepted review in Hangey and it will hear argument in March of 2023. The Supreme Court could reverse, affirm, or even further dilute the low venue standard adopted by the Superior Court in Hangey. In the meantime, Hangey is currently the law and will also dilute the new venue standard that applies to medical malpractice cases, effective January 1, 2023, as a result of the Supreme Court’s amendment to Rule 1006.

The Superior Court continued to pick away at the venue standard in Quigley v. Pottstown Hospital, LLC, 2022 WL 17347500 (Pa. Super. Dec. 1, 2022). In that case, the plaintiff alleged that the deceased, an elderly dementia patient, was sexually assaulted while a patient of Pottstown Hospital in Montgomery County. The trial court transferred the case from Philadelphia County to Montgomery County. The Superior Court reversed the transfer and returned the case to Philadelphia. The Superior Court held that the case should not have been transferred to Montgomery County because Tower Health, the hospital’s parent company and co-defendant, regularly conducted business in Philadelphia County through its unrelated subsidiaries.

Specifically, the Superior Court found that Tower Health had the requisite quality and quantity of contacts with Philadelphia County because it: (1) owned multiple Philadelphia properties, an acute-care hospital, two urgent care facilities, and a children’s hospital; (2) was the managing partner of an LLC that owned a Philadelphia children’s hospital; (3) conducted medical billing of its subsidiary hospitals through a Philadelphia post office box; and (4) actively asserted control and authority over its subsidiaries by procuring insurance policies, providing them with general counsel, conducting hospital CEO performance reviews and disciplinary actions, ratifying the hospital’s Board of Directors, and implementing acute care hospital federal mandates. Hence, although the cause of action arose in Montgomery County, and even before the implementation of the new Rule 1006 on January 1, 2023, the Superior Court found venue proper in Philadelphia. This decision attributed the activities of related corporations to Pottstown Hospital in a way that is new to Pennsylvania law, which has traditionally respected corporate formalities and not eroded those formalities by attributing the acts of one corporation to another.

Many major health systems, parent companies, and long-term care “home offices” have a presence in Pennsylvania’s pro-plaintiff hotbeds (especially Philadelphia, Allegheny, Lackawanna, and Luzerne Counties). Hence, when we combine the impacts of the venue rule change, Hangey, and Quigley, it seems that Pennsylvania is returning to a time when plaintiffs can file suit in nearly any venue, regardless of whether that venue has any legitimate connection to the facts, litigants, or witnesses.