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Defense Digest

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

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

September 1, 2023

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.

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Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

blue facade of a hospital sign against blue sky

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Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. 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As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

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Thought Leadership

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.

empty courtroom photo

Result

Summary Judgment Secured for Life Insurance Agent