.

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.

Firm Highlights

Thought Leadership

Dental Malpractice

For health care providers and insurers navigating the complexities of dental malpractice risk, Marshall Dennehey delivers a disciplined, end‑to‑end defense built on deep clinical understanding and litigation experience. Our health care litigators routinely represent general dentists, oral and maxillofacial surgeons, prosthodontists, periodontists, and endodontists at every stage of a claim—from early risk assessment and pre‑suit strategy through trial and appeal—helping clients manage exposure while protecting professional reputations. With a strong command of applicable standards of care across both routine and advanced procedures, our team is well positioned to address high‑severity allegations such as surgical complications, permanent nerve injury, infection, missed oral cancer diagnoses, and jaw fractures. We also guide providers through licensing board matters, offering measured, practical counsel aligned with clinical realities. “Our priority is to give providers and their insurers clarity and control from day one,” said Robin Snyder, director of our Health Care Department. “By combining early expert insight with a practical understanding of clinical decision‑making, we are able to defend claims effectively while helping clients achieve timely, favorable outcomes.”

Thought Leadership

SIDEBAR: News and Happenings

We are pleased to share that attorneys from our health care team have been selected to the 2026  New Jersey and Pennsylvania Super Lawyers and Rising Stars lists. Their dedication to clients and commitment to high-quality work continues to strengthen our firm! Please join us in congratulating: NJ Super Lawyers: Robert T. Evers and Justin F. Johnson NJ Super Lawyer Rising Stars: Nataliana A. Guida  2026 Pennsylvania Super Lawyers: Alyson J. Kirleis and Gary M. Samms 2026 Pennsylvania Rising Stars: Holli K. Archer and Daniel Dolente Victoria Scanlon (Scranton) was a faculty presenter at the 2026 American Roentgen Ray Society (ARRS) Annual Meeting in Pittsburgh. She participated in the “Resident Symposium: Producing Quality Reports,” focusing her presentation on “How to Write a Great Report: Malpractice Lawyer’s Perspective.” Vicky, the only attorney presenter for this two-hour segment, was joined by several health care professionals including diagnostic radiologists, an interventional radiologist, an internal medicine physician, and a radiologist turned AI entrepreneur expert.  Matthew Keris (Scranton), President of the Pennsylvania Association for Health Care Risk Management (PAHCRM) and shareholder in our Scranton Health Care Department, presented an important and timely session titled “Keynote Address: A Conversation with RaDonda Vaught on Criminalizing Errors” at PAHCRM’s Annual Meeting in April. RaDonda is a former Tennessee nurse widely known for being criminally convicted in 2022 of negligent homicide and gross neglect after a 2017 fatal medication error at Vanderbilt University Medical Center. Her case gained national attention because she was criminally prosecuted rather than just facing licensing board action, sparking debate over blaming individual nurses for systemic healthcare failures. Matt and RaDonda’s conversation explored one of the most consequential issues in health care risk management today—how systems respond to human error, and what it means for patient safety, accountability, and the professionals who serve on the front lines. Gary Samms was a panelist for a podcast hosted by the Medical Liability Monitor, “From Outliers to Pattern: The Increasing Predictability of Megaverdicts in the Med-Mal Industry – and How to Reduce the Likelihood of Getting Hit with One.” Gary discussed the changing megaverdict landscape and why “outlier” verdicts are becoming structural, in addition to how plaintiffs turn weaknesses into megaverdicts (including building emotional narrative and jury psychology). Thank you to our clients who joined us for our Trends in Health Care & Health Law seminar on May 14. Led by our Health Care Department Director and Assistant Director, Robin Snyder and Donna Modestine, the session explored key issues that are currently shaping outcomes in health care litigation. We owe a debt of gratitude to our esteemed guest speaker, Mary Ellen Nepps, Esq., Senior Counsel, University of Pennsylvania, who presented “Medical Malpractice Litigation: Driving Another Health Care Crisis in Pennsylvania.” And special thanks to our attorneys who presented and shared their insights, including John J. Hare and Holli Archer who discussed “Highlights in PA Medical Malpractice Law;” David Drake for his presentation, “From Claims to Courtroom: Key Trends in NJ Medical Malpractice Litigation;” and Matthew Keris with an “Update on Health Care Tech Discovery.” Thank you to all of our clients for entrusting us with your health care litigation. We are proud to partner with you as we defend your interests and navigate legal landscapes together.

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Thought Leadership

Casual Care, Serious Consequences: How Informal Prescribing Can Trigger Medical Board Scrutiny

The lesson for health care practitioners is that regular review of the regulatory requirements can ensure compliance and that casual prescribing may be in violation of state regulations if the necessary components are not met. Consider the following scenario: in December 2025, a medical provider renewed a prescription for a long-standing telemedicine patient receiving a Schedule II controlled dangerous substance. This was not a violation of the New Jersey Administrative Code. Another provider doing the same action for an equally situated patient in March 2026 would be in violation. The casual prescriber who is not aware of newer regulatory requirements may have a more difficult time responding to a medical board complaint. Medicine is a highly-regulated helping profession. Without addressing the merits of this regulatory burden, the practice of medicine continues to see drastic changes impacting the everyday life of patient and provider. 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While broad in scope, Chapter 35 contains a subchapter dedicated to the administration and dispensing of prescription drugs. Such knowledge will arm physicians with the tools they need to prevent a negative outcome if a medical board complaint is filed. Likewise, attorneys must be familiar with these regulatory requirements when advising and defending providers. In New Jersey, N.J.A.C. Section 13:35-7.1A(a) requires that a practitioner conduct an examination and appropriately document the same within the medical record before dispensing drugs or issuing prescriptions. The examination must include an "appropriate history and physical examination," a diagnosis based upon the examination and any testing consistent with good medical care, the formulation of a therapeutic plan discussed with the patient, and the availability of appropriate follow-up care. There are only six exceptions to this requirement: In admission orders for a newly hospitalized patient For a patient of another physician for whom the practitioner is taking calls For continuation medications on a short-term basis for a new patient prior to the patient's first appointment For an established patient who, based on sound medical practice, the physician believes does not require a new examination before issuing a new prescription For a patient examined by a healthcare professional who is in collaborative practice with the practitioner When treatment is provided by a practitioner for an emergency medical condition Emergencies are also limited to situations where someone's health is in serious jeopardy, there is serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. During the COVID-19 pandemic, then New Jersey Governor Phil Murphy issued an executive order declaring a public health emergency and a state of emergency that allowed authorized prescribers to prescribe Schedule II controlled dangerous substances via telemedicine. The order was terminated when he left office earlier this year and the state reverted to the requirement of an initial in-person examination and quarterly in-person visits. With this return to prior regulatory requirements, practitioners subject to the jurisdiction of the board of medical examiners may benefit from a refresher on the regulatory limitations on their practice now that the pandemic-era flexibilities have ended. This new requirement may create confusion for prescribers and lead to casual prescribing of medication in violation of the regulations, even in the setting of recurrent telemedicine appointments as noted in the example above. Casual prescribing can take many forms: filling a prescription request from a friend or family member without an examination or contemporary medical record; using telemedicine to expand your practice without proper in-person appointments or documentation in the medical record; failing to ensure appropriate follow-up care for a "one time" prescription; etc. Although not all board complaints end in a publicly available opinion, serious deviations from regulatory requirements can shine a light on practices that will require action by the board if a complaint is received. Consider the following cases: In October 2025, the board issued a final consent order in an administrative action where a doctor provided opioids without examination and his license was permanently revoked. In re Robert Dela Gente, D.O., N.J. State Bd. of Med. Exam'rs Oct. 21, 2025. Criminal charges were filed (though that is not always the case). In a September 2025 consent order, a physician was reprimanded for "prescribing opioids several months in advance without the proper patient follow-up..." and explained that they did so for "patients who can not pay for multiple visits to refill medications." In re A/an E. Schultz, M.D., N.J. State Bd. of Med. Exam'rs Sept. 25, 2025. Another physician was suspended and placed on probation in a consent order for prescribing three patients the weight-loss medication "Ozempic" via text messages through a website called "Push Health" and without any further communication with the patients or taking a medical history. In re Laura E. Purdy, M.D., N.J. State Bd. of Med. Exam'rs Aug. 29, 2025. A June 2025 interim consent order required a "full evaluation and assessment of [a physician's] general knowledge and skill, with specific emphasis on his knowledge of and ability to safely prescribe [controlled dangerous substances]" due to his failure to review a patient's prior medical history and medical record, assess and review the prescription monitoring program before prescribing CDS, and conduct random urine screens on a patient that tested positive for CDS upon admission to his practice because "he trusted the patient." In re Donald Oh, M.D., N.J. State Bd. of Med. Exam'rs June 2, 2025. Each of these examples demonstrate a failure to follow strict procedure regardless of the intention. Failing to follow procedure secondary to good intentions, such as considering a patient's financial constraints, trust in the patient, or utilizing a new telemedicine service platform, will not be a defense to a board complaint. Especially when practicing via telemedicine, practitioners must ensure they are adhering to the appropriate regulatory standard. A provider who calls in a prescription for a traveling friend or family member or agrees to prescribe medication for individuals using the newest phone app will have a hard time meeting the requirements of N.J.A.C. Section 13:35-7.1A. Even if a history was taken, a "therapeutic plan" was created, and "follow up care" was provided, the prescriber would still not be in compliance with the regulation without an in-person examination. In our opening hypothetical, the prescriber's behavior did not change between December and March; however, the legal shift in the regulatory landscape made once acceptable behavior a violation as a required examination did not occur. When complaints are made with regard to informal prescribing, the board has discretion to employ measures to encourage compliance in lieu of formal proceedings such as a private, written warning; suspending fines subject to continuing compliance; medical or professional treatment as may be necessary; medical or diagnostic testing and monitoring; skills assessment; corrective training; participation in outreach programming; or contribution to the consumer fraud protection fund. The lesson for health care practitioners is that regular review of the regulatory requirements can ensure compliance and that casual prescribing may be in violation of state regulations if the necessary components are not met. Even compliant providers who had not conducted an in-person examination for telemedicine patients during the COVID-19 emergency would be in violation of the regulations as of January 2026 for the same practice. Practitioners should be diligent in adhering to the prescribing rules to avoid sanctions related to casual care. Likewise, attorneys advising or defending practitioners before the board must be aware of the in-person examination requirements for prescribing in New Jersey whether the care in question took place in-person or in a telemedicine setting. Reprinted with permission from the April 22, 2026 issue of the New Jersey Law Journal. ©2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.