Medical Malpractice cases in Pennsylvania are getting harder to defend.

 

We have seen the rise of nuclear verdicts[1] across the country. However, Pennsylvania appears to have exacerbated that trend with recent changes to venue rules.

 

Traditionally, conservative rural counties were far more likely to find in favor of a defendant-physician or hospital; conversely, large plaintiff verdicts were more frequently seen in larger urban venues like Philadelphia. Now, the Pennsylvania legislature has made it easier to sue a medical provider in plaintiff-friendly Philadelphia, even if case has no direct nexus to venue. Even if the medical treatment at issue occurred in conservative rural county, personal injury lawyers are attempting to sue the healthcare providers in Philadelphia.

 

Our firm has seen the effects of these rule changes firsthand – the percentage of our medical malpractice caseload is now 5 times higher than what it was as recently as 2023.

 

However, our team was recently successful in having a case removed from Philadelphia County and transferred to a more conservative, physician-favorable venue.

 

Below, I wanted to provide a step-by-step analysis of how to successfully have a case removed from an inappropriate venue.

 

1. INVESTIGATION: It is important to determine whether the plaintiff’s chosen venue in a case is proper – and it is paramount to do so as soon as the case is filed. Plaintiff’s choice of forum should be given considerable weight, and it is the responsibility of the party disputing this choice to demonstrate that it is improper. “However, a plaintiff's choice of venue is not absolute or unassailable.” Hangey v. Husqvarna Pro. Prods., 304 A.3d 1120, 1123 (Pa. 2023). This involves meeting with your client early to determine whether s/he regularly conducts business in the chosen venue. If the answer is no, you have to act fast.

2. PRELIMINARY OBJECTIONS: If the defendant does not regularly conduct business in the plaintiff’s chosen venue, a challenge should be raised by way of Preliminary Objections. The Pennsylvania Supreme Court ruled improper venue must be raised by preliminary objection and if not so raised shall be waived. Zappala v. Brandolini Property Management, 589 Pa. 516, 909 A.2d 1272 (Pa. 2006). It is critical to do this timely -- in most cases in Pennsylvania, Preliminary Objections may only be filed 20 days from service of the Complaint.

3. SUPPORTING AFFIDAVIT: Finally, there must be some evidence that venue is improper to support your Preliminary Objection. “The moving party has the burden of supporting its objections to the court's jurisdiction. Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff's evidence… The court may not reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon through interrogatories, depositions, or an evidentiary hearing.” Schmitt v. Seaspray-Sharkline, Inc., 531 A.2d 801 (Pa. Super. 1987).

 

In my view, the best supporting evidence comes in the form of a signed affidavit. Some of the facts which should be addressed in the affidavit include whether the defendant:

• regularly conducts any business in the plaintiff’s chosen venue;

• provides services in the plaintiff’s chosen venue;

• holds privileges at any hospitals or medical facilities in the plaintiff’s chosen venue;

• maintains any professional offices in the plaintiff’s chosen venue;

• has a process agent and/or registered agent in the plaintiff’s chosen venue;

• has any business contracts in the plaintiff’s chosen venue.

 

It is a huge win to remove a case from a plaintiff-friendly venue and have it transferred to a more favorable to the defendant. A venue like Philadelphia County can dramatically increase the value of a case. In some instances, a case with a low six-figure verdict potential in a conservative rural county could be worth millions in Philadelphia.

 

Following the above steps can make significant progress against the trend of filing malpractice cases in Philadelphia County. This is just one of many ways that the attorneys at my firm, Hill | Fenstermaker LLC, are working diligently to provide health care providers a fighting change in malpractice litigation.

 

[1] Nuclear verdicts refer to jury awards exceeding $10 million, often in personal injury or wrongful death lawsuits.