Late last year, the family of a 9-year-old boy who broke his jaw at a clinic at Nemours Children’s Hospital in Montgomery County was poised to sue for negligent treatment.
Their attorney waited a few weeks hoping to maximize their chances of a successful verdict when a change in state regulations allowed them to try their case in a Philadelphia courtroom rather than in the county where the violation occurred.
» READ MORE: A major change to medical malpractice rules in Pa. could help victims, but opponents fear the cost
Philadelphia juries are typically three times more likely to rule in favor of plaintiffs than Montgomery juries, according to statistics from the Pennsylvania Administrative Bureau of Courts.
That makes Philadelphia a more promising place to file a lawsuit, said family attorney Julianna Burdo, who practices at the Wapner Newman law firm in Philadelphia. The lawsuit alleges the child passed out in an exam room and injured himself because hospital staff failed to tell his family to stay on his feet in the minutes immediately following his shot.
The rule change “gives us opportunities to hold events that didn’t exist before,” said Burdo.
Nemours did not respond to a request for comment about the incident, which the lawsuit says took place at a Collegeville ambulance.
According to that court, the number of medical malpractice cases filed in the Philadelphia Court of Common Pleas nearly tripled in January and February after the rule change went into effect, compared to the same period last year.
Those 117 cases represent the most cases filed in those two months since 2017, the court reported.
About one in four involves only defendants with out-of-town addresses, according to an Inquirer review of cases. Many likely would not have been filed in Philadelphia court prior to this year’s venue rule change.
The rule change doesn’t give attorneys the freedom to file a case anywhere in Pennsylvania. A lawsuit can be filed in another county only if at least one of the defendants conducts business there.
Cases that have started in health systems in West Reading, Bensalem and Langhorne are among the cases filed in Philadelphia civil court so far this year.
Million dollar verdicts in Philadelphia courtrooms
For the past 20 years, Pennsylvania has required that all cases of medical malpractice be filed in the county where the violation occurred, due to the increase in the number of lawsuits and the size of sentences, particularly in Philadelphia. Many blamed the court situation for driving up medical liability insurance costs and driving doctors out of the state.
The latest example of a high-profile malpractice ruling from Philadelphia came just last month when a local jury awarded $43.5 million to Chris Maragos, an ex-Eagles captain who is suing the doctors who treated his knee. It was the second highest verdict by a Philadelphia jury in a medical malpractice case in a decade, according to an Inquirer review of court records.
At least 57 other cases tried in Philadelphia courts resulted in $1 million in judgments between 2009 and 2021, the records showed.
Philadelphia’s civil division of the Court of Common Pleas also tends to move cases faster than neighboring counties, attorneys say. That’s another incentive for attorneys to file here, even though court records show that Philadelphia has a backlog of about 800 active medical malpractice cases.
Weighing Venue Shopping Concerns
Lawyers and the health care industry fear that “venue shopping”, an indication of favorable legal proceedings, will drive up the costs for the local doctor’s office again or encourage a flight of providers.
Since only about 5% of medical malpractice cases go to trial, according to the Philadelphia Court of Common Pleas, filing in a plaintiff-friendly venue can be a way of applying pressure to settlement negotiations.
“Allowing personal injury attorneys to move claims from across the state to high-payout places — particularly Philadelphia — puts the health care of all Pennsylvanians at risk,” said Liam Migdail, a spokesman for the Hospital and Healthsystem Association of Pennsylvania.
But times have changed in the two decades since the earlier restrictions were imposed, according to an August report by the Civil Law Committee of the Pennsylvania Supreme Court. Medical malpractice lawsuits and payments to victims have declined over the past 15 years, the report said.
A 2020 analysis by the Legislative and Budgetary Finance Committee also found that it was not clear that the cost of liability insurance was what prompted doctors to leave the state 20 years ago.
Limiting venues also raises fairness concerns, the court noted in its August analysis, noting that medical malpractice claims were the only personal injury claims in the state limited to the location where the event took place.
“It has really disenfranchised the plaintiffs who have brought cases of medical error,” said Burdo, the attorney now suing Nemours.
Outside of Philadelphia, juries in suburban and rural counties have a reputation for being more sympathetic to local doctors and hospitals than to plaintiffs.
“What the old jurisdiction rules did was force plaintiffs into counties where the percentage of unsuccessful cases reached 80%, 90% or even 100%,” said Steven Wigrizer, another Philadelphia trial attorney. “Health centers were big employers in these counties.”
» READ MORE: A Philly jury has awarded $43.5 million to a former Eagles captain who has sued his doctors over a knee injury
From 2017 to 2019, people who sued a healthcare provider won juries in Philadelphia about 36% of the time, according to state court data.
In contrast, Montgomery County grand juries favored plaintiffs 12% of the time, and in Lancaster plaintiffs won only 9% of the time.
Still, Philadelphia juries found in favor of the plaintiffs less frequently than juries in Chester, Bucks, and Delaware counties during the same period.
Michael Brophy, a Philadelphia attorney who has represented both plaintiffs and hospital systems, warned against reading too much into trends from the early months of the rule change. He pointed out that medical malpractice cases are complex and can take years to bring to justice.
“It’s going to take a year or two to see the results, to see if there’s an increase in filings and an increase in lawsuits,” he said.
