On January 1, 2023, the Supreme Court of Pennsylvania unraveled a 20-year venue rule applicable to medical professional liability cases. Under the previous venue rule, a medical professional liability action may be brought against a health care provider only in a county in which the cause of action arose, i.e., where the care and treatment occurred. Since January 1, 2023, however, plaintiffs have been able to 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.
A recent case out of Lackawanna County (Scranton) demonstrates that there is still hope for forum non conveniens motions despite the recent expansion to the venue rules. In Leone v. Gusick, No. 2023 CV 37, 2024 WL 894653 (Lacka. Co. Mar. 01, 2024) (Nealon, J.), the court held that the litigation and eventual trial in a Lackawanna County medical professional liability action commenced by Lycoming County plaintiffs would be too oppressive for the Lycoming County and Centre County physician defendants and their Lycoming County and Montour County defendant employers to remain in Lackawanna County.
By way of background, the plaintiffs filed suit on behalf of their son, who were Lycoming County (Williamsport) residents. They named as defendants a Lycoming County physician and his alleged Lycoming County employers, as well as a Centre County physician, who practiced in Clinton County, and his alleged employers, which were situated in Montour County and Clinton County. The plaintiffs alleged that their son had a brain injury dating back to 2001, for which he treated through his early teenage years. He was seen by the defendants from 2013 through 2018, who medically cleared him to play high school football and approved his return to football after head injuries in 2015 and 2017. In August 2018, their son became unresponsive after a helmet-to-helmet hit and was diagnosed with a large acute subdural hematoma with severe mass effect and a severe traumatic brain injury, resulting in paralysis to the right side of his body.
It was undisputed that no care or treatment at issue occurred in Lackawanna County. The sole basis for filing suit in Lackawanna County was that the defendants “regularly, continuously, and systematically conduct business” in Lackawanna County. The court noted that under the recent changes to the venue rules, venue against those defendants was proper given their business contacts with Lackawanna County. The defendants filed a forum non conveniens motion, requesting that the case be transferred to Lycoming County.
The court began by outlining the applicable standards, explaining that when considering a petition to transfer venue under Pa.R.C.P. No. 1006(d)(1), the plaintiff's choice of forum is entitled to weighty consideration, the party seeking a change of venue bears a heavy burden in justifying the request to transfer venue, and such a petition will not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff's chosen forum is oppressive or vexatious to the defendant. The defendants in Leone did not argue that the plaintiffs’ choice of venue in Lackawanna County was vexatious, i.e., designed to harass them. Instead, they asserted that Lackawanna County was an oppressive forum for them and their anticipated witnesses due to the burden it would impose upon their professional and familial obligations.
Before addressing oppressiveness, the court noted that it must first make a threshold finding that the specific witnesses who assert a hardship will provide testimony that is essential to the defense. In other words, courts should not consider hardships of defense witnesses who are not key to the defense or who do not possess testimony that is relevant and necessary to the defense. The defense identified the two defendant physicians and another provider at one of the defendant’s facilities, all of whom were found by the court to have been intimately involved with the care that was the subject of the lawsuit.
Regarding the issue of oppressiveness, the court reviewed the record evidence before it and found that “[t]he record submitted by the parties reflects that the relevant events in this case transpired primarily in Lycoming County and Clinton County, and to a lesser extent in Montour County, and that no pertinent incident or occurrence took place in Lackawanna County. No witness from Lackawanna County has been identified, nor does this county have any connection to [the Plaintiffs, the Defendants, and their trial witnesses].” The court pointed out that “[t]he only conceivable association that this case has with Lackawanna County” was that the plaintiffs’ Philadelphia-based attorneys maintained a Lackawanna County office.
The court found that the three individuals identified by the defense “provided compelling proof of the substantial hardships that will be imposed upon them by a trial in Lackawanna County.” This included the significant burden that would be placed on both their professional and personal responsibilities should they have to travel to Lackawanna County, which was more than 100 miles away. The plaintiffs countered with an argument that the defendants were not burdened given the availability and use of advanced communication technology. In rejecting the plaintiffs’ arguments, the court highlighted its recent opinion in Brooks v. Griffy, No. 22 CV 3250, 2023 WL 6880248, at *6-7 (Lacka. Co. 2023), wherein it held that the use of advanced communication technology only serves to mitigate inconvenience to witnesses in discovery and does not alleviate the hardship imposed upon them by their appearances at trial.
The court ultimately held that the defendants established that Lackawanna County is an oppressive forum and that the litigation and trial of this matter in Lycoming County will provide easier access to necessary witnesses and other sources of proof. The court, therefore, granted the defendants’ forum non conveniens motion and transferred the case to Lycoming County.
