Philly’s medical malpractice cases are surging since a new state rule went into effect

Late last year, the family of a 9-year-old boy who fractured his jaw at a Nemours Children’s Hospital clinic in Montgomery County was ready to sue for negligent care.

Their lawyer waited a few weeks, hoping to maximize their chances of a successful verdict when a change in state rules allowed them to try their case in a Philadelphia courtroom, instead of the county where the injury occurred.

» READ MORE: Major shift in medical malpractice rules in Pa. could help victims, but opponents fear the cost

Philadelphia juries tend to decide medical malpractice cases in favor of plaintiffs three times more often than Montgomery juries, according to statistics kept by the Administrative Office of the Pennsylvania Courts.

That makes Philadelphia a more promising venue for a lawsuit, said the family’s attorney, Julianna Burdo, who practices with the Philadelphia firm Wapner Newman. The suit claims the child passed out and injured himself in an examination room because hospital staff failed to tell his family he needed to stay off his feet in the minutes immediately after getting his shot.

The rule change “provides us with venue options that didn’t exist before,” Burdo said.

Nemours didn’t respond to a request for comment on the incident, which the lawsuit claims happened at an outpatient clinic in Collegeville.

The number of medical malpractice cases filed in Philadelphia’s Court of Common Pleas almost tripled in January and February, after the rule change took effect, compared to the same period last year, according to data from that court.

These 117 cases represent the most filed for these two months since 2017, the court reported.

About one in four involve only defendants with addresses outside of the city, according to an Inquirer review of the cases. Many likely wouldn’t have been filed in Philadelphia court before this year’s venue rule change.

The rule change doesn’t free lawyers to file a case anywhere in Pennsylvania. A suit can only be filed in a different county if at least one of the defendants does business there.

Cases that started in health systems in West Reading, Bensalem, and Langhorne are among those filed so far this year in Philadelphia’s common pleas civil court.

For the past 20 years, Pennsylvania required all medical malpractice cases to be filed in the county where the injury happened, following a rise in the number of court cases and the size of the verdict awards, especially in Philadelphia. Many blamed the court situation for boosting the cost of medical liability insurance and driving doctors out of the state.

The latest example of an eye-popping malpractice verdict out of Philadelphia came just last month when a local jury awarded $43.5 million to Chris Maragos, an ex-Eagles captain who sued the doctors that treated his knee. It was the second highest verdict a Philadelphia jury awarded in medical malpractice case in a decade, according to an Inquirer review of court data.

At least 57 other cases tried in Philadelphia courts returned verdicts higher than $1 million between 2009 and 2021, the records showed.

Philadelphia’s civil division of the court of common pleas also tends to move cases along more quickly than neighboring counties, lawyers 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.

Lawyers and the health-care industry fear “venue shopping,” a reference to the practice of filing cases in courts favorable to the person suing, will again drive up the costs of practicing medicine here, or spur a provider exodus.

Because 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 to seek leverage in settlement negotiations.

“Allowing personal injury lawyers to move claims from all over the state to venues with histories of high payouts — particularly Philadelphia — puts all Pennsylvanians’ health care at risk,” said Liam Migdail, a spokesperson for the Hospital and Healthsystem Association of Pennsylvania.

But times have changed in the two decades since the earlier restrictions were imposed, an August report from the Pennsylvania Supreme Court’s civil rules committee suggested. Medical malpractice lawsuits and payments to victims have declined over the past 15 years, the report stated.

A 2020 analysis from the Legislative and Budget Finance Committee further found it wasn’t clear that the cost of liability insurance drove doctors to leave the state 20 years ago.

Restricting venues also raises fairness concerns, the court’s August analysis noted, finding that medical malpractice suits were the only personal injury claims in the state limited to the venue where the event occurred.

“It was really disenfranchising plaintiffs who were bringing medical error cases,” 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 plaintiffs.

“What the old venue rules did was to force plaintiffs into counties where the percentage of cases that were unsuccessful approached 80, 90, or even 100%,” said Steven Wigrizer, another Philadelphia trial attorney. “Health centers were huge employers in these counties.”

» READ MORE: A Philly jury has awarded $43.5 million to a former Eagles captain suing his doctors over a career-ending knee injury

From 2017 to 2019, people suing a health-care provider won jury trials in Philadelphia about 36% of the time, according to state courts data.

Montgomery County juries, by contrast, favored the plaintiffs 12% of the time, and in Lancaster, the plaintiffs won only 9% of cases.

Still, Philadelphia juries ruled in favor of plaintiffs less often than those in Chester, Bucks, and Delaware counties during the same period.

Michael Brophy, a Philadelphia lawyer who has represented both plaintiffs and hospital systems, cautioned against reading too much into trends from the first months of the rule change. He noted medical malpractice cases are complex and can take years to bring to trial.

“This is going to take one to two years to see the results, to see if there’s an increase in filings, an increase in trials,” he said.