Recent Court Decision Potentially Expands Ability of Medical Malpractice Plaintiffs to Forum Shop in Philadelphia County

In Moody v. Lehigh Valley Hospital-Cedar Crest, et al., 179 A.3d 496 (Pa.Super. 2018), the Superior Court of Pennsylvania departed from Supreme Court of Pennsylvania precedent regarding venue transfer on forum non-conveniens grounds. It consequently appeared to heighten what a medical malpractice defendant must prove to establish that the plaintiff’s selected venue is burdensome and oppressive.

In a medical malpractice case in Pennsylvania that involves numerous health care providers, it is not uncommon for plaintiffs to strategically name a specific doctor or hospital in Philadelphia as a defendant to serve as a basis for filing the lawsuit in the plaintiff-friendly Philadelphia County Court of Common Pleas. This strategy is especially frustrating and difficult for medical defendants when, given the demands and challenges they often face treating critically ill patients, the majority of the treatment, physicians, witnesses and facilities involved are located outside of Philadelphia. In this scenario, medical defendants have relied upon the Supreme Court of Pennsylvania’s holding in Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014), to support a motion to transfer venue based upon the doctrine of forum non-conveniens.

In Bratic, the Supreme Court of Pennsylvania affirmed a venue transfer from Philadelphia to Dauphin County. All of the defendants were located in Dauphin County, all defense witnesses were located more than 100 miles away from Philadelphia, and the only connection to Philadelphia was one defendant’s occasional business dealings there. The Bratic court made it easier to establish that the plaintiff’s selected forum was burdensome. Under Bratic, a defendant only must prove that the chosen forum is vexatious or oppressive, i.e., the plaintiff’s venue choice was intended to harass the defendant, even to the inconvenience of the plaintiff, or that another venue provided easier access to witnesses and evidence. The Bratic court explained that the requisite level of oppression was not as severe as recent Superior Court cases had suggested, stating, “Mere inconvenience remains insufficient, but there is no burden to show near-draconian consequences.” The high court’s emphasis was that the Superior Court should show deference to trial court rulings transferring cases and should not subjectively overanalyze and dissect supporting affidavits that justified hardship.

In the recent Moody decision, the Superior Court came to the opposite conclusion. In this medical malpractice case filed in Philadelphia County, all but one defendant was located in Lehigh County. The plaintiffs filed a wrongful death action on behalf of their deceased daughter, claiming the defendants caused her death by medication overdose. The lawsuit named 14 defendants, including the Children’s Hospital of Philadelphia, the only defendant located in Philadelphia County.

Sacred Heart Hospital, located in Lehigh County, and its neonatologist petitioned the Philadelphia Court of Common Pleas for a venue transfer to Lehigh County on the grounds that a lengthy trial in Philadelphia would be oppressive to the small hospital and its medical providers. The neonatologist, who was the director of pediatrics and one of only two neonatologists on staff, was needed on call 24/7. Sacred Heart and Lehigh Valley Hospitals both cited physician coverage issues as well as personal childcare problems for the individual physician defendants.

The plaintiff argued that many witnesses were located in Philadelphia and the 60-mile distance was not oppressive. The plaintiff argued the neonatologist could provide on-call coverage in the evenings, pointing out that he had recently taken a two-week vacation. The trial court refused to consider this last factor, finding it infringed upon the neonatologist’s personal life.

The Philadelphia Court of Common Pleas granted the venue transfer, which the plaintiff appealed. The Superior Court reversed, holding the trial court applied the wrong legal standard for a forum non-conveniens motion. Notably, most of the opinion focused on the trial court’s analysis of the evidentiary record, micromanaging, and second guessing the trial court’s analysis of the affidavits, rather than reviewing the merits of the defendants’ claims. For instance, the Superior Court held that the trial court did not consider the totality of circumstances in refusing to consider the neonatologist’s vacation, which was proffered to rebut oppressiveness. The Superior Court held that the dismissal of this evidence as “too personal” was inconsistent with the consideration given to the defendants’ childcare issues. The Superior Court also held the trial court improperly shifted the burden of proof by criticizing the plaintiff for failing to prove that Lehigh County would be oppressive for the Philadelphia witnesses.

The Moody court cited Bratic for its statement on forum non-conveniens, but distinguished it on the grounds that the Moody decedent allegedly received negligent medical treatment at CHOP, while in Bratic, one defendant had infrequent business dealings in Philadelphia. The Superior Court was unpersuaded by the argument that CHOP had minimal culpability and was joined solely to attain venue in Philadelphia, citing to allegations of CHOP’s claimed negligence in the complaint.

The Moody court concluded there was no clear-cut evidence to indicate Philadelphia was a vexatious or harassing forum. The decision focused on criticizing the trial court’s analysis. Still unclear is how, per Bratic, the Moody defendants failed to prove oppressiveness or failed to show that Lehigh County provided easier access to witnesses. The Superior Court did not specifically explain why the evidence presented by the Lehigh County physicians and hospitals, particularly the loss of hospital staff availability, failed to rise to the level of oppressiveness. Further, the distinction made between Bratic and Moody to demonstrate greater Philadelphia ties in the latter does not discredit the oppressiveness arguments made by the Lehigh County defendants.

In conclusion, the Superior Court’s decision in Moody supports the viewpoint that the appellate court simply wanted the case to remain in Philadelphia County because one defendant was located there. As a result, contrary to Bratic, the Superior Court went to great lengths to question, criticize, and even second guess supportive affidavits fully justifying and supporting the venue transfer. This is not what the Bratic court instructed appellate courts to do. The Bratic court made it clear, based upon an abuse of discretion standard of review, that the appellate court should defer to the trial court’s analysis of the evidentiary record. The Moody opinion will now make it much harder for trial courts to successfully order venue transfers based upon forum non-conveniens where at least one defendant is in Philadelphia County, unless, of course, subsequent appellate rulings follow both the spirit and letter of the law as set forth by the Supreme Court’s unanimous ruling in Bratic.

* Jack Farrell is a shareholder in our Philadelphia, Pennsylvania office who can be reached at 215.575.2787 or jcfarrell@mdwcg.com. Rachel is an associate who also works in our Philadelphia office. She can be reached at 215.575.2882 or rcfreedman@mdwcg.com.

_{Defense Digest, Vol. 24, No. 2, June 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin 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. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}