Venue Without Borders: How Pennsylvania’s 2023 Rule Amendment Reshaped Long-Term Care Litigation

In a recent article published by The Legal Intelligencer, Joel Fishbein analyzes the Pennsylvania venue ruling and how it has and will continue to affect senior living facilities throughout the state.

“Whether the ultimate solution comes through legislative action, renewed review by the Supreme Court, or further judicial interpretation, the available data suggests that the 2023 venue amendment has had, and will continue to have, significant consequences for long-term care providers,” Fishbein wrote. “A comprehensive empirical review – precisely the review originally contemplated by the court – would provide policymakers with a stronger factual basis for determining whether the rule has achieved an appropriate balance between access to justice and the continued availability of long-term care services throughout the commonwealth.”

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The 2023 Amendment

The Pennsylvania Supreme Court’s 2023 amendment to the venue rules has significantly altered where long-term care providers may be sued. Although the rule applies broadly to health care providers, its effects on skilled nursing facilities and assisted living communities have been particularly significant because many operators conduct business in multiple counties, including Philadelphia.

Long-term care operators face daunting challenges to their business. Reimbursement rates controlled by federal Medicare and state and federal Medicaid limit the amount operators can charge. Compliance with state and federal regulations requires the commitment of enormous resources, and the costs of litigation add to the financial burden required to operate senior living communities. A drive down Interstate 95 in Philadelphia, or one session of late-night commercial television, illustrates the extent to which nursing homes are the target of advertising by attorneys ready to file lawsuits. Operational, staffing and regulatory hurdles following the pandemic exacerbated these problems. These financial realities have led to closures of communities and a loss of beds needed for our increasingly aging population.

Against this backdrop, effective Jan. 1, 2023, the Pennsylvania Supreme Court amended the venue provisions found in the Pennsylvania Rules of Civil Procedure, Rules 1006, 2130, 2156 and 2179 to make it possible to sue long-term care providers in Philadelphia for care rendered outside of Philadelphia. Because of the rule change, plaintiffs can file suit in any county in which the defendant provider can be sued; that is, in any county in which the company does business through operations other than the one that provided the care at issue.

Why the Special Venue Rule for Medical Malpractice Defendants Was Adopted in 2002

Before Jan. 1, 2023, the venue rule, in place since 2002, required that medical providers be sued for malpractice where they delivered the care. The 2002 venue rule was enacted as part of the Medical Care Availability and Reduction of Error Act (MCARE) of 2002. MCARE represented a bipartisan response to what was then called the Pennsylvania medical malpractice crisis.

Because of jury verdicts in Philadelphia County, it was widely reported that medical malpractice insurance was becoming prohibitively expensive, and doctors in high-risk specialties were leaving or choosing not to practice in the commonwealth. After the 2002 venue rule change, filings of medical malpractice suits in Philadelphia County diminished, and the medical malpractice insurance market stabilized.

Arguments For and Against Repeal

Proponents of repealing the venue rule argue that the MCARE’s venue rule gave special treatment for health care providers denied to businesses in every other industry creating an uneven playing field unfairly and unnecessarily favoring medical providers leading to inconsistent justice. Opponents of repeal argue that MCARE’s venue provision helped to eliminate the very problems it was designed to address, that those problems would return with repeal, and that there is nothing wrong with the justice administered by a jury of the plaintiffs’ peers in the county where the care happened.

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Opponents of repeal also point to data maintained by the Pennsylvania Supreme Court since 2002 as part of MCARE, which shows the dramatically higher percentage of Philadelphia cases resulting in jury verdicts in favor of plaintiffs and, the dramatically higher amounts awarded by those juries.

Indeed, in all of the years during which the Supreme Court compiled this data, Philadelphia County accounted for the highest (or one of the highest) percentage of plaintiffs’ verdicts and the most jury awards exceeding $1 million. This suggests that providers with operations in Philadelphia may face increased litigation exposure and, if cases proceed to trial there, greater potential verdicts. If current filing trends continue, increased exposure to Philadelphia litigation may place upward pressure on liability insurance premiums, potentially contributing to additional facility closures.

Early Evidence of the Impact of the New Rule

Since repeal, according to statistics compiled by The Philadelphia Inquirer in November 2024, 43% of new medical malpractice cases filed in Philadelphia County involved care provided outside of the city. My office, with the invaluable assistance of summer associate Noah Jaffe, scoured the Philadelphia County dockets and found that over 200 lawsuits against nursing homes and assisted living providers were filed in Philadelphia County for care outside the city between Jan. 1, 2023, when repeal took effect, and June 30, 2026.

In its Aug. 25, 2022, order enacting the new venue rule to be effective Jan. 1, 2023, the Supreme Court included a provision requiring that the civil procedural rules committee “reexamine the 2022 rule amendments two years after their effective date.” The two-year review period expired without any public evidence of any reexamination. Then, on Feb. 18, 2026, after having been pressed to make public the results of the required “reexamination,” and with no explanation, the Supreme Court simply rescinded the part of its Aug. 25, 2022, order requiring reexamination. Thus, there has been no official and comprehensive analysis of the impact of the rule change, though there is anecdotal evidence that the impact has been dramatic. The only way to know for sure is for the reexamination to actually happen.

Practical Consequences for Long-Term Care Providers

Beyond the increased likelihood of litigation in Philadelphia, the amended rule creates significant practical burdens for facilities and their employees. The administrators and nurses will be called to Philadelphia from counties as far away as York and Cumberland to defend the care they provided, requiring them to be away from their families and residents for the duration of the trials, which take between one and two weeks. This is true for caregivers and family witnesses who most likely live within close driving distance to the local county courthouse rather than the three hours it would take to get to and from Philadelphia.

While there are procedural avenues available to parties sued in an inconvenient venue to seek a change in venue, practitioners have reported numerous incidents of such motions being denied with no explanation and no right to appeal until the conclusion of the trial. This issue also warrants analysis if the reexamination initially ordered by the Supreme Court happens.

In order to ameliorate the impact of the rule, providers have implemented choice of venue provisions in admission agreements to limit the impact of the new rule. These provisions are enforceable.

Long-term care providers can also avoid the impact of this rule by including arbitration provisions in their admissions agreements. These too are enforceable. However, both venue selection and arbitration provisions must be voluntary, and they are not a solution to the problem created by the venue rule.

Potential Legislative and Judicial Responses

The Pennsylvania Senate state government committee is considering a bill to reinstate the MCARE venue provision. Michael Jacobs, the president and CEO of the Pennsylvania Health Care Association (PHCA), which represents long-term care access across the commonwealth, including government-run, non-profit and for-profit skilled nursing and assisted living, testified before the committee, and he outlined the expected impacts on long-term care providers. He explained that some existing providers will close because of the increased malpractice insurance burden, and that this will likely fall most heavily on under-resourced rural communities. He further explained that companies considering establishing new facilities or purchasing existing facilities will avoid Philadelphia, which will likely limit options in the city. He expects the venue rule to affect all long-term care communities because the finite resources available will necessarily be used to pay increased malpractice insurance and related litigation costs with limited ways to charge more to recoup the cost, diverting the resources that otherwise could be used for maintenance, expansion to meet increasing need and enhancement of services.

As mentioned, the Pennsylvania legislature is considering a bill that would reverse the 2023 change; however, such legislation, if enacted, will likely be challenged as an incursion into the Supreme Court’s authority to make rules governing the operation of the courts.

Whether the ultimate solution comes through legislative action, renewed review by the Supreme Court, or further judicial interpretation, the available data suggests that the 2023 venue amendment has had, and will continue to have, significant consequences for long-term care providers. A comprehensive empirical review—precisely the review originally contemplated by the court—would provide policymakers with a stronger factual basis for determining whether the rule has achieved an appropriate balance between access to justice and the continued availability of long-term care services throughout the commonwealth.

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Joel I. Fishbein is an attorney at Hall Booth Smith’s Philadelphia office. With more than three decades of litigation and risk management experience, Fishbein represents long-term care providers, assisted living facilities, skilled nursing facilities, hospitals, physicians and businesses in complex disputes. Joel can be reached at jfishbein@hallboothsmith.com.

About Hall Booth Smith

Established in 1989, Hall Booth Smith, P.C. is a full-service law firm headquartered in Atlanta, Georgia. Experienced across a wide range of legal disciplines, HBS attorneys pride themselves on providing knowledgeable, proactive, client-specific counsel to individuals, domestic and international corporations, state and federal agencies, and nonprofit organizations. The firm’s promise: “Serving to Achieve Excellence.” To learn more, please visit: www.hallboothsmith.com or connect with us on LinkedIn.