On August 25, 2022, the Pennsylvania Supreme Court reversed course on 20 years of medical liability jurisprudence and established new civil procedural rules for medical liability filings. For two decades, medical liability lawsuits had to be pursued in the county of the alleged injury. Under the new rules, a medical liability lawsuit may now be brought in any county with a nexus to the alleged injury. The Court’s action created the environment for a return to venue shopping. Effective January 1, 2023, the new rule is having just that result.

In the late 1990s and early 2000s, Pennsylvania experienced a medical liability insurance crisis. A hardening liability insurance market combined with plaintiff venue shopping led to sharply increasing medical liability insurance premiums. Likewise, the state-run fund that provided coverage over the private insurance limits imposed ever increasing surcharges on physicians and hospitals. Physicians, particularly high-risk specialists (OB-Gyns, neurosurgeons, orthopaedic surgeons, and general surgeons), experienced six-digit liability insurance premiums combined with state-run fund surcharges approaching or at $100,000.00. Physicians began to retire early or leave Pennsylvania. High-risk specialists began to curtail patient services. Many OB-Gyn practices closed, and hospital maternity units shuttered. Two orthopaedic practices (Abington and Scranton) began the process to close for lack of liability insurance at any price. It was truly a crisis and one that current policy makers should attempt to avoid.

The Pennsylvania Orthopaedic Society (PAOrtho) was at the forefront of resolving the medical liability crisis then. Through effective advocacy, PAOrtho addressed this vexing issue and proposed the solution that eventually led to medical liability venue being in the county of the alleged injury. With the Supreme Court’s action in August of 2022, the Commonwealth faces the return of another medical liability insurance crisis, like the one resolved more than 20 years ago, with spiraling liability insurance costs, early surgeon retirements, and delayed or denied patient care.

With three years of venue shopping data compiled, the results are as PAOrtho predicted. Since 2023, medical liability filings in Philadelphia County doubled those filed in 2022. Filings in the suburban Philadelphia counties declined by nearly the same percentage. The 2024 Mcare surcharge was set at 26%, a ten year high, and the 2025 surcharge was more than 20% as well. Orthopaedic practices in Lancaster and Berks Counties have reported to PAOrtho that their recent premium increases were more than 30%. The new crisis is beginning. And with the rise of integrated health systems across the Commonwealth, today’s crisis will be worse than 25 years ago.

The Interim Solutions

A complete reversal of the state Supreme Court’s venue shopping rules likely will require a state constitutional amendment. This process would be at least a five-year endeavor, and with today’s divided state government, a nearly impossible task. Interim steps to mitigate the Court’s actions, however, can and must be taken in the current legislative session that ends in November of 2026.

PAOrtho is advancing three initiatives to mitigate the negative impact of the state Supreme Court’s venue shopping rule. The first attacks medical liability lawsuits at their filing through Certificate of Merit reform. The second would establish an interbranch commission to examine the negative impact of the venue shopping rule and to propose reforms. The third would provide direct relief to high risk specialists and other physicians.

Certificate of Merit Reform

Under current civil litigation rules, a medical liability plaintiff’s attorney needs only to state that a physician has reviewed the medical files and determined that the lawsuit has merit. There are no requirements for a medical report specifying findings or a certificate of merit by the reviewing physician. In addition, there are no requirements that the reviewing physician be in active practice or of the same or similar specialty as the defendant physician. Interestingly enough, if a medical liability plaintiff is not represented by an attorney, that plaintiff must produce a medical report specifying findings and a certificate of merit by the reviewing physician.

PAOrtho’s initiative brings reform to this system that will reduce frivolous lawsuits. Our legislation will require that:

1) A certificate of merit be presented at the time of filing a medical liability claim or within 60 days.
2) A certificate of merit be accompanied by a statement from a licensed medical professional in the same or similar subspecialty as the physician against whom the claim is filed.

Certificate of Merit Reform legislation was introduced this session by PAOrtho 2024 Legislator of the Year Senator David Argall (R, Carbon, Luzerne, Schuylkill). PAOrtho thanks Senator Argall for sponsoring SB 340 PN 277. In addition, PAOrtho thanks Representative Bryan Cutler (R, Lancaster) for sponsoring HB 2088 PN 2685. Both bills are in their chamber’s Judiciary Committees.

Intergovernmental Branch Venue Commission

PAOrtho is pursuing legislation to establish an intergovernmental branch venue commission to address the medical liability venue rules and medical liability cases generally. Such a commission directly led to the county of alleged injury venue rule established more than 20 years ago. The commission would be comprised of appointees from the legislature, the court system, and Shapiro Administration.

Mcare Abatement Program Reauthorization

PAOrtho is working with emergency physician and state Representative Arvind Venkat (D, Allegheny) to introduce legislation to reestablish the MCARE Abatement Program essentially with the same parameters as the original program. High risk specialty physicians would receive 100% abatement of their MCARE assessments while other physicians would receive 50% abatement. The program’s estimated cost will be between $130,000,000 and $150,000,000, with non-tobacco nicotine delivery systems as the targeted revenue source.

View the full PAOrtho Legislative Tracker (PAOrtho Members Only)