Trial Court Requests Affirmance of its Order Transferring Venue of a Nursing Home Negligence Case Out of Philadelphia and to Delaware County

In the case of Bennett v. Providence Operator, LLC, No. June Term, 2024, No. 240603252 (C.P. Phila. Co. March 4, 2026 Cohen, J.), the trial court judge issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s finding that venue was improper in this nursing home malpractice case filed in Philadelphia County. The trial court had transferred the case to Delaware County after finding that all relevant conduct occurred at the Defendant’s facility that was located in Delaware County. The court noted that the Defendant only had incidental marketing contacts with Philadelphia County.

As such, the trial court had granted the Defendant’s Preliminary Objections as to improper venue.

The court otherwise emphasized that advertising and solicitation do not constitute conducting business. 

The court additionally noted that any revenue generated from Philadelphia residents at the Defendant’s facility was incidental to the care provided in Delaware County.

The trial court additionally rejected the argument that venue was proper in Philadelphia County given that the pre-admission assessment was conducted while the Plaintiff’s decedent was hospitalized in Philadelphia. The court rejected the argument that this constituted a transaction giving rise to the cause of action. 

Rather, the court found that the claims instead of arose from the care provided at the Defendant’s facility and not from the admission decision itself. In this case, the claims of injury were with respect to a fall down event that the Plaintiff decedent allegedly had at the facility in Delaware County.

As such, the trial court found that all relevant transactions and occurrences took place in Delaware County, where the alleged negligence occurred. 

Accordingly, the trial court urged the Superior Court to affirm the trial court’s finding that venue in Philadelphia County was improper and that the Order transferring the case to Delaware County should be affirmed.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 2, 2026).

Superior Court Rules That Plaintiff's Effort To Revive a Previously Discontinued Med Mal Case Was Time Barred

The following decision is a cautionary tale for those cases where a Plaintiff discontinues a personal injury case, for one reason or another, before the matter is fully litigated and a recovery is secured.

In the case of Dixon v. Heritage Valley Sewickley, No. 307 WDA 2025 (Pa. Super. May 28, 2026 Olson, J., Stabile, J., and King, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court vacated a trial court Order and held that a Plaintiff could not revive a voluntarily discontinued medical malpractice action by way of a Praecipe to Reinstate after the statute of limitations expired. 

 The appellate court ruled that attorney mistake and/or equitable considerations alone did not serve to toll the limitations period. 

According to the Opinion, the Plaintiff filed a medical malpractice action alleging negligent treatment of arm wounds after the Plaintiff suffered an injury. The Plaintiff alleged that he did not learn that the Defendant medical provider had failed to remove a piece of glass from his arm until that piece of glass was later removed during a subsequent emergency medical procedure.

After the Defendant had filed a Notice of Intention to Enter a Judgment of Non Pros, the Plaintiff voluntarily filed a Praecipe to Discontinue the action without prejudice.

Then, more than two (2) years after the Plaintiff alleged that he had discovered that the glass was still in his arm, the Plaintiff filed a Praecipe to Reinstate the Complaint.

The Defendant medical provider pled the statute of limitations defense in an Answer and New Matter. 

The Defendant later moved for judgment on the pleadings which was denied. The trial court reasoned that the Defendant had waived the statute of limitations defense by untimely raising it and, in the alternative, that equitable considerations allowed the claim to proceed because the Plaintiff’s attorney’s discontinuance of the case was inadvertent and was not shown to have been filed for a procedural advantage.

On appeal, the Superior Court noted that it had the ability to address the issues on appeal despite a challenge to the appealability of the same.

On the merits, the Superior Court held that the trial court had erred in treating the statute of limitations defense as waived. 

The appellate court noted that, under the coordinate jurisdiction rule, one judge at the trial court level had accepted the Defendant’s Answer and New Matter as timely and, therefore, the later judge was barred from disregarding that previous Order. The Superior Court also noted that the trial court had relied upon case law that was no longer good law due to recent Supreme Court precedent.

The court otherwise noted that the attempt by the Plaintiff to use a reinstatement praecipe to revive a previously discontinued action was improper under the circumstances of this case.  The Court noted that a reinstatement praecipe could not substitute for filing a Complaint within the statute of limitations period.

The Superior Court noted that, once a Discontinuance had been filed, this action could only proceed again by way of the filing of a new Complaint within the two year statute of limitations period.  Because that did not occur, the appellate court found that the Plaintiff's claims were time barred.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Olson, noting that Judge's opinion that the appeal should have been quashed, can be viewed HERE


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (June 16, 2026).

Medical Malpractice Case Transferred Under Doctrine of Forum Non Conveniens

In the case of Gearhart v. Geisinger Health, No. 2025-CV-44 (C.P. Lacka. Co. June 5, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted the Defendants’ Motion to Transfer Venue of this case from Lackawanna County to Mifflin County under the doctrine of forum non conveniens.  

According to the Opinion in this medical malpractice case, Mifflin County Plaintiffs commenced a suit against a Mifflin County podiatrist and nurse practitioner, a Union County physician assistant, a Mifflin County hospital, and their employer and corporate parent, which were both headquartered in Montour County. 

After reviewing the evidence presented to the court, Judge Nealon noted that a trial of this matter in Lackawanna County, which is more than 130 miles from the sites of the primary treatment locations and associated evidence would be unduly burdensome for the individual Defendants and would impose considerable hardships relating to their professional and family responsibilities.  

The court also held that Mifflin County would provide far easier access to material witnesses possessing pertinent information and other sources of proof regarding the claimed negligence and damages.  

Accordingly, based upon a totality of the circumstances, the court found Lackawanna County was an oppressive forum for the continued litigation of the malpractice action.  Consequently, the court granted the Defendants’ Motion to Transfer the Case to the Court of Common Pleas of Mifflin County under Pa. R.C.P. 1006(d)(1).  

Anyone wishing to review a copy of this decision may click this LINK.

Court Allows Plaintiff's Expert To Testify in Medical Malpractice Case

In the case of Pratt v. Shahid, No. CV-23-00720 (C.P. Lyc. Co. April 14, 2026 Carlucci, J.), the court denied the Defendants’ Motion In Limine seeking to preclude the Plaintiff from introducing the testimony of a doctor in a medical malpractice case.

In this case, the court denied the Defendants’ request for an exclusion of the Plaintiff’s medical expert’s testimony given that the Plaintiff’s expert’s opinion was found to be supported by medical literature.

The court also noted that the Defendants’ challenge went to the Plaintiff’s expert’s conclusions rather than the methodology utilized by the expert. 

The court found that the Plaintiff’s expert’s methodology was not novel, as it was similar to the methodology used by the Defendants’ expert. The court further noted that, even if the Plaintiff’s methodology was considered to be novel, it was still generally accepted in the scientific community as supported by articles from scientific journals submitted by the Plaintiff.

In the end, the court ruled that, while the Plaintiff’s expert’s conclusions differed from those advanced by the Defendants’ expert, that difference is not a proper basis for excluding the testimony of the Plaintiff’s expert.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (May 28, 2026). 

Appellate Court Finds that Plaintiff's Med Mal Claims Were Sufficiently Stated in Complaint

In its non-precedential decision in the case of Dasilva v. Abington Memorial Hospital, No. 1707 EDA 2025 (Pa. Super. June 2, 2026 Kunselman, J., Nichols, J., and Sullivan, J.) (Op. by Kunselman, J.), the court reversed a trial court’s decision in a medical malpractice case sustaining the Preliminary Objections of the Defendant hospital dismissing the Plaintiff’s Second Amended Complaint with prejudice.

The trial court had dismissed the Plaintiff’s Complaint due to the alleged insufficiency of the factual allegations in the Second Amended Complaint. Primarily, the Defendants asserted, in part, that the Plaintiff’s allegations of negligence and agency were vague and/or insufficiently specific.

On appeal, the Pennsylvania Superior Court reinstated the medical malpractice action after finding that the Plaintiffs had plausibly alleged that the medical staff failed to properly monitor a patient who was experiencing a psychiatric episode by allowing the patient to leave the emergency room at which point he was then struck by a vehicle.

The appellate court concluded that the Plaintiffs had met the state’s fact-pleading standard by outlining key facts, including the Plaintiff’s mental state, the awareness of the hospital staff of the Plaintiff’s condition, and the alleged failure of the hospital staff to monitor or prevent the patient’s departure from the hospital.

The appellate court otherwise held that a Plaintiff need not identify any specific employees in the medical malpractice case in order to pursue vicarious liability claims against a hospital. The court noted that references contained in the Complaint to the emergency room staff were sufficiently specific to enable the Defendants to respond to the Complaint.

Anyone wishing to review a copy of this non-precedential decision of the Pennsylvania Superior Court in the Dasilva may click this LINK.

Source: Article – “Abington Hospital Must Face Med Mal Claims Over Patient’s ER Escape, Pa. Appellate Court Says,” By Riley Brennan of The Legal Intelligencer (June 4, 2026).

Source of image:  Photo by National Cancer Institute on www.unsplash.com.

Trial Court Rules that Plaintiff's Medical Malpractice Experts are Competent to Testify on Causation

In the case of Kenny v. Lackawanna Health and Rehab Center, No. 2021-CV-1360 (C.P. Lacka. Co. May 28, 2026 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Motions in Limine filed by a Defendant in a medical malpractice case.

The Defendants filed a Motion In Limine seeking to bar the decedent’s treating orthopedic surgeon and the Plaintiff’s skilled nursing care and nursing home administration expert from expressing opinions regarding the cause of the Defendant’s hip fracture.

The Defendant more specifically asserted that the decedent’s treating orthopedic surgeon failed to state his medical causation opinion with the requisite degree of medical certainty in his pre-trial reports. 

After reviewing the record before him, the court ruled that a review of all of the reports issued by the orthopedic surgeon confirmed that the doctor had articulated his medical causation opinion with the requisite degree of medical certainty. The court noted that any objection regarding the particular terminology used by the expert in his reports went to the weight of the evidence rather than the admissibility of the expert testimony. As such, this Motion In Limine was denied.

With regards to the Plaintiff’s nursing expert and the defense argument that this expert should be precluded from testifying regarding causation on the grounds that the expert lacked the required education, training or experience in orthopedics, the court noted that the most recent law in Pennsylvania is that a registered nurse is competent to testify concerning the relevant nursing standard of care as well as on the issue of medical causation. Accordingly, the court overruled the Defendant’s argument that the nursing expert is incompetent to testify as to causation.

Anyone wishing to review a copy of this decision may click this LINK.

Superior Court Clarifies Application of Doctrine of Forum Non Conveniens

In the case of Duxbury v. Reconstructive Orthopedic Assoc. II, P.C., No. 2876 EDA 2024 (Pa. Super. March 25, 2026 Bowes, J., Murray, J., and Beck, J.) (Op. by Beck, J.), the Pennsylvania Superior Court addressed an appeal from an Order entered by the Philadelphia County Court of Common Pleas in a medical malpractice case granting a Motion to Dismiss under the doctrine of forum non conveniens filed by the Defendant. The trial court had directed that the action be refiled in New Jersey.

The Plaintiffs argued that the trial court erred in its application of the existing precedent regarding the doctrine of forum non conveniens. The Plaintiffs more specifically argued that a review of the facts under a correct application of the doctrine did not support the transfer of the action to New Jersey.

On appeal, the Pennsylvania Superior Court reversed the trial court’s Order and remanded the case for further proceedings in the Philadelphia County Court of Common Pleas. Here, the court noted that the trial court was obligated to further weigh the circumstances linking the case to Pennsylvania to determine whether Pennsylvania was an inconvenient forum, and not simply review whether New Jersey was a more convenient forum for the Defendants.

In other words, the court noted that Pennsylvania law requires that, when courts review arguments under the doctrine of forum non conveniens, at least in a case involving two (2) separate states as here, the court is required to consider the relative convenience of allowing the claim to proceed in either of the states at issue.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (April 14, 2026).

Court Addresses Various Pleadings Issues in a Medical Malpractice Case, Including Allegations of Recklessness

In the case of Limon v. Kontizer, No. 2025-CV-8657 (C.P. Lacka. Co. March 30, 2026 Powell, J.), the court addressed various Preliminary Objections filed by Defendants in a medical malpractice case.

According to the Opinion, this wrongful death medical malpractice case was filed relative to the Plaintiff’s decedent’s treatment in the form of an upper GI endoscopy. According to the Complaint, the Plaintiff alleged that the various medical Defendants failed to properly diagnose, treat, and prevent aspiration pneumonia, sepsis, and multi-organ dysfunction, all of which allegedly led to the Plaintiff’s decedent’s death.

In their Preliminary Objections, the Defendants sought the dismissal of claims for reckless conduct and punitive damages, as well as claims grounded in vicarious liability and negligence.

The court overruled all of the Preliminary Objections filed.

Relative to the claims of recklessness and for punitive damages, the court held that, under Pa. R.C.P. 1019(b), conditions of the mind, such as recklessness, may be alleged in a general fashion as long as negligence is pled.

The court additionally noted that the Complaint sufficiently asserted that the Defendants knowingly disregarded serious, life-threatening risk to the decedent. Accepting these allegations are true, the court concluded that the claims for punitive damages were legally sufficient.

With regards to the issues of vicarious liability, the court rejected the Defendants’ arguments that the Complaint was deficient for failing to identify specific agents or employees. The court noted that Pennsylvania law does not require a Plaintiff in a medical malpractice case to identify every individual agent at the pleadings stage. Rather, the court noted that it is sufficient to allege that the individuals acted within the scope of their employment or agency since the identity of every healthcare professional who was involved in the decedent’s treatment during the approximately one month period at issue could be readily ascertained by the Defendants from their own records.

The court further found that the Plaintiff sufficiently alleged that the Defendants had knowledge of, and allowed the alleged reckless conduct, thereby satisfying the heightened requirements for allegations of vicarious liability for punitive damages under the MCARE Act.

The court otherwise rejected the Defendant’s objections that the Plaintiff’s negligence claims were overly broad and vague.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Lackawanna Jurist (April 10, 2026).

Plaintiff Found To Have Made Good Faith Efforts To Complete Service of Process in Medical Malpractice Case

In the case of Francis v. Xu, No. 2025-CV-3745 (C.P. Lacka. Co. April 16, 2026 Nealon, J.), the court addressed Preliminary Objections filed by a Defendant-physician in a medical malpractice matter seeking to dismiss the claims asserted against the physician on the grounds that the Plaintiffs failed to effectuate service of original process in a timely fashion or with good faith upon the Defendant-physician prior to the expiration of the two (2) year statute of limitations. 

Judge Terrence R. Nealon, writing for the Lackawanna County Court of Common Pleas, agreed that, in order to toll the statute of limitations, a plaintiff must indeed make a good faith effort to timely serve initial process on a Defendant. The court also agreed that, if a plaintiff fails to do so, the lawsuit is subject to dismissal where either (a) the plaintiff has demonstrated an intent to stall the judicial machinery, or (b) the plaintiff’s failure to comply with the Rules regarding service of original process has prejudiced the defendant.

After reviewing the record before him, Judge Nealon found that the Plaintiff in this matter made repeated attempts to serve the Defendant at issue at multiple locations while expeditiously and repeatedly reinstating the Complaint along the way.

Accordingly, the court found that service of process upon the Defendant physician resulted from the Plaintiff’s repeated efforts to diligently and timely serve the doctor. The court also found that the Defendant doctor did not identify any prejudice that she allegedly suffered due to any delay in serving initial process.

As such, the doctor’s Preliminary Objections asserting untimely service of original process were overruled.

Anyone wishing to review a copy of this decision may click this LINK.

Trial Court Finds That Defendant Waived Arbitration Clause in Nursing Home Case by Litigating Case in Court

 

In the case of the Estate of Smalling v. 2990 Holm Operating, LLC, Jan. Term 2024, No. 240102492 (C.P. Phila. Co. Dec. 9, 2025 Cohen, J.), the trial court issued a Rule 1925 Opinion requesting the appellate court to uphold the trial court’s decision to deny a Defendant’s Motion to Compel an Arbitration in a nursing home case.

In this matter, the Plaintiffs allege that their family member decedent had passed away due to alleged negligence treatment received at the Defendant’s facility.

After the Plaintiffs had filed suit, the case proceeded with pleadings and discovery. Fourteen months after the lawsuit was filed, the Defendants filed a Petition to Compel Arbitration.

The court denied the Petition under the primary rationale that the Defendants had waived its right to compel arbitration by availing itself of the judicial process. The court noted that, here, there was a significant delay of over one year before the Defendant sought to compel arbitration. Given the delay and the active litigation in the lawsuit, including the filing of earlier Preliminary Objections by the Defendant, the trial court found a waiver of the right of the Defendant to request arbitration.

In so ruling, the trial court did not reach the Plaintiffs’ other arguments that the arbitration clause in the nursing home agreement was unenforceable under the doctrines of procedural and substantive unconscionability, and/or the argument that the person who had signed the arbitration agreement did not have the power to bind the decedent to the arbitration agreement.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Matthius Zomer on www.pexels.com.

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 12, 2026).

Trial Court Addresses Duty of Counsel To Act Reasonably in Moving Forward With Discovery and Depositions

In the case of Knick v. Lehigh Valley Hospital, No. 2024-CV-3016 (C.P. Lacka. Co. Jan,. 30, 2026, Nealon, J.), the court addressed a second Motion filed by a Plaintiff to extend the deadlines for the completion of discovery and expert discovery, and to postpone the scheduled trial date, in a medical malpractice case.

In this Opinion, the court noted earlier admonitions from the court directing the parties to promptly initiate and complete their pre-trial preparations.

In their filings on this Motion, each party claimed that the opposing party was the reason for the delay. 

The court noted, however, that defense counsel produced emails and other communications between counsel reflecting that the Plaintiff made no attempt to schedule a single deposition for the first fourteen (14) months that the case was pending and that defense counsel had made many attempts to schedule depositions only to have Plaintiff’s counsel claim that they were unavailable and, on another occasion, to cancel the depositions that had been scheduled for mutually convenient dates.

The court noted that litigants and their counsel have an obligation to act reasonably in scheduling and conducting discovery depositions, and when attorneys are unavailable to complete pending legal matters in a timely fashion, the Rules of Professional Conduct require them to either (a) decline additional work, (b) seek assistance or (c) withdraw and allow another attorney to complete the work.

Ultimately, the court granted the Plaintiff’s Motion to Extend partially by allowing for deadlines to be modified in a limited fashion. However, the request to postpone the July of 2026 trial date was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Superior Court Addresses Discoverability of Internal Post-Incident Investigative Reports in Medical Malpractice Case

In the case of Griffin v. The Bryn Mawr Hospital, No. 3361 EDA 2024, 2026 Pa. Super. 53 (Pa. Super. March 19, 2026 Bowes, J., Murray, J., and Beck, J.) (Op. by Beck, J.) (Concurring and Dissenting Op. by Murray, J.), the Pennsylvania Superior Court addressed whether four internal documents created by the medical providers after the hospital allegedly mishandled fetal remains were protected from disclosure under Pennsylvania’s Medical Care Availability and Reduction of Error Act (MCARE) and the Federal Patient Safety and Quality Improvement Act.

According to the Opinion, the case arose out of a lawsuit filed by parents who alleged that the hospital mistakenly cremated the placenta instead of their fetus and later admitted to a “mix up.”

During discovery, the hospital withheld four internal reports tied to its investigation. The hospital asserted that these documents were privileged patient-safety materials generated as part of its compliance and internal review processes.

In its Opinion, the court addressed how far hospitals can shield internal investigation documents from discovery under the above-referenced state and federal patient-safety laws.

The Superior Court majority ruled that the documents were not protected under MCARE. The court found that the MCARE statute applied only to events involving direct patient care and not post-treatment conduct. The court here found that the allegations in this case did not implicate any medical treatment issues.

With regards to the application of the federal law, the federal law under the PSQIA, this court entered a split decision. The court held that three of the documents at issue were shielded under the broader scope of the PSQIA law because they were created as part of the hospital’s internal patient safety evaluation system.

Anyone wishing to review a copy of the Majority's decision may click this LINK.

Judge Murray's Concurring and Dissenting Opinion can be viewed HERE.

Source: Article – “Pa. Superior Court Splits On MCARE Patient-Safety Privilege Case,” By Tristin Hoffman of The Legal Intelligencer (March 25, 2026).

Source of image:  Photo by RDNE Stock Project on www.pexels.com.

Defendant's Forum Non Conveniens Argument Rejected in Medical Malpractice Case Filed in Philadelphia

In the case of Miller v. Jackson, May Term, 2024, No., 240503457 (C.P. Phila. Co. Dec. 17, 2025 Cohen, J.), the court denied a Defendant’s Motion to Dismiss a case based upon the forum non conveniens doctrine in a medical malpractice case.

According to the Opinion, this case arose out of medical treatment that took place in the state of Delaware.

After the lawsuit was filed in Philadelphia County, the Defendants filed a Motion to Dismiss based upon the doctrine of forum non conveniens, arguing that the case should be heard in Delaware where the events occurred.

After the court allowed discovery on the motion, the case came up for a decision.

The Plaintiffs asserted that the individual Defendants resided in Pennsylvania and a foundation related to the matter conducted significant operations in patient interactions in Pennsylvania, which allegedly established a public interest in the case being decided in Pennsylvania.

The Philadelphia County Court of Common Pleas denied the Defendants’ Motion to Dismiss after finding that the Defendants had failed to provide “weighty reasons” to justify the dismissal and transfer of the case.

The court noted, in part, that while the events regarding the medical treatment occurred in the State of Delaware, Pennsylvania still had a substantial connection to the case due to the residency of the individual Defendants in Pennsylvania and the operations of the foundation taking place in Pennsylvania.

The court additionally noted that the Defendants’ arguments focused on county-level convenience rather than a state-level analysis, which is required for forum non conveniens consideration.

The court otherwise determined that the increased travel time for witnesses to come to Philadelphia was not significant enough to warrant dismissal, especially since many of the witnesses were based in Philadelphia.

The trial court otherwise denied the Defendants’ request for a certification of the issues for an interlocutory appeal found that the issues at hand involved a discretionary matter of convenience and not any controlling question of law. The court additionally found that an immediate appeal would not materially advance the termination of the case but would instead delay the proceedings.

Overall, the court found no compelling reasons supporting the disturbance of the Plaintiffs’ choice of forum. As such, the case was allowed to proceed in Pennsylvania.

In this Rule 1925 Opinion, the court requested the Superior Court to affirm its decisions as noted above.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 26, 2026).

Superior Court Affirms Trial Court's Refusal to Give Increased Risk of Harm Jury Instruction in Medical Malpractice Case

In its non-precedential decision in the case of Matthews v. Hosp. of the Univ. of Penn., No. 1163 EDA 2024 (Pa. Super. Feb. 26, 2026 Lazarus, P.J., Kunselman, J., and King, J.) (Op. by King, J.), the Pennsylvania Superior Court denied a medical malpractice Plaintiff’s attempt to overcome a defense verdict in a Philadelphia County case.

In part, the Plaintiff argued that the trial court had erred in denying the Plaintiff’s request for an increased risk of harm jury charge.

Upon review of the record, the court found that the jury instruction was not warranted because the Plaintiff’s witnesses, including expert witnesses, failed to testify as to how the Defendant’s alleged delay in performing a cesarean section caused or increased the risk of harm to the Plaintiff’s child. 

The court noted that the record revealed that the Plaintiff’s expert did not state, within a reasonable degree of medical certainty, that the Defendants’ alleged failure to perform a C-Section earlier could either cause or increase the risk the type of brain injury suffered by the child.  As such, the Superior Court ruled that the Plaintiff was not entitled to the increased risk of harm jury instruction under the evidence that was presented at trial.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


Source: Article – “Insufficient Expert Testimony Sinks Push To Overturn Med. Mal Defense Win, Pa. Appeals Court Rules.” By Riley Brennan The Legal Intelligencer (Feb. 27, 2026).

Superior Court Addresses How To Address Settled Defendants at Trial

In its non-precedential decision in the case of Swank v. Rabkin Dermatopathology Laboratory, P.C., No. 342 WDA 2025 (Pa. Super. Dec. 15, 2025 Panella, P.J.E., McLaughlin, J., and Bender, P.J.E.) (Op. by Panella, P.J.E.), the court reversed the entry of judgment in favor of certain Defendants in a medical malpractice case and remanded the case back down for further proceedings.

According to the Opinion, this matter involved a delayed cancer diagnosis case.

Prior to trial, the Plaintiff reached a settlement with all parties except one and proceeded to trial against that last remaining party.

The Plaintiff, along with the settling Defendants, requested the trial court to dismiss the settling Defendants prior to trial because the remaining Defendant did not have any expert to provide an expert opinion against the settling Defendants. Moreover, the remaining Defendant did not file any crossclaim against the settled Defendants. Also, the Plaintiff did not have any expert testimony that was critical of the settling Defendants that would be presented at trial.  At the trial level, it was the Plaintiff’s position that it was legally impossible for there to be a prima facie case established against the settling Defendants and that, as such, those Defendants should be dismissed. 

The trial court disagreed and kept those settling Defendants in the case, relying upon the Fair Share Act in doing so.

As the case proceeded, the trial court did end up dismissing one of the settling Defendants after the Plaintiff’s case-in-chief was completed. The remaining other settled Defendants were dismissed just before closing arguments.

At trial, the Plaintiffs claimed that there was prejudice to the Plaintiff because the jury was left wondering why these Defendants were dismissed after they participated in the trial.

The jury ended up entering a defense verdict.  

The Plaintiff appealed and, in this Superior Court decision, the appellate court reversed the trial court’s decision and remanded the matter for further proceedings after finding that the trial court’s reliance upon Fair Share Act was misplaced.

Judge Panella, who wrote this Opinion, as well as the Fair Share Act case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), noted that the Superior Court has concluded that, for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at 13 citing Spencer, 249 A.3d at 559.

The court noted that, in this case, the Plaintiff’s negligence was not at issue in the case. As such, the court ruled that the trial court erred in relying upon the Fair Share Act to keep Defendants in the case.

The court otherwise noted that there is no absolute right to have settled Co-Defendants on a Verdict Sheet. Rather, the appellate court noted that a trial court must determine whether any evidence of the settled Co-Defendant’s liability exists in the case presented before deciding whether that party should be put on the Verdict Slip.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney Carmen J. Nocera of the Pittsburgh law firm of Harry S. Cohen & Associates, P.C. for bringing this case to my attention.

Source of image: Photo by Tima Miroshnichenko on www.pexels.com.

U.S. Supreme Court Decision Ruling that Delaware Rule Requiring Certificate of Merit for Professional Liability Claims Has Implications In Pennsylvania Matters

In the United State Supreme Court case of Berk v. Choy, No. 24-440 (U.S. Jan. 20, 2026) (Op. by Barrett, J.), the United States Supreme Court held that a Delaware law requiring a Plaintiff suing for medical malpractice to provide an affidavit from a medical professional attesting to the merit of the claims presented in the law suit conflicts with valid Federal Rule of Civil Procedure and, as such, does not apply in federal court proceedings.

According to commentators, this United States Supreme Court decision can be read as establishing that Pennsylvania's requirements for a Certificate of Merit in professional negligence in state court matters would not apply in the federal courts of Pennsylvania.

As such, these commentators have suggested that, in those cases where a plaintiff can establish diversity jurisdiction in order to get into federal court, those plaintiffs may opt to proceed in federal court where they need not secure and produce a Certificate or Merit before proceeding with a professional negligence claim, such as a medical malpractice claim or a legal malpractice claim.   

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton, PA for bringing this decision to my attention.

Source of image:  Photo by Fine Photographics on www.pexels.com.

Superior Court Addresses Statutory Privilege Related to Patient Safety Reports In Med Mal Cases

In the case of Boyle v. Mainline Health, Inc., No. 2454 EDA 2023 (Pa. Super. Sept. 10, 2025 Lazarus, P.J., King, J., and Lane, J.) (Op. by King, J.), the Pennsylvania Superior Court ruled that a failure to provide a Patient Safety Report (PSRS) to the hospital’s Patient Safety Committee or governing board meant that the hospital could not rely upon the statutory privilege under the Medical Care Availability and Reduction of Error Act (MCARE). 

The court otherwise ruled that the creation of other records as part of a patient safety evaluation system did trigger the privilege under the Patient Safety and Healthcare Quality Improvement Act (PSQIA). As such, the discovery Order of the trial court was affirmed in part and reversed in part.

This matter arose out of a medical malpractice action in which the Plaintiff’s alleged that there child suffered birth injuries. During the discovery, the Plaintiffs sought documents related to the investigation of the baby’s delivery. 

In response, the Defendants produced a privilege log identifying four (4) responsive documents, the Patient Safety Occurrence Worksheet, the Situation Background Assessment/Recommendations, the Patient Safety Reporting System, and the Potential Compensible Event Report. The Defendants asserted that these documents were privileged under the MCARE Act and the PSQIA. 

The Plaintiff responded with a Motion to Compel.

After the trial court granted the Plaintiff’s Motion to Compel, the case went up on appeal. As noted, the Superior Court affirmed in part and reversed in part.  The Superior Court found that the Defendants did not meet their burden of establishing the PSRS report arose out of a matter reviewed by a patient safety committed or governing board pursuant to their Section 311(b) MCARE Act responsibilities.  As such, the Defendants were required to disclose the PSRS report.

The appellate court also reversed the portion of the trial court's Order finding that the Defendants failed to establish that the PSQIA privilege applied to certain other documents.

Anyone wishing to review a copy of this decision may click this LINK.

The Concurring/Dissenting Opinion by Judge Lane can be viewed HERE.


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Sept. 30, 2025).

Source of image:  Photo by Thirdman on www.pexels.com

Judge Powell of Lackawanna County Addresses Plethora of Issues Raised in Medical Malpractice Matter

In the case of Doyle v. Keyed, No. 2024-CV-9036 (C.P. Lacka. Co. Oct. 16, 2025 Powell, J.), the court issued a decision denying various Preliminary Objections filed in a medical malpractice action arising out of the death of an infant during a complicated delivery.

Of note, Judge Powell of the Lackawanna County Court of Common Pleas overruled nearly all of the challenges submitted by the Defendants, including a request by Lehigh Valley Hospital-Pocono Defendants’ request to severe their case from the claims against the St. Luke’s Hospital Defendants.

The court additionally rejected one doctor’s claim that he could not be held vicariously liable for actions by the hospital staff that worked under him. The court noted that vicarious liability may attach in a medical malpractice case under the “captain-of-the-ship” doctrine or where the physician exercises actual control over the staff members.

The court noted that, because the Complaint in this matter alleged that the doctor at issue had directed and supervised others during the delivery, those allegations stated a viable theory of vicarious liability.

The court additionally upheld the Plaintiffs’ claims of direct and corporate negligence against various Defendants.

Judge Mark Powell
Lackawanna County

Judge Powell also overruled objections to the claim for punitive damages. The court found that the facts alleged could, if proven, constitute reckless disregard warranting punitive damages.

The court also noted that, given that mental state conditions may be alleged generally under Pa. R.C.P. 1019(b), such claims could survive the pleading stage.

The court also disagreed with the defense argument that childbirth procedures are not surgical acts requiring informed consent. The court noted that the allegations that the doctor failed to discuss surgical alternatives despite risk factors present stated a plausible informed-consent claim.

The court also allowed the Plaintiffs’ claims for negligent infliction of emotional distress to proceed. The court found that the Plaintiff-mother, having suffered a physical impact and having observed her child’s death, and the father, who witnessed the traumatic delivery and aftermath, both fit within the recognized categories of Plaintiffs permitted to pursue negligent infliction of emotional distress claims. In this regard, Judge Powell noted that observation of the results of negligent medical acts can satisfy the contemporaneous observation requirement in a medical malpractice context.

Anyone wishing to review a copy of this decision may click this LINK.

Source:  Lackawanna Jurist (Oct. 31, 2025).

Source of image: Photo by Samuel Ramos on www.unsplash.com.

Superior Court Grants New Trial in a Medical Malpractice Case

In the case of Lewis v. Reading Hospital, No. 986 MDA 2024 (Pa. Super. Sept. 2, 2025 Bowes, J., Olson, J., and Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court issued an Opinion which it reviewed the correct approach to increased risk claims in medical malpractice cases.

In this medical malpractice case, the court vacated the verdict in favor of the Plaintiff and remanded the case for a new trial.

In part, the Superior Court ruled in favor of the defense after finding that the trial court had failed to grant a mistrial after the Plaintiff’s attorney told the jury that the defense was unable to retain an expert on causation, which statement was not consistent in the evidence of the record.  In this case the Plaintiff had been successful in precluding one of the defense experts from testifying at trial.  The appellate court held that a party who succeeds in excluding evidence on legal grounds may not mislead a jury by telling the jury that such evidence never existed in the first place.

The Superior Court also agreed that the trial court erred in giving an instruction and a verdict form to the jury which equated the negligence element of factual cause with an “increased risk of harm” argument.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Michael D. Pipa of the Harrisburg, PA law firm of Saxton & Stump for bringing this case to my attention.

Trial Court Refuses to Grant Plaintiff an Extension to Secure a Proper Certificate of Merit

In the case of Winters v. Patient First Pennsylvania Medical Group, No. 2024-03638-PL (C.P. Chester Co. Dec. 17, 2024 Binder, J.), the court denied a Plaintiff’s Motion for Additional Time to Provide a Certificate of Merit in support of a medical malpractice claim.

In this matter, the Plaintiff sued the Defendant medical providers relative to alleged negligence in prescribing certain medications to the Plaintiff’s minor daughter.

The court denied the Plaintiff’s Motion after finding that the Plaintiff failed to demonstrate good cause for an extension of time.

The Court noted that the Plaintiff’s counsel merely cited conflicting litigation and work demands.  Plaintiff's counsel also offered speculative reliance on his hope that the Plaintiff’s former physician would provide the necessary written statement. 

The court otherwise granted the Defendant’s Motion to Strike a Purported Certificate of Merit that the Plaintiff had previously produced. The court found that the previously provided written statement pursuant to Pa. R.C.P. 1042.3(e) was insufficient given that it was written by a pharmacist.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Aug. 14, 2025).