Somerlot v. Jung, 2025 WL 2157391 (Pa. Super. Ct. July 30, 2025)
When parties enter arms-length negotiations to form a contract, drafts are exchanged to settle on a final agreement. But when a patient signs a consent form for a surgery or medical procedure, does the patient have the right (or foresight) to negotiate provisions of the consent form? An appellate court in Pennsylvania recently upheld a consent for surgery form that restricted the county in which the patient may bring any future lawsuit. The decision likely portends an expanded use of venue-selection clauses in consent forms in Pennsylvania considering recent changes to venue for medical malpractice claims in the Commonwealth.
Venue in Pennsylvania Medical Malpractice Actions
“Venue,” as used in the law, refers to the proper place for a lawsuit to proceed. Often, the proper venue for the case to proceed is the place where the events giving rise to the lawsuit occurred. See Black’s Law Dictionary, “Venue” (12th ed. 2024).
Since the early 2000s, a lawsuit for medical malpractice in Pennsylvania had to be filed in the county in which the action arose. In other words, where the allegedly negligent treatment or procedure occurred. In 2022, the Pennsylvania Supreme Court invalidated this rule. No.-Cent. Pa. Trial Lawyers Ass’n v. Weaver, 827 A.2d 550 (Pa. Commw. Ct. 2003). Now, for venue to be proper, all that must be shown is that the defendant “regularly conducts business” in the county. See Hangey v. Husqvarna Prof’l Prods., Inc, 304 A.3d 1120 (Pa. 2023).
A flood of medical malpractice claims arrived in Philadelphia County because of this rule change, though overall personal injury filings are down. See A. Gutman, The Philadelphia Inquirer, “Why are there so many billboards for personal-injury lawyers in the Philly area,” (July 16, 2025) (noting 15,698 filed personal injury cases in 2017 and 13,028 in 2024; 50% increase in medical malpractice lawsuits over same period). The reason for filing in Philadelphia County over the suburban counties of Philadelphia? Philadelphia County has been home to some of the largest verdicts in the country for personal injury and products liability over the past several years. Juries in Philadelphia County are more likely to award “nuclear” verdicts: verdicts more than $10 million.
Consent Forms for Medical Treatment
Since the 1960s, Pennsylvania law has allowed the use of venue provisions between private parties so long as the agreement is “not unreasonable at the time of litigation.” To be unreasonable, the venue restriction must “seriously impair plaintiff’s ability to pursue his cause of action. Mere inconvenience or additional expense is not the test. . . .” Cent. Contracting Co. v. C.E. Youngdahl & Co., 209 A.2d 810, 816 (Pa. 1965).
Recently in the Somerlot case, the Pennsylvania Superior Court (the intermediate appellate court of the Commonwealth) saw nothing unreasonable in a surgeon and patient agreeing—through a consent for surgery form—to file any lawsuit related to the surgery in Bucks County to the exclusion of other counties. The consent form, in relevant part, appears below. In the original form, the language was in 10-point font and single-spaced:
6. I . . . hereby authorize all doctors, pharmacists, hospitals, [Pain Management,] or other institutions rendering care and treatment to furnish the responsible parties and/or insurance companies with full information regarding treatment rendered, including copies of my records. []
7. NOTICE: Any legal claims or civil actions, including, but not limited to, a claim for medical malpractice in any way related to this admission/procedure, and medical services provided by [Pain Management] or its employees, shall be brought solely in the Courts of Bucks County, in the Commonwealth of Pennsylvania.
If patient . . . does not agree to this paragraph number 6, then he/she will initial here.
__________ Initials
The patient in Somerlot signed and dated the form without initialing the section that rejected the venue-selection clause.
The Somerlot Court upheld the venue-selection clause after the plaintiff filed the lawsuit in Philadelphia County. The Court viewed the issue as no different than freely contracting parties agreeing ahead of time to a venue in which they litigate their disputes. “It is hornbook law that, to form a contract, there must be an offer, acceptance, and consideration. . . . When Dr. Jung and Pain Management presented Ms. Somerlot with the form containing the venue-selection clause, they made her an offer. . . . If Ms. Somerlot did not wish to accept the offer with the venue-selection clause, the law of contracts allowed her to reject that clause.”
The Court upheld the venue-selection clause as reasonable even though the consent form contained a typo—referring to “paragraph number 6” when the venue restriction was found in paragraph number 7. And it rejected the contention that the new rule of venue for medical malpractice actions rendered the venue-selection clause unreasonable in application according to longstanding Pennsylvania law.
Future Developments in Pennsylvania Medical Malpractice Actions
If Somerlot is upheld on appeal, the significance of the decision likely presages a greater use of venue-selection clauses in consent for treatment forms. The patient, therefore, must read and scrutinize the consent form for any such venue-selection clause. As a private party, the patient is entitled to strike the provision, but the real-world implications of striking such a provision may mean the physician declines to proceed with the procedure. Plus, it is very likely that future disputes about the propriety of including such clauses in a consent form will appear in the courts.
Dalton & Associates
Dalton & Associates litigates medical malpractice claims involving serious bodily injury or death in Delaware, Pennsylvania, and New Jersey. Medical malpractice claims are expensive and difficult matters to prosecute. Dalton and Associates has the experience and expertise to competently and successfully evaluate and prosecute such claims.
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The above article is meant for general information purposes only. Any statements contained herein are meant only for such purposes and not as legal advice.
If you have questions about this article or Medical Malpractice, please contact Michael Dalton at [email protected].