Defense Digest

A Further Look at Venue in Medical Malpractice Cases
By Wendy Walker, Esq.*

As many are aware, Pennsylvania’s venue rules for medical professional liability actions changed with the amendment to Pa.R.C.P. 1006, in conjunction with the application of the MCare Act. While seemingly straightforward, the courts continue to explore application of the new venue rules. In the plurality decision of Olshan v. Tenet Health System, et al, 2004 Pa. Super. 128, the majority of the Pennsylvania Superior Court considered the application of the new venue rules in a situation where all of the medical care provided to the plaintiff occurred in Montgomery County, but where the plaintiff's complaint alleged corporate negligence against the defendant health care system, which is headquartered in Philadelphia County.

In this case, the appellant’s mammogram was taken at an imaging center located in Montgomery County, Pennsylvania. The appellant later learned that the radiologist at the Center had missed a cancerous mass, and a medical malpractice action ensued for the delay in diagnosing the now metastasized cancer and her decreased chance of survival. The appellant sued not only the radiologist and the Montgomery County-based imaging center, but also the largely Philadelphia-based Tenet defendants, which allegedly owned and/or operated the imaging center. A theory of corporate negligence was asserted against the Tenet defendants for an alleged systematic negligence in failing to retain competent physicians; failing to formulate, adopt, and enforce adequate rules and polices to ensure quality care; and failing to oversee the activities of its agents, servants, employees, and/or ostensible agents.

The defendants filed preliminary objections consistent with Pa.R.C.P 1006 a (1) challenging the appropriateness of Philadelphia venue. The majority considered that under Rule 1006, venue for a medical professional liability action is proper only in the county where a “cause of action arose.” It then looked to the definitional section, which indicates that a “medical professional liability claim” concerns injury from the “furnishing” of health care services. 42 Pa. C.S.A. 5101.1(c).

The majority then looked at the MCare Act, 40 P.S. §1303.302, to conclude that its legislative intent contemplates the actual delivery of medical treatment to a patient, as opposed to merely administrative acts. Thus, it ruled that venue is proper in a county where the action affected the patient, which would be where the "care is furnished," as opposed to a county where corporate action took place. To illustrate the point, an example is given of where a Philadelphia hospital’s pharmacy mislabels a drug, which is then received by a patient in Montgomery County. The court notes that, while the hospital in Philadelphia would be a liable party, it is Montgomery County where venue would be appropriate since that is the county where the action affected the patient. Likewise, in the instant case, the court considers the relevant care to be the location where the film was read, not the location of any hiring, supervising, or providing of rules and regulations for staff. In so finding, the majority of the Pennsylvania Superior Court affirmed the trial court’s granting of the defendants’ preliminary objections for the transfer of venue to Montgomery County.

The majority further reviewed the legislative intent to support its analysis. Specific note is made that the General Assembly emphasizes the importance of changing the previous venue requirements, such as in 40 P.S. 1303.514(a), where the General Assembly cautions that the recent revamping of corporate healthcare structures has “unduly expanded the reach and scope of [the then] existing venue rules.” The majority reflected that such expansion had allowed most any health care provider affiliated with a larger, corporate entity with ties to cities, such as Philadelphia, to obtain venue there. The new venue rules were clearly designed to avoid such a scenario. In rejecting the appellant’s position, the majority indicated that simply alleging corporate negligence “unrelated to the actual provision of health care services” is inconsistent with the intent of the new venue rules.

Importantly, the majority noted that under the MCare Act, a certificate of merit is not required against a hospital or other corporate entity, which further suggests that the site of treatment is what matters.

The dissent written by Judge Olszewski reasoned that, in considering 42 Pa.C.S.A. §5101.1(c), a corporation can be a "health care provider" and, as such, it is illogical that it cannot be deemed to perform health care services.  The dissent argues that administrative acts, such as hiring physicians, drafting rules and regulations, and supervising staff, necessarily must be considered “health care services” not just actual medical care given.  The dissent is also troubled that there was no evidence of record that the alleged deviation by Tenet did not occur in Philadelphia, thus indicating Philadelphia should have been the appropriate venue.

In conclusion, although a plurality decision, the majority has indicated that the mere assertion of a corporate negligence claim against a corporation is insufficient to obtain venue in the county in which that corporation may be based.

* Wendy, an associate in our Newtown Square, Pennsylvania office, can be reached at (610) 355-7429 or wwalker@mdwcg.com.