2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

apply and that the trial court misapplied the law when it transferred the case to MontgomeryCounty.In Olshan v. Tenet Health System, 849 A.2d 1214 (Pa. Super. Ct. 2004), appeal denied,864 A.2d 530 (Pa. 2004), Plaintiff appealed an order of the Philadelphia County Court sustainingpreliminary objections filed by Defendants, corporate health care providers and a doctor,regarding venue and transferring the case to Montgomery County for trial.Plaintiff’s mammogram had been taken and read by a doctor in Montgomery County. Acancerous lesion was missed in this reading, resulting in a much more serious cancer whenfinally diagnosed. Plaintiff sued the doctor for malpractice. Plaintiff also sued the corporateproviders who were located in Philadelphia County, alleging corporate liability in failing toretain competent physicians, failing to implement adequate rules and policies and failing tosupervise. The patient had received no treatment in Philadelphia County. All treatment occurredin Montgomery County.The Superior Court held that the trial court properly transferred venue to MontgomeryCounty because all of the medical care was furnished to the patient in Montgomery County andtherefore the “cause of action arose” in Montgomery County. In so holding, the Court examinedRule 1006. The Court also looked at the MCARE Act, which defines “medical professionalliability claim”, in part, as “resulting from the furnishing of health care services”. The Courtconcluded that venue is created not by where alleged corporate negligence occurred, but wherethe action affected the patient. i.e. where the care was “furnished.”In Searles v. Estrada, 856 A.2d 85 (Pa. Super. Ct. 2004), appeal denied, 871 A.2d 192(Pa. 2005), the parties all resided in Pennsylvania. The surgical procedure from which the actionarose occurred in a New Jersey hospital. Plaintiffs filed their complaint in Pennsylvania andDefendant doctor filed preliminary objections in the nature of a motion to dismiss on the basis ofimproper venue. The trial court denied this motion.On appeal, Defendant contended that the court had erred in failing to dismiss the actionpursuant to Rule 1006(a.1). The Superior Court concluded that the newly amended Rule 1006applied to the case and that because the cause of action arose in New Jersey venue was notproper in any county in Pennsylvania. Because there was no county in Pennsylvania to whichthe trial court could properly transfer the case, the only alternative available was dismissal.Consequently, the trial court erred in failing to sustain the doctor’s preliminary objections basedon improper venue and in failing to grant his motion to dismiss.In Peters v. Geisinger Medical Center, 855 A.2d 894 (Pa. Super. Ct. 2004), the SuperiorCourt held that venue is proper where alleged acts of negligence occurred and not where thealleged injury to the patient occurred.Plaintiff received outpatient medical care from Defendant physicians in MontourCounty. She alleged that the doctors negligently prescribed a drug which caused her to suffer anallergic reaction at her home in Columbia County. Plaintiff filed suit in Luzerne County.Defendants filed a petition to transfer venue to Montour County where they argued the cause of134