2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

action arose. The trial court found that venue in Luzerne County was improper, but transferredthe case to Columbia County, where Plaintiff had suffered the injury.On appeal, the Superior Court stated the issue was where the cause of action arose andnoted that Pennsylvania Courts have defined “cause of action” to mean the negligent act oromission, as opposed to the injury which flows from the tortious conduct. The court furtherstated that it would be unfair to hold that a person could seek medical attention from a physicianin one county, receive a prescription from that physician, and then go to any county to ingest thatmedication and have the physician be subject to venue in whatever county that happens to be.The court held that the correct county for venue is the venue where the alleged negligenceoccurred and ordered the case transferred to Montour County.The Philadelphia Court of Common Pleas, citing Olshan, recently held that venue doesnot lie in the county where corporate action took place, but in the county where the actionaffected the patient. See Cohen v. Maternal Wellness Center, et al., 2007 Phila. Ct. Com. Pl.LEXIS 265 (Phila. Ct. Com. Pl. Aug. 22, 2007), aff’d, 946 A.2d 125 (Pa. Super. 2008). InCohen, Plaintiff developed pregnancy complications around the thirty-second week of herpregnancy. Id. In response to these complications Plaintiff consulted with Defendant TheMaternal Wellness Center and Defendant “Certified Childbirth Educator” (“PhiladelphiaDefendants”), both located in Philadelphia County. At the thirty-forth week of her pregnancy,following the advice of the Philadelphia Defendants, Plaintiff decided to treat with the DefendantGynecologists and to plan to deliver her baby at Lankenau Hospital. Defendant Gynecologistsand Lankenau Hospital are located in Wynnewood, Montgomery County.When Plaintiff’s contractions began, she traveled to Lankenau Hospital for labor anddelivery of her child. Plaintiff gave birth, but after suffering numerous post-partumcomplications, her son died at Thomas Jefferson University Hospital. Thomas JeffersonUniversity Hospital was not named as a defendant in the suit.Plaintiffs filed their complaint alleging negligence, medical malpractice and wrongfuldeath against the Philadelphia Defendants, defendant Gynecologists, Lankenau Hospital, andother defendants that provided pre- and post-natal care. Plaintiffs filed their Complaint inPhiladelphia County. Defendants filed timely Preliminary Objections in the form of a Motion toTransfer Venue to Montgomery County.The court held that proper venue lay in Montgomery County. The court determined thatthere was, at best, a tenuous connection with Philadelphia County based on the conversationswith, and advice received from, the Philadelphia Defendants. Although Plaintiff, as a result ofthis advice, decided to deliver her baby at Lankenau Hospital and receive pre-natal care fromdefendant Gynecologists, the court found that she did not actually receive any medical care inPhiladelphia County. The court, relying on the Superior Court’s decision in Olshan, held that thealleged negligent advice provided by the Philadelphia Defendants is exactly the type of “nonmedicalcare activity which cannot be the basis for venue under the MCARE Act.” Further, thecourt stated that Plaintiffs had not alleged that any medical care had been provided inPhiladelphia County. Therefore, the court held that venue was proper in Montgomery County asthat is where the plaintiff was “furnished” medical care. See also O’Connor v. Sandy Lane HotelCo., 496 F.3d 312 (3d Cir. 2007), in which the Third Circuit held that Defendant hotel in135