J-A08039-17
2017 PA Super 233
MAXAMOR WENTZEL, A MINOR, BY : IN THE SUPERIOR COURT OF
HIS PARENT AND NATURAL : PENNSYLVANIA
GUARDIAN CHARISMA WENTZEL, :
AND CHARISMA WENTZEL, IN HER :
OWN RIGHT :
:
:
v. :
: No. 1159 EDA 2016
:
DOMINIC CAMMARANO, III, D.O.; :
READING HEALTH PHYSICIAN :
NETWORK; READING OB/GYN, P.C., :
READING OB/GYN & WOMEN'S :
BIRTH CENTER, LLC; READING :
HOSPITAL; READING HEALTH :
SYSTEM; ALL ABOUT CHILDREN :
PEDIATRIC PARTNERS, P.C.; TENET :
HEALTH SYSTEM; ST. :
CHRISTOPHER'S HOSPITAL FOR :
CHILDREN, LLC; ST. CHRISTOPHER'S :
HOSPITAL FOR CHILDREN; HEART :
CENTER FOR CHILDREN AND :
ALLEGHENY INTEGRATED HEALTH :
GROUP :
:
:
APPEAL OF: CHARISMA WENTZEL, :
INDIVIDUALLY IN HER OWN RIGHT, :
AND AS PARENT AND NATURAL :
GUARDIAN OF MAXAMOR WENTZEL
Appeal from the Order Entered March 24, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 4185 August Term, 2015
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A08039-17
OPINION BY STEVENS, P.J.E.: FILED JULY 19, 2017
Maximor Wentzel (“Maximor”), a minor, by his parent and natural
guardian, Charisma Wentzel, and Charisma Wentzel in her own right
(“Appellants”), appeal from the order entered in the Court of Common Pleas
of Philadelphia County sustaining preliminary objections to venue and
transferring the action to Berks County. We vacate the order and remand
for proceedings consistent with this decision.
This medical malpractice action arises from, inter alia, the allegedly
negligent failure of Philadelphia’s St. Christopher’s Hospital (“SCHC”) and its
resident cardiologist Dr. Lindsay Rogers to timely transmit her diagnosis and
treatment plan for Maximor based on her reading of an emergency
transthoracic echocardiogram performed on the premature newborn, who
was receiving neonatal intensive care at Reading Hospital, Berks County.
Dr. Rogers’ diagnosis was pulmonary hypertension requiring immediate
treatment or intervention, which she recommended SCHC should provide.
Appellants alleged in their complaint that the resultant one-day delay
in putting Dr. Rogers’ treatment plan into effect amounted to the negligent
provision of health care services causing harm to Maximor. The trial court,
however, sustained Appellees’ preliminary objections to venue in
Philadelphia County and transferred the matter to Berks County, as it
rejected Appellants’ argument that transmission of Dr. Rogers’ impressions,
diagnoses, and treatment plan for immediate transfer to SCHC constituted
the furnishing of “health care services” as defined under both the MCARE
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Act1 and Pennsylvania Rules of Civil Procedure implementing such
legislation. Instead, the court agreed with Appellees’ position that
Appellants’ complaint was predicated on an allegation of mere clerical error
falling outside the ambit of such controlling authority.
The trial court aptly provides a more detailed account of the case
history pertinent to the issue before us:
This matter was instituted by Complaint on September 1, 2015.
[Appellants] brought this medical professional liability action
against [Appellees], alleging professional liability claims against
all Appellees, as well as direct corporate negligence claims as to
the Reading facilities and St. Christopher’s.
Appellant, Christina Wentzel, underwent prenatal care with Dr.
Cammarano and the Reading Appellees. See, Complaint at ¶ 28.
Appellant’s obstetrical history of having a prior child with
Intrauterine Growth [Restriction] (“IUGR”) and prior pre-term
delivery at 32 weeks with low amniotic fluid was disclosed at the
start of Appellant’s treatment. ¶ 29. Appellant’s initial prenatal
appointment of May 9, 2013, noted Ms. Wentzel to be 17 5/7
weeks gestation per her last menstrual cycle. Appellant was
given an estimated due date of October 12, 2013. ¶ 31.
Appellee, Cammarano, performed a prenatal ultrasound at 20
6/7 weeks gestation (based upon Appellant’s last menstrual
period) which noted normal amniotic fluid and a calculated
gestational age of 18 5/7 weeks. ¶ 33. No change was made
to note the difference in Appellant’s gestational age. ¶ 35. Dr.
Cammarano performed prenatal ultrasounds again in July, 2013
____________________________________________
1
The Medical Care Availability and Reduction of Error (“MCARE”) Act of
March 20, 2002, P.L. 154, as amended, 40 P.S. § 1303.101–1303.910,
replaced its predecessor, the Health Care Services Malpractice Act
(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 § 101 et seq., as
amended, 40 P.S. § 1301.101 et seq.
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and August, 2013. Each visit indicated a difference in her
gestational age. ¶ 36-37. Appellant’s next prenatal ultrasound
on September 10, 2013, indicated a decreased amniotic fluid
level, the fetus was in the breech position, and oligohydramnios
was diagnosed. ¶ 40. Appellant was admitted to Reading
Hospital for an emergency caesarean section delivery. ¶ 43.
Shortly after birth on September 10, 2013, the child was
transferred to the Neonatal Intensive Care Unit (“NICU”). ¶ 48.
The child continued to suffer from serious respiratory distress
requiring intubation and ventilation treatment. ¶ 49-54.
On September 12, 2013, a transthoracic echocardiogram was
performed at Reading Hospital at approximately 12:41 p.m. ¶
56. The echocardiogram report was sent to Appellee, St.
Christopher’s for interpretation. ¶ 57. The report was
interpreted and signed by Dr. Lindsay Rogers at St.
Christopher’s. The report was signed at 5:39 p.m. on
September 12, 2013. ¶ 59. The report indicated pulmonary
hypertension and tricuspid valve insufficiency requiring
immediate treatment. ¶ 60.
The report was transmitted back to Reading Hospital from St.
Christopher’s on September 13, 2013, at 8:40 p.m. ¶ 62. At this
point, the child had persistent pulmonary hypertension, and
began receiving advanced respiratory treatments.
On September 14, 2013, the child was transported from Reading
Hospital to St. Christopher’s with [ ] final diagno[ses] of
persistent pulmonary hypertension of newborn, respiratory
distress [syndrome] and preterm infant. St. Christopher’s noted
the child to be symmetrically small for gestational age with
feeding difficulties. ¶¶ 71, 73.
The child was transferred from St. Christopher’s back to Reading
Hospital on October 7, 2013, where he remained until November
18, 2013. ¶76. During this time, the child was noted to have
serious respiratory issues, feeding difficulties, gastroesophageal
reflux and failure to thrive. The child was again transferred from
Reading Hospital to St. Christopher’s on November 18, 2013. ¶¶
77-78.
During the child’s second admission to St. Christopher’s, a CT
scan revealed an old, healing rib fracture first seen on November
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15, 2013, while the child was a patient at Reading Hospital. ¶
80. Appellants allege the fracture could have occurred at
Reading Hospital during the September 10 – September 14,
2013, stay; St. Christopher’s during the September 14 – October
7, 2013, stay; or at Reading Hospital during the October 7 –
November 18, 2013, stay. ¶ 81. The child was then transferred
to Hershey Medical Center (not a party to this action) where he
remained until May 13, 2014. ¶82.
The Reading Appellees filed Preliminary Objections to Appellants’
Complaint raising, inter alia, improper venue pursuant to
Pa.R.C.P. 1006(a.1).[] Specifically, Appellees argued the
Appellants failed to raise any allegations of professional
negligence stemming from medical care furnished to the child in
Philadelphia County while at St. Christopher’s. [The trial court]
scheduled an argument and evidentiary hearing regarding the
objection to venue, after which the Preliminary Objections were
sustained, and this matter was transferred to Berks County.
This appeal followed.
Trial Court Opinion, filed 8/18/16, at 1-4.
Appellant appealed and presents the following question for our review:
I. DID THE TRIAL COURT ERR IN SUSTAINING THE
PRELIMINARY OBJECTION OF DOMINIC
CAMMARANO, III, D.O., READING HEALTH
PHYSICIAN NETWORK, READING OB/GYN BIRTH &
WOMEN’S CENTER, LLC, READING HOSPITAL AND
READING HEALTH SYSTEM WITH REGARD TO VENUE
AND TRANSFERRING THIS MATEER [SIC] TO BERKS
COUNTY?
Appellant’s brief at 5.
It is well established that a trial court's decision to transfer
venue will not be disturbed absent an abuse of discretion. A
plaintiff's choice of forum is to be given great weight, and the
burden is on the party challenging the choice to show it was
improper. However, a plaintiff's choice of venue is not absolute
or unassailable. Indeed, [i]f there exists any proper basis for
the trial court's decision to grant a petition to transfer venue, the
decision must stand.
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J-A08039-17
Act1 and Pennsylvania Rules of Civil Procedure implementing such
legislation. Instead, the court agreed with Appellees’ position that
Appellants’ complaint was predicated on an allegation of mere clerical error
falling outside the ambit of such controlling authority.
The trial court aptly provides a more detailed account of the case
history pertinent to the issue before us:
This matter was instituted by Complaint on September 1, 2015.
[Appellants] brought this medical professional liability action
against [Appellees], alleging professional liability claims against
all Appellees, as well as direct corporate negligence claims as to
the Reading facilities and St. Christopher’s.
Appellant, Christina Wentzel, underwent prenatal care with Dr.
Cammarano and the Reading Appellees. See, Complaint at ¶ 28.
Appellant’s obstetrical history of having a prior child with
Intrauterine Growth [Restriction] (“IUGR”) and prior pre-term
delivery at 32 weeks with low amniotic fluid was disclosed at the
start of Appellant’s treatment. ¶ 29. Appellant’s initial prenatal
appointment of May 9, 2013, noted Ms. Wentzel to be 17 5/7
weeks gestation per her last menstrual cycle. Appellant was
given an estimated due date of October 12, 2013. ¶ 31.
Appellee, Cammarano, performed a prenatal ultrasound at 20
6/7 weeks gestation (based upon Appellant’s last menstrual
period) which noted normal amniotic fluid and a calculated
gestational age of 18 5/7 weeks. ¶ 33. No change was made
to note the difference in Appellant’s gestational age. ¶ 35. Dr.
Cammarano performed prenatal ultrasounds again in July, 2013
____________________________________________
1
The Medical Care Availability and Reduction of Error (“MCARE”) Act of
March 20, 2002, P.L. 154, as amended, 40 P.S. § 1303.101–1303.910,
replaced its predecessor, the Health Care Services Malpractice Act
(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 § 101 et seq., as
amended, 40 P.S. § 1301.101 et seq.
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J-A08039-17
where Reading Doctors were clearly awaiting her guidance, and the delay in
treatment that resulted, were acts of professional negligence from which the
cause of action arose, the complaint maintained, and such acts occurred in
Philadelphia.
In their preliminary objections, however, Appellees argued first that
the complaint alleged merely clerical or ministerial, rather than professional,
negligence with respect to the actions of Dr. Rogers and the support staff of
St. Christopher’s, and the trial court agreed.
Herein, Appellants contend that the alleged negligence consists of the
denial of health care services that should have been delivered to a patient in
immediate need of such services. Such a denial transcends mere clerical
negligence as found by the trial court, Appellants argue, as SCHC and the
other named corporate affiliates denied Maximor necessary treatment when
_______________________
(Footnote Continued)
echocardiogram to the physicians at Defendant Reading
Hospital;
Failing to timely and/or properly make treatment and/or transfer
recommendations to the physicians at Defendant Reading
Hospital based upon the September 12, 2013 echocardiogram;
and
Failing to timely provide treatment and/or intervention, including
medical therapies, ventilation therapies, and/or transfer to
Defendant SCHC/Tenet/Allegheny, based upon the results of the
September 12, 2013 echocardiogram.
See Appellants’ Complaint, filed 9/1/15, at ¶¶ 57-62, 129-30, 132-33,
136-37, 139-40.
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their agents, Dr. Rogers and St. Christopher’s Hospital staff, failed to deliver
it as reasonably expected.
We agree that Appellants’ complaint asserting both corporate and
vicarious liability based on the omissions of Dr. Rogers and hospital staff
puts forth a case of medical malpractice against Appellees. Indeed, in
Rostock v. Anzalone, 904 A.2d 943 (Pa.Super. 2006), this Court held that
a complaint accusing a medical care professional of failure to recommend
appropriate work-up for a patient, to notify a patient of test results, or to
maintain proper patient records made out allegations of professional, not
clerical, failure, as such services strongly imply acts of diagnosis and/or
treatment which may only be provided by a medical professional. Id. at
946. Even if the maintenance of patient records were largely clerical, we
continued, the physician, “as the professional charged with supervising
employees in a professional context, would be responsible for their
derelictions under the doctrine of vicarious liability.” Id. Relying on the
same rationale expressed in Rostock, we reject the conclusion of the trial
court that Appellants’ complaint alleged merely clerical or ministerial
negligence. The allegation of errors committed by Dr. Rogers and the
support staff at St. Christopher’s Hospital, causing delay in care to Maximor,
sounded, instead, in medical malpractice.
Also underpinning the trial court’s transfer of venue, however, was its
conclusion that Dr. Rogers’ alleged negligence occurring on September 12,
2013, occurred before Maximor was in her direct care in Philadelphia. See
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Trial Court Opinion, at 11-12. According to the trial court, a triad of
Superior Court decisions, Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008),
Bilotti –Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005),
and Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214
(Pa.Super. 2004), thus guided its decision to remove the case from
Philadelphia County. We find the trial court’s application of these cases to
the present matter unpersuasive, as our jurisprudence expressed therein
does not support transfer of venue as it occurred here.
In Bilotti-Kerrick, a patient was admitted to Northampton County’s
Pocono Medical Center with nausea and numbness in her arms. Doctors
determined she needed immediate cardiac catheterization, which was not
available at PMC. At 3:00 a.m., they contacted a cardiologist at his
Northampton County home, and he directed them to have her at Lehigh
County’s St. Luke’s Hospital at 6:00 a.m., where he said he would be waiting
at the cardiac catheterization lab.
Patient was life-flighted to Lehigh County, but her delivery to St.
Luke’s critical care unit instead of the cardiac catheterization lab, coupled
with the cardiologist’s late arrival at 10:15 a.m., pushed back her
catheterization until noon, six hours after the prescribed time. Two days
and two emergency surgeries later, the patient died.
Plaintiffs filed suit in Northampton County, but the court sustained
preliminary objections requesting transfer of venue to Lehigh County. This
Court affirmed.
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We held the cause of action, i.e., “the negligent act or omission, as
opposed to the injury which flows from the tortious conduct[,]” arose in
Lehigh County. All claims of negligence were based on the delay in the
performance of the cardiac catheterization at St. Luke’s, Lehigh County.
Although the cardiologist telephonically accepted the case, ordered transport
of the patient, and arranged a catheterization time from his Northampton
home, the essence of the claim is that he and other defendants committed
oversights and errors in Lehigh County that caused the failure to furnish the
patient with a timely catheterization that he should have received in Lehigh
County.
Similarly, in the case sub judice, Appellants’ complaint did not dispute
that Dr. Rogers made an appropriate diagnosis and devised a suitable
treatment plan calling for the immediate transfer of Appellant to her care.
Instead, it alleged that she failed to furnish these services to Maximor as
quickly as she, herself, opined was indicated because of her and her staff’s
negligent failure to put the plan into effect in a timely manner.
Just as the complaint in Bilotti-Kerrick alleged Lehigh County-based
negligence was the cause of delayed implementation of an otherwise
appropriate treatment plan, so, too, did Appellant’s complaint charge Dr.
Rogers and the staff of SCHC with failing to effect timely implementation of a
treatment plan in Philadelphia County. In each case, the plaintiff sought
venue in the county of the alleged negligent acts and omissions interfering
with the intended provision of health care in that county. Contrary to the
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trial court’s opinion, therefore, we find Bilotti-Kerrick to support
Appellant’s position that venue was proper in Philadelphia.
Neither does our holding in Olshan support transfer in the present
case. In Olshan, Montgomery County physicians and facilities performed
and misread plaintiff’s mammogram. Plaintiff sued Philadelphia parent
company in Philadelphia County, under theories of both vicarious and
corporate liability. On the defendant’s preliminary objections, the Court of
Common Pleas of Philadelphia transferred venue to Montgomery County.
This Court affirmed, holding that venue depends upon where “health
care services” were furnished to the patient. “Nothing was ‘furnished’ to
[the] patient in Philadelphia. All of her treatment (health care services) took
place in Montgomery County[,]” we observed. Id. at 1216.
Notably, Olshan is factually distinguishable from the present matter,
as the Olshan complaint did not allege that physicians negligently provided
health care services in Philadelphia. Instead, the complaint alleged that
physician negligence took place where both physician and patient were
situated, in Montgomery County.3
____________________________________________
3
The Olshan decision also set forth a hypothetical suggesting that the
location where services are furnished is determined by the location of the
patient, not the health care professional:
For example, if a hospital pharmacy in Philadelphia mislabeled a
drug in Philadelphia by putting it into the wrong vials when
repacking it for administration to patients, and a patient in
Montgomery County received the drug, . . . since the drug was
(Footnote Continued Next Page)
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their agents, Dr. Rogers and St. Christopher’s Hospital staff, failed to deliver
it as reasonably expected.
We agree that Appellants’ complaint asserting both corporate and
vicarious liability based on the omissions of Dr. Rogers and hospital staff
puts forth a case of medical malpractice against Appellees. Indeed, in
Rostock v. Anzalone, 904 A.2d 943 (Pa.Super. 2006), this Court held that
a complaint accusing a medical care professional of failure to recommend
appropriate work-up for a patient, to notify a patient of test results, or to
maintain proper patient records made out allegations of professional, not
clerical, failure, as such services strongly imply acts of diagnosis and/or
treatment which may only be provided by a medical professional. Id. at
946. Even if the maintenance of patient records were largely clerical, we
continued, the physician, “as the professional charged with supervising
employees in a professional context, would be responsible for their
derelictions under the doctrine of vicarious liability.” Id. Relying on the
same rationale expressed in Rostock, we reject the conclusion of the trial
court that Appellants’ complaint alleged merely clerical or ministerial
negligence. The allegation of errors committed by Dr. Rogers and the
support staff at St. Christopher’s Hospital, causing delay in care to Maximor,
sounded, instead, in medical malpractice.
Also underpinning the trial court’s transfer of venue, however, was its
conclusion that Dr. Rogers’ alleged negligence occurring on September 12,
2013, occurred before Maximor was in her direct care in Philadelphia. See
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J-A08039-17
Trial Court Opinion, at 11-12. According to the trial court, a triad of
Superior Court decisions, Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008),
Bilotti –Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005),
and Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214
(Pa.Super. 2004), thus guided its decision to remove the case from
Philadelphia County. We find the trial court’s application of these cases to
the present matter unpersuasive, as our jurisprudence expressed therein
does not support transfer of venue as it occurred here.
In Bilotti-Kerrick, a patient was admitted to Northampton County’s
Pocono Medical Center with nausea and numbness in her arms. Doctors
determined she needed immediate cardiac catheterization, which was not
available at PMC. At 3:00 a.m., they contacted a cardiologist at his
Northampton County home, and he directed them to have her at Lehigh
County’s St. Luke’s Hospital at 6:00 a.m., where he said he would be waiting
at the cardiac catheterization lab.
Patient was life-flighted to Lehigh County, but her delivery to St.
Luke’s critical care unit instead of the cardiac catheterization lab, coupled
with the cardiologist’s late arrival at 10:15 a.m., pushed back her
catheterization until noon, six hours after the prescribed time. Two days
and two emergency surgeries later, the patient died.
Plaintiffs filed suit in Northampton County, but the court sustained
preliminary objections requesting transfer of venue to Lehigh County. This
Court affirmed.
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physician and patient were in the same location at the time the doctor
prescribed prednisone, its holding nevertheless centers on the location of the
physician’s negligent act in assessing where the cause of action arose under
Rule 1006(a.1).
In summary, the essence of Appellant’s complaint was that Dr. Rogers
and SCHC failed to furnish Maximor, whom they intended to treat upon his
immediate transfer to SCHC, with the timely care Dr. Rogers indicated he
should receive at SCHC. As described, Dr. Rogers’ involvement in
Maxamor’s case transcended the mere offer of advice from a remote
location. She was, instead, expected to direct Maximor’s course of care, and
she clearly commenced in that role with her report. Like in Bilotti and
Cohen, the complaint alleged negligent acts in Philadelphia that deprived
Maximor of the health care services Dr. Rogers indicated he should have in
Philadelphia at a critical time in his case.
Because the trial court’s rationale for transferring venue to Berks
County was flawed, therefore, we vacate the order transferring venue and
reinstate venue in Philadelphia County.
Order vacated. Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.
Judge Panella joins the Opinion.
Judge Lazarus files a concurring statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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