Olshan v. Tenet Health System City Avenue, LLC.

¶ 1 I must respectfully dissent from the majority opinion. The majority looks directly to the legislative intent in defining a medical provider liability claim to exclude its application to the corporate defendants (Tenet) in this case. This conclusion, however, ignores the plain meaning of the words in the statutes and rules governing a medical provider liability claim.

¶ 2 On appeal, appellant contends that the trial court misapplied Pa.R.C.P. 1006(a.1) when it found that her claims against Tenet did not include a medical provider liability claim and were not amenable to suit in Philadelphia County.

¶ 3 The relevant parts of Rule 10065 provide:

(a): Except as otherwise provided by subdivisions (a.1), (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.

(a.1): Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.

Note: See Section 5101.1(c) of the Judicial Code, 42 Pa.C.S.A. § 5101.1(c) for the definitions of "health care provider", "medical professional liability action" and "medical professional liability claim".

(c)(1): Except as otherwise provided by paragraph (2), an action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b).

(c)(2): If the action to enforce a joint or joint and several liability against two or more defendants includes one or more medical professional liability claims, the action shall be brought in any county in which the venue may be laid against any defendant under subdivision (a.1).

¶ 4 Under the general venue rule, a plaintiff can bring a lawsuit against a single defendant in the county where the defendant may be served, where the cause of action arose, or where a transaction or occurrence took place out of which the cause of action arose. Rule 1006(a.1), however, limits the general venue rule in medical provider liability actions. Under the subsection (a.1), a plaintiff can only bring a medical provider liability claim in the county where the alleged cause of action arose.

¶ 5 When there are multiple defendants in the lawsuit, the rule is similar. Generally, in actions where there is more than one defendant, and the plaintiff seeks joint or joint and several liability, the plaintiff's choice of venue can be where any one defendant may be served, where the cause of action arose, or where a transaction or occurrence took place out of which the cause of action arose. Subsection (c)(2), however, limits the general rule for multiple defendants if any part of the plaintiff's lawsuit includes a medical provider liability claim. If a medical provider liability claim arose in one county, but the plaintiff also has a non-medical provider liability claim that arose in another county, venue is only proper in the county where the medical *Page 1220 provider liability claim arose. But if there is more than one medical provider liability claim, and two or more of the claims arose in different counties, then the plaintiff can bring her lawsuit in any county where a medical provider liability claim arose.

¶ 6 There is no dispute that appellant's claim against Dr. Steinberg is a medical provider liability claim. Accordingly, the proper venue for that claim is Montgomery County because that is the place where the cause of action arose. The only way for venue to be proper in Philadelphia County is if appellant's claims against Tenet also include: (1) a medical provider liability claim that (2) arises out of Philadelphia County.

¶ 7 A "medical provider liability claim" is defined as: "Any claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided."42 Pa.C.S.A. § 5101.1(c).

¶ 8 The majority agrees that Tenet is a "health care provider". It has determined, however, that none of appellant's claims against Tenet can be considered a medical provider liability claim because Tenet did not "furnish health care services" to appellant in Philadelphia. The majority's exclusion of all administrative acts performed by corporate entities, "such as hiring physicians, drafting rules and regulations, and supervising staff," from the definition of "health care services" is incorrect and not supported by the statutory language used by the General Assembly and adopted by the Pennsylvania Supreme Court.

¶ 9 "Health care services" cannot be limited to actual medical care rendered. In 42 Pa.C.S.A. § 5101.1(c), which is the same statute that defines "medical provider liability claim", a "health care provider" is defined as:

. . . a person, including a corporation . . . licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center, and an officer, employee or agent of any of them acting in course and scope of employment. (Emphasis added). Clearly, a corporation can be a health care provider. The majority admits as much. How then, can a corporation be precluded from furnishing health care services? The majority's limitation of "health care services" to "actual medical care" conflicts with the definition of "health care provider", as a corporation cannot give a patient a check-up, deliver a baby, or prescribe medicine. Administrative acts must be included in the definition of "health care services." Otherwise, corporations and officers of corporations would have nothing to provide as health care providers.

¶ 10 Our case law supports the fact that administrative acts must be considered "health care services." In Edwards v.Brandywine Hospital, 652 A.2d 1382 (Pa.Super. 1995), this Court found that a corporate hospital could be liable in a medical liability claim. We noted that hospitals have the following duties: (1) to use reasonable care in maintaining safe and adequate facilities and equipment; (2) to choose and retain competent physicians; (3) to oversee persons who practice medicine within its walls as to patient care; and (4) to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. Edwards, 652 A.2d at 1386.

¶ 11 These duties include the administrative acts the majority excludes from the definition of health care services, and they are the same duties that appellant has alleged Tenet breached.See Plaintiff's *Page 1221 Complaint, at 3, 4, 6 and 7. Simple logic dictates that if corporate entities can be considered health care providers, then they must also be able to furnish health care services. Accordingly, I would find that appellant's claims against Tenet include medical provider liability claims.

¶ 12 The majority also claims that Tenet did not "furnish" anything to appellant in Philadelphia. Tenet, however, may ormay not have provided health care services to appellant in Philadelphia County. The trial court stated that even if it considered appellant's claim against Tenet to be a medical provider liability claim, "[t]his Court can not conclude that this deviation of [Tenet] did not occur at the very facility where the malpractice occurred, and where Dr. Steinberg was practicing, in Montgomery County." Trial Court Opinion, 8/6/2003, at 2-3.

¶ 13 While the trial court's observation may be true, it is more important that there is no evidence in the record that thealleged deviation by Tenet did not occur in Philadelphia County. It is well settled that a plaintiff does not bear the burden of showing that venue is proper towards a defendant; rather, a defendant has the burden of showing that the plaintiff's choice of venue is improper towards him. See Purcell v. Bryn MawrHospital, 579 A.2d 1282, 1284 (Pa. 1990).

¶ 14 Through his preliminary objections, Dr. Steinberg established that venue in Philadelphia was improper as to him because the alleged medical provider liability claim againsthim arose in Montgomery County. The preliminary objections, however, did not establish that the alleged medical provider liability claims against Tenet arose in Montgomery County. In fact, the trial court explicitly states that it cannot conclude that the causes of action against Tenet arose in Montgomery County. Accordingly, the trial court should have affirmed Philadelphia County as appellant's choice of venue because Tenet failed to prove that the cause of actions against it did not arise there.

¶ 15 Based on the foregoing, I would conclude that the trial court erred when it transferred venue to Montgomery County.

¶ 16 I, therefore, respectfully dissent.

5 The venue rules for a corporation fall under Pa.R.C.P. 2179. The recent amendments to Rule 1006, however, are also applicable to corporations with regard to medical provider liability actions. See Note and Explanatory Comment — 2003 to Pa.R.C.P. 2179.