Olshan v. Tenet Health System City Avenue, LLC.

849 A.2d 1214, 2004 Pa. Super. 128, 2004 Pa. Super. LEXIS 704, 2004 WL 859169
CourtSuperior Court of Pennsylvania
DecidedApril 22, 2004
DocketNo. 1690 EDA 2003
StatusPublished
Cited by17 cases

This text of 849 A.2d 1214 (Olshan v. Tenet Health System City Avenue, LLC.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olshan v. Tenet Health System City Avenue, LLC., 849 A.2d 1214, 2004 Pa. Super. 128, 2004 Pa. Super. LEXIS 704, 2004 WL 859169 (Pa. Ct. App. 2004).

Opinions

KLEIN, J.:

¶ 1 Lois Olshan appeals from the order entered on April 10, 2003 in the Court of Common Pleas of Philadelphia County granting defendants’ preliminary objections regarding venue and transferring the case to Montgomery County for trial. The underlying claim was that after a mammogram was taken and read in Montgomery County, a cancerous lesion was missed, resulting in a much more serious cancer when finally diagnosed. The corporate defendants in Philadelphia County were sued either because the Montgomery County physicians and facilities were agents of the Philadelphia corporate defendants or because of corporate liability in failing to retain competent physicians, inadequate rules and policies, and failure of supervision. Since all the medical care was “furnished” to the patient in Montgomery County, we hold that the cause of action arose in Montgomery County and under the new venue rule and statute, venue is not proper in Philadelphia County. Therefore, we affirm.

History

¶2 In June 2000, Olshan visited Bala Imaging Center and Stanley Steinberg, M.D. to obtain a mammogram. Bala Imaging is located in Montgomery County. Olshan now claims Dr. Steinberg negligently failed to detect a cancerous mass in her breast. The mass was detected later by which time the cancerous lesion had metastasized to her axillary lymph nodes. This delay in diagnosis has allegedly resulted in a more extensive and deleterious course of treatment and caused a significant reduction in her chances for survival.

¶ 3 Lois Olshan received no treatment in Philadelphia County, but only in Montgomery County. While background activities, such as hiring the physicians, training the staff, and establishing rules might have occurred in Philadelphia, nothing directly involving patient care took place in Philadelphia. Had Dr. Steinberg not encountered Olshan in Montgomery County, there would be no cause of action for this patient, no matter the hiring practices or training in Philadelphia.

¶ 4 Olshan has also alleged Bala Imaging was owned and/or operated by one or all of the corporate defendants: Tenet Health System City Avenue, LLC; Tenet Physicians Services; Tenet Health Systems Philadelphia, Inc.; and Tenet Healthcare Corp. Olshan alleges that Dr. Stein-berg acted as an agent or ostensible agent of these corporate defendants. The allegations against the corporate defendants include the systematic or administrative negligence in: 1) failing to retain only competent physicians; 2) failing to formulate, adopt and enforce adequate rules and policies to ensure quality care; and 3) failing to oversee the activities of its agents, servants, employees and/or ostensible agents.

¶ 5 All of the corporate defendants, with the exception of Tenet Healthcare Corp., have their primary places of business in Philadelphia County.1 The preliminary objections to venue were filed pursuant to Pa.R.C.P. 1006(a.l), which specifically governs venue for medical professional liability claims. Appellees argued Montgomery County was the proper venue because that was where the cause of action, failure to diagnose, allegedly occurred. The trial court agreed and transferred the case to Montgomery County.

Discussion

With the facts in mind, we look to the Rules of Civil Procedure.

[1216]*12161. Definitional clauses

¶ 6 The rules for venue for a medical negligence action are found at Pa. R.C.P. 1006. The rules were amended along with the statutory changes embodied in the MCARE Act, to go into effect concurrently with the MCARE Act and reflect the same intent as the General Assembly.2 The venue rules refer back to specific sections of MCARE for both definitions and general rules. Thus, the Supreme Court, which has the sole responsibility for the promulgation of rules regarding venue, has adopted the same rules as promulgated by the General Assembly.

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.

Pennsylvania Rule of Civil Procedure 1006(a.l).

¶ 7 To see whether a “cause of action arose” in Philadelphia, the Rules of Civil Procedure refer us to the definitional section of a “medical professional liability action.” That is defined as any action where a “medical professional liability claim” is made, so that phrase becomes the operative language. The definition of “medical professional liability claim” is found in 42 Pa.C.S.A. § 5101.1(c):

“Medical professional liability claim.”

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 háve been provided. (Emphasis supplied.)

¶ 8 Nothing was “furnished” to this patient in Philadelphia. All of her treatment (health care services) took place in Montgomery County. Therefore, whether or not Tenet is considered a “health care provider” for purposes of this suit, no health care services were furnished in Philadelphia.

¶ 9 It certainly is true that in many circumstances a hospital is a health care provider and can be subject to liability both on a vicarious liability basis and on a corporate negligence basis. However, to create venue, it is not the county where the corporate action took place that determines venue, but the county where the action affected the patient. That is where the care was “furnished.” 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 a Montgomery County received the drug, certainly the hospital would be liable as a health care provider. However, since the drug -was furnished to the patient in Montgomery County, venue would not be proper in Philadelphia. Likewise, an x-ray taken and read in Montgomery County by a staff radiologist employed by a Philadelphia hospital and paid out of the Philadelphia office would be an act of the Philadelphia hospital as health care provider but still would not create venue in Philadelphia.3

[1217]*1217¶ 10 Moreover, in this case, the “health care services” that were provided to the patient were taking and reading a mammogram, not hiring, supervising, or providing rules and regulations for staff. Although “health care services” are not defined in the statute, we may look to other sources for guidance. Pennsylvania statues are replete with references to “health care services.” 4 For example: 40 P.S. § 1553 defines “basic health services” as those health services, including, but not limited to, emergency care, inpatient hospital and physician care, ambulatory physician care, and outpatient and preventive medical services. “Primary health care services” is defined in 35 P.S. § 449.43 as including, but not limited to, regular checkups, immunizations, school physicals, health educations, prenatal and obstetrical care, early periodic screening and diagnostic testing and health education. Similarly, 23 Pa.C.S. § 4326 defines “health care coverage” as coverage for medical, dental, optical, psychological, psychiatric or other health care services for a child.

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Olshan v. TENET HEALTH SYS. CITY AVENUE
849 A.2d 1214 (Superior Court of Pennsylvania, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
849 A.2d 1214, 2004 Pa. Super. 128, 2004 Pa. Super. LEXIS 704, 2004 WL 859169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olshan-v-tenet-health-system-city-avenue-llc-pasuperct-2004.