Showell, Z. v. Abington Memorial Hosp.

• Court: Superior Court of Pennsylvania
• Decided: July 30, 2021
• Docket: 1407 EDA 2020
• Status: Unpublished

Opinion

J-S18034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ZELMA SHOWELL : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ABINGTON MEMORIAL HOSPITAL, : No. 1407 EDA 2020 ABINGTON HEALTH, AND ABINGTON : HEALTH PHYSICIANS C/O ABINGTON : MEMORIAL HOSPITAL :

Appeal from the Order Entered June 1, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 200200124

BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 30, 2021

This matter is an appeal filed by plaintiff Zelma Showell (Plaintiff) from

an order of the Court of Common Pleas of Philadelphia County (trial court)

sustaining preliminary objections to improper venue filed by the defendants,

Abington Memorial Hospital, Abington Health, and Abington Health Physicians

(collectively, Defendants), and transferring Plaintiff’s medical professional

liability action to the Court of Common Pleas of Montgomery County. For the

reasons set forth below, we affirm.

On February 3, 2020, Plaintiff filed this action in Philadelphia County

against Defendants alleging that they provided negligent medical care to her

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* Retired Senior Judge assigned to the Superior Court. J-S18034-21

for high blood pressure and strokes between July 19, 2018 and August 7,

2018.

In her complaint, Plaintiff alleges that she was admitted to defendant

Abington Memorial Hospital, which is located in Montgomery County, on July

19, 2020 with symptoms of headache, weakness, slurred speech, unsteady

gait, and facial droop and blood pressure readings of 273/133 and 200/91.

Complaint ¶¶2, 14, 16. Plaintiff alleges that she was treated there by

physicians and nurses employed by defendants Abington Health Physicians,

Abington Memorial Hospital, and Abington Heath and that during this

hospitalization, an acute stroke was detected and that her blood pressure

ranged from 123/83 to 229/106 and 227/135. Id. ¶¶5, 17-34. Plaintiff

further alleges that Abington Memorial Hospital discharged her on July 22,

2018, although her blood pressure readings that day ranged from 204/95 to

223/98, and that it failed to provide her with the blood pressure medications

she was to take after discharge or prescriptions for those medications. Id.

¶¶31-36.

Plaintiff alleges in her complaint that following her discharge, she

received home healthcare visits on July 23, 2018 and July 25, 2018 at her

home in Philadelphia from nurses that she alleges were employed by

defendant Abington Memorial Hospital or defendant Abington Health.

Complaint ¶¶37-38, 43-44. Plaintiff alleges that at the July 23, 2018 home

visit, her blood pressure was 160/88 and her “neurological assessment was

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intact except for slight slurred speech and slight dragging of left leg noted,

but these were reported to be improving.” Id. ¶42. Plaintiff also alleges that

at the July 23, 2020 home visit, the nurse concluded that Plaintiff did not have

required and prescribed medications and informed Abington Memorial Hospital

and/or Abington Health that Plaintiff did not have these medications. Id. ¶40.

Plaintiff alleges that at the July 25, 2018 home visit, Plaintiff had blood

pressure readings of 182/100 and 162/100 and “complained of headache, was

lethargic, had left sided weakness, was dragging her left leg with a shuffling

gait, had slurred speech, and was reportedly weaker, more lethargic, and not

eating/drinking well.” Id. ¶45. Plaintiff also alleges that at the July 25, 2020

home visit, the nurse informed Abington Memorial Hospital and/or Abington

Health that Plaintiff did not have required and prescribed medications and that

Plaintiff was sent to the Abington Memorial Hospital emergency room. Id.

¶¶49-50.

According to her complaint, Plaintiff was readmitted to Abington

Memorial Hospital on July 25, 2018 where she was again treated by physicians

and nurses employed by Abington Health Physicians, Abington Memorial

Hospital, and Abington Heath. Complaint ¶¶5, 51-90. Plaintiff alleges at the

time of her readmission, no evidence of any new stroke was found, but that

on July 28, 2018, during this hospitalization, she suffered a stroke. Id. ¶¶53,

63-65, 79. Plaintiff remained hospitalized at Abington Memorial Hospital until

August 7, 2018, when she was discharged to a rehabilitation facility. Id. ¶91.

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On March 11, 2020, Defendants filed preliminary objections to Plaintiff’s

complaint in which they asserted objections to venue and sought to strike

certain averments as insufficiently specific. In their venue objections,

Defendants contended that venue was not proper in Philadelphia County under

Pa.R.Civ.P. 1006(a.1) on the grounds that the negligent medical care alleged

by Plaintiff occurred in Montgomery County and sought transfer of the action

to Montgomery County. Plaintiff opposed Defendants’ preliminary objections,

asserting that venue was proper in Philadelphia County because Plaintiff had

received two home health care visits in Philadelphia. On June 1, 2020, the

trial court entered an order overruling Defendants’ specificity objections and

sustaining the venue objections and transferring the case to the Court of

Common Pleas of Montgomery County.

Plaintiff timely appealed the transfer of the case to Montgomery County.

Although the June 1, 2020 order is not a final order, it is an appealable

interlocutory order. Pa.R.A.P. 311(c) (“An appeal may be taken as of right

from an order in a civil action or proceeding changing venue, transferring the

matter to another court of coordinate jurisdiction, or declining to proceed in

the matter on the basis of forum non conveniens or analogous principles”).

Our review of this transfer of venue is limited to determining whether the trial

court abused its discretion. Wentzel v. Cammarano, 166 A.3d 1265, 1268

(Pa. Super. 2017); Peters v. Sidorov, 855 A.2d 894, 896 (Pa. Super. 2004).

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

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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.

Wentzel, 166 A.3d at 1268 (brackets in original) (quoting Jackson v.

Laidlaw Transit, Inc., 822 A.2d 56 (Pa. Super. 2003)).

Because this is a medical professional liability action, venue is proper

only in a county where at least one of Defendants provided negligent medical

care that caused an injury for which the plaintiff seeks to recover damages.

Pa.R.Civ.P. 1006(a.1), (c)(2); Wentzel, 166 A.3d at 1268-72; Peters, 855

A.2d at 897-98, 900. Rule 1006(a.1) provides in relevant part:

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.

Pa.R.Civ.P. 1006(a.1). Rule 1006(c) provides that where claims of joint and

several liability with respect to a medical professional liability claim are

asserted against two or more defendants, the action may be brought in any

county where the cause of action against any of the health care provider

defendants arose. Pa.R.Civ.P. 1006(c)(2). This Court has repeatedly held

that under Rule 1006(a.1), the cause of action in a medical professional

liability action arises in the county where the negligent medical care that

caused the plaintiff’s injury occurred. Wentzel, 166 A.3d at 1268-72;

Bilotti–Kerrick v. St. Luke’s Hospital, 873 A.2d 728, 731 (Pa. Super.

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2005); Peters, 855 A.2d at 897-98, 900; Olshan v. Tenet Health System

City Avenue, LLC, 849 A.2d 1214, 1217 (Pa. Super. 2004).

Plaintiff’s complaint establishes that the diagnoses and treatment of her

strokes and the failure to provide medications or prescriptions on discharge

all occurred at Abington Memorial Hospital in Montgomery County. Complaint

¶¶2, 14-36, 51-91. The complaint also alleges that the second stroke

occurred while Plaintiff was hospitalized in Montgomery County following

several days of hospitalization during which her blood pressure readings were

higher than they had been before her admission. Id. ¶¶51-65. Plaintiff

argues, however, that the trial court abused its discretion in transferring the

action because she also received two home health visits in Philadelphia

between the two hospitalizations. We do not agree.

While the complaint pleads that Plaintiff received health care from one

of Defendants in Philadelphia in these home visits, that is not sufficient to

establish venue in Philadelphia County. Rather, venue is proper only where

the negligent medical care at issue occurred. Wentzel, 166 A.3d at 1268-72

(venue proper in county where negligent delay in communicating medical

diagnosis and providing treatment occurred); Bilotti–Kerrick, 873 A.2d at

731 (venue proper only in county where negligent delay in performing medical

procedure occurred); Peters, 855 A.2d at 897-98, 900 (venue proper only in

county where physician negligently prescribed medication). Thus, in

Wentzel, this Court held that venue was proper in Philadelphia County, where

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suit was brought, not because some of the plaintiff’s non-negligent medical

treatment occurred in Philadelphia, but because “the essence of [the

plaintiff’s] complaint” was that a defendant’s actions in Philadelphia

negligently delayed communication of a medical diagnosis that required

immediate treatment and delayed treatment that he received in Philadelphia.

166 A.3d at 1268-72.

Here, the complaint’s averments concerning the home visits negate any

claim that Plaintiff’s cause of action against any of Defendants arose from

negligence in medical care provided in Philadelphia. Although the complaint

makes conclusory averments that Defendants were negligent on the dates

of the home health visits in failing to ensure that Plaintiff had and was taking

her blood pressure medications, Complaint ¶¶39, 48, 101(o)-(t), 108(o)-(t),

115(o)-(t), it does not allege that the nurses who provided the care in

Philadelphia at those visits acted negligently. To the contrary, the complaint

alleges that both home health care nurses were “aware that Plaintiff was

missing required and prescribed medications and placed a call to Abington

Memorial Hospital and/or Abington Health to informed [sic] them of and/or

obtain the missing medications.” Id. ¶¶40, 49. The complaint’s claims with

respect to these visits are thus claims that Defendants were negligent in

responding to the information that the nurses in Philadelphia provided.

Indeed, that the averments in paragraphs 101(o)-(t) and 108(o)-(t) of the

complaint relate to failure to respond to the information provided by the

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nurses, rather than any conduct of the nurses, is confirmed by the fact that

the complaint makes identical averments of negligence with respect to

defendant Abington Health Physicians, even though it alleges that the nurses

were employees of Abington Memorial Hospital or Abington Health, not

employees of Abington Health Physicians. Id. ¶¶37, 43, 115(o)-(t). All three

of the Defendants are located in Montgomery County, id. ¶¶2-4, and there is

no averment in the complaint that any Defendant’s failure to act on the

information provided by the home health care nurses occurred anywhere other

than Montgomery County.

Because the complaint asserts claims that Defendants provided

negligent medical care in Montgomery County and does not assert a claim that

medical care that any of Defendants provided in Philadelphia was negligent,

the trial court did not abuse its discretion in transferring the action to

Montgomery County. Bilotti–Kerrick, 873 A.2d at 731-32. Accordingly, we

affirm the trial court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/30/2021

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