Friedman, S. v. Devon Manor ( 2016 )

J. A19001/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
STEVEN FRIEDMAN, MD, : IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS EXECUTOR OF : PENNSYLVANIA
THE ESTATE OF GAIL FRIEDMAN, :
DECEASED, :
:
Appellant :
:
v. :
:
DEVON MANOR AND : No. 2707 EDA 2015
HEARTLAND PHARMACY OF PA LLC, :
AND HCR MANOR CARE, INC. :
Appeal from the Order Entered July 22, 2015,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. November Term, 2014 No. 01684
BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 12, 2016
Steven Friedman, M.D., appeals, pro se,1 from the order of July 22,
2015, granting defendants/appellees’ motion to transfer this matter to
Chester County on the ground that venue in Philadelphia County was
improper. After careful review, we affirm.
The trial court has summarized the history of this case as follows:
[Appellant] is a resident of Newtown Square,
Pennsylvania, in Delaware County. Fourth Amended
Complaint, at ¶ 1. Defendants Devon Manor and
* Former Justice specially assigned to the Superior Court.
1
Appellant is a board-certified doctor of internal medicine and also an
attorney. (Appellant’s brief at 5.)
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[HCR] Manor Care (Manor Care) operate a skilled
nursing facility located in Chester County. Defendant
Heartland Pharmacy of PA, LLC (Heartland), is Devon
Manor’s off-site pharmacy and is located in
Allentown, Pennsylvania, in Lehigh County. Id. at
¶¶ 3-5. [Appellant]’s nineteen-count complaint
advances tort claims on his own behalf and medical
negligence claims on behalf of the estate of his wife,
Gail Friedman (Mrs. Friedman).
[Appellant]’s complaint, filed originally in
November 2014, alleges that [appellant]’s wife was
admitted to Devon Manor on November 16, 2012, for
post-hospitalization rehabilitation. Id. at 25. She
was discharged on January 5, 2013. Id.
[Appellant], Board-certified in Internal Medicine, was
a member of Devon Manor’s staff and was
Mrs. Friedman’s only attending physician. Id. at
¶¶ 22-23. On or about November 16, 2012,
[appellant] ordered a medication called Miralax for
bowel regulation. Id. at ¶¶ 37-38. He alleges that
unbeknownst to him defendants ordered and
administrated Mirapex (instead of Miralax) which was
delivered in a mislabeled container. Id. at ¶¶ 39-41.
Mirapex is the brand name for “generic pramipexole,
a medicine used for treating the signs and symptoms
of idiopathic Parkinson’s disease and moderate-to-
severe primary Restless Legs Syndrome.” Id. at
¶ 42. It is not indicated for bowel regulation. Id.
[Appellant] alleges that the Mirapex worsened or
accelerated Mrs. Friedman’s Lewy Body Disease
(LBD), a condition consistent with her clinical
diagnosis of Gaucher-related Parkinsonism. Id. at
¶¶ 44, 58. He alleges that the medication error
hastened her death. Id. at ¶ 114. He alleges
further that the defendants sought to dissuade him
from taking action against them and otherwise acted
to conceal their mistake. Id. at ¶¶ 66, 71-72,
78-82, 86-90, 91-99. Mrs. Friedman died on
October 31, 2014, never having recovered from the
adverse effects of the Mirapex. Id. at ¶¶ 110-118.
[Appellant]’s complaint also advances claim[s]
on his own behalf. He asserts claims of negligent
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and intentional infliction of emotional distress
stemming from the impact on him of discovering the
medical error and, upon his own research, learning
of the harmful and irreversible effects of Mirapex on
his wife. Id. at ¶¶ [sic]. Specifically, he alleges that
he was the primary person responsible for all of
Mrs. Friedman’s care, on a 24-hour basis and
“wherever he was.” Id. at ¶ 22, 24 (emphasis in
original). He alleges that it was foreseeable that he,
as Mrs. Friedman’s personal physician and husband,
would “sometime and someplace” learn of
defendants’ negligence and that he would, “at that
time and place, become emotionally distressed.”
Id. at 29-30 (emphasis added). When he learned
that Mrs. Friedman was receiving Mirapex instead of
Miralax, [appellant] went to the Scott Memorial
Library of Thomas Jefferson University in
Philadelphia. Id. at ¶ 60. It was there, at the
library that [appellant] “suddenly and without
warning became emotionally distressed” upon
learning that Mirapex could cause and did cause
significant and irreversible harm to his wife’s nervous
system. Id. at ¶¶ 62-64, 69, 76, 84. His emotional
distress was aggravated by the overwhelming sense
of guilt and inadequacy he experienced because he
was his wife’s physician. Id. at ¶ 65. He alleges
that as a result of the defendants’ negligence he was
himself hospitalized for stroke on May 31, 2013. He
also experienced aggravated distress when
witnessing defendants’ on-going negligence
regarding his wife while they both were admitted for
care at Devon Manor from June of 2013 until
August 12, 2013, when they were both discharged.
Id. at ¶¶ 126-30, 136.
Trial court opinion, 1/5/16 at 1-3 (footnote omitted; emphasis in original).
On July 22, 2015, the trial court granted appellees’ motion for change
of venue and transferred the case to Chester County. This timely appeal
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followed.2 Appellant has complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and the trial court has filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
Did the Court of Common Pleas err in changing the
venue from Philadelphia, where [appellant], as
a [sic] individual, suffered emotional distress in
learning that his wife and patient had been given the
wrong medicine?
Appellant’s brief at 4.
If there is any basis to affirm a trial court’s decision
to transfer venue, the decision must stand.
Moreover, the standard of review is one of abuse of
discretion. An abuse of discretion is shown by a
record of misapplication of the law, or judgment that
is manifestly unreasonable, or motivated by
partiality, prejudice, bias, or ill-will.
Peters v. Sidorov, 855 A.2d 894, 896 (Pa.Super. 2004), quoting Kring v.
Univ. of Pittsburgh, 829 A.2d 673, 675 (Pa.Super. 2003), appeal denied,
844 A.2d 553 (Pa. 2004) (citations omitted).
Although Mrs. Friedman was allegedly administered the wrong
medication in Chester County, appellant claims that venue is proper in
Philadelphia County because that is where he learned of the mistake.
According to appellant, “the cause of action arose in Philadelphia County,
with the emotional intensity of his sudden discovery that the perversion of
2
Although interlocutory in nature, the order transferring the action to
Chester County is appealable as of right pursuant to Pa.R.A.P. 311(c).
Vogel v. Nat’l R.R. Passenger Corp., 536 A.2d 422, 424 n.3 (Pa.Super.
1988).
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his medical orders was causing his wife and patient, Gail Friedman’s medical
deterioration.” (Appellant’s brief at 12 (emphasis in original).) We disagree.
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.[Footnote 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.1).
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 have
been provided. (Emphasis supplied.)
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[Footnote 2] Medical Care Availability and Reduction
of Error (MCARE) Act, 40 P.S. §§ 1303.101, et seq.
This act reformulates many rules and procedures
regarding the provision of medical care and medical
negligence lawsuits. In addition to those sections
found in Title 40, MCARE also amends various
sections of Titles 35 and 42.
Olshan v. Tenet Health Sys. City Ave., LLC, 849 A.2d 1214, 1216
(Pa.Super. 2004), appeal denied, 864 A.2d 530 (Pa. 2004). The MCARE
Act defines “health care provider” as:
A primary health care center or a person, including a
corporation, university or other educational
institution 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 except, as to section 711(a),
an officer, employee or agent of any of them acting
in the course and scope of employment.
40 P.S. § 1303.103 (footnote omitted). It is not disputed that Devon Manor
is a “health care provider” within the meaning of the MCARE Act.
In Olshan, the underlying claim was that after a mammogram was
taken and read in Montgomery County, a cancerous lesion was overlooked,
resulting in a much more serious cancer when ultimately diagnosed, and
thereby reducing the plaintiff’s chance for survival. The plaintiff initiated the
action in Philadelphia County. 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
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corporate liability in failing to retain competent physicians, inadequate rules
and policies, and failure of supervision. Olshan, 849 A.2d at 1215.
This court held in Olshan that no health care services were
“furnished” to the plaintiff in Philadelphia. All of her treatment took place in
Montgomery County. Id. at 1216. Therefore, since all the medical care was
“furnished” to the plaintiff in Montgomery County, the cause of action arose
in Montgomery County and venue was not proper in Philadelphia County.
Similarly, here, although Heartland Pharmacy in Lehigh County
supplied the drugs and HCR Manor Care in Ohio is the corporate parent of
Devon Manor, the drugs were administered to Mrs. Friedman at Devon
Manor in Chester County. Appellant alleges that the Devon Manor nurse
who transmitted the medication order to Heartland Pharmacy mistakenly
entered “Mirapex” into the computer system instead of “Miralax.”
(Appellant’s brief at 8.) When the nurse received the container labeled
“Mirapex,” she simply assumed it must be a generic for Miralax. (Id.)
Mrs. Friedman then ingested the allegedly mislabeled drugs in Chester
County, and that is where the cause of action arose. 3 This court in Olshan
described a similar scenario:
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
3
Although appellant also alleges Heartland Pharmacy was negligent in not
detecting Devon Manor’s error, there is no allegation that the off-site
pharmacy is a “health care provider” within the meaning of the MCARE Act
or that it provided medical treatment to Mrs. Friedman.
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to patients, and a patient in a [sic] 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.
Olshan, 849 A.2d at 1216 (emphasis in original).
Appellant argues that because he allegedly learned of the mistake at
the medical library in Philadelphia while researching Mrs. Friedman’s
symptoms, suffering sudden and severe emotional trauma, venue is proper
in Philadelphia.4 The location where appellant purportedly learned that
Mrs. Friedman was given Mirapex instead of Miralax is not controlling for
venue purposes. As discussed above, the operative inquiry is where
Mrs. Friedman was furnished medical treatment, which was at Devon Manor
in Chester County. That is where she ingested the drugs and where the
alleged injuries occurred. Furthermore, the fact that appellant asserted
additional claims, including negligent and intentional infliction of emotional
distress, does not change the calculus.
Pa.R.Civ.P. 1006(f)(2) and the comment provide:
Except as otherwise provided by subdivision (c), if
one or more of the causes of action stated against
the same defendant is a medical professional liability
claim, the action shall be brought in a county
required by subdivision (a.1).
Pa.R.Civ.P. 1006(f)(2).
4
Appellant also brought claims for loss of consortium, negligent infliction of
emotional distress, and intentional infliction of emotional distress.
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Multiple Causes of Action
Subdivision (f) of Rule 1006 provides that where
more than one cause of action is asserted against
the same defendant pursuant to Rule 1020(a), venue
as to one cause of action constitutes venue as to all
causes of action. In an action in which there are
asserted multiple causes of action but only one is a
claim for medical professional liability, the
application of this provision could frustrate
Section 5101.1 and result in an action being brought
in a county other than the county in which the cause
of action for medical professional liability arose. New
subdivision (f)(2) limits venue in such cases to the
county required by new subdivision (a.1), e.g., the
county in which the cause of action for medical
professional liability arose.
Pa.R.Civ.P. 1006, EXPLANATORY COMMENT--JAN. 27, 2003.
For these reasons, the trial court did not abuse its discretion in
granting appellees’ motion to transfer where venue clearly lay in Chester
County, as that is where the cause of action arose.5
5
As described above, appellant brought numerous claims against three
different defendants including Heartland Pharmacy based in Lehigh County.
However, Rule 1006 is clear that where one of the defendants is a health
care provider (Devon Manor), venue is only proper in the county where that
defendant provided treatment (Chester). See Pa.R.Civ.P. 1006(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).”); see also EXPLANATORY
COMMENT--JAN. 27, 2003 (“[S]ubdivision (c)(2) does not allow an action to
enforce a joint and several liability to be brought against a health care
provider in a county in which venue may be laid against a defendant that is
not a health care provider. Therefore, an action to enforce a joint and
several liability against Health Care Provider A that provided treatment in
County 1 and against a product manufacturer that does business in County 2
may be brought only in County 1.”).
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Finally, we briefly address appellees Devon Manor and HCR Manor
Care’s request for counsel fees under Pa.R.A.P. 2744.6 Appellees insist that
the instant appeal is frivolous, without any basis in law or fact, and that they
are entitled to reasonable attorneys’ fees.
Our Court may award a reasonable counsel fee and
damages for delay if we determine that an appeal is:
. . . frivolous or taken solely for delay or
that the conduct of the participant
against whom costs are to be imposed is
dilatory, obdurate or vexatious. The
appellate court may remand the case to
the trial court to determine the amount
of damages authorized by this rule.
Pa.R.A.P. 2744. Moreover, an appeal is “frivolous” if
the appellate court determines that the appeal lacks
any basis in law or in fact.
Gargano v. Terminix Intern. Co., L.P., 784 A.2d 188, 195 (Pa.Super.
2001), citing Thunberg v. Strause, 682 A.2d 295, 302 (Pa. 1996).
In determining the propriety of such an award, we
are ever guided by the principle that an appeal is not
frivolous simply because it lacks merit. Rather, it
must be found that the appeal has no basis in law or
fact. This high standard is imposed in order to avoid
discouraging litigants from bringing appeals for fear
of being wrongfully sanctioned.
Griffith v. Kirsch, 886 A.2d 249, 255-256 (Pa.Super. 2005), quoting
Menna v. St. Agnes Medical Center, 690 A.2d 299, 304 (Pa.Super. 1997)
(citations omitted).
6
Appellee Heartland Pharmacy filed a separate brief and did not request
counsel fees.
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We find that while appellant’s appeal lacks merit and the trial court did
not err in transferring this case to Chester County, it is not wholly frivolous
to a degree that attorneys’ fees are warranted. Appellant does make the
argument that as Mrs. Friedman’s physician, he had a duty of care to his
patient which was “interfered with and perverted” by Devon Manor’s
negligent acts. (Appellant’s reply brief at 1-2.) He then argues that his
particular cause of action arose in Philadelphia where he first perceived the
nature of Mrs. Friedman’s injuries. The argument is surely meritless but not
necessarily without “any basis in law or fact.” As such, we decline to grant
attorneys’ fees.
Order affirmed.7
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
7
Appellee Heartland Pharmacy devotes a significant portion of its brief to
explaining why appellant’s claims are without merit, particularly his claims
for negligent and intentional infliction of emotional distress. (Heartland
Pharmacy’s brief at 12-15.) However, the merits of the underlying claims
are not before this court for review on this interlocutory appeal from an
order granting a change of venue.
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