Showell, Z. v. Abington Memorial Hosp. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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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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