Pa. Superior Court: Phila. judge correct to transfer med mal case to Montco

A Pennsylvania appellate court panel has affirmed a decision by a Philadelphia judge to

transfer a medical malpractice case from the city’s Common Pleas Court to state court in neighboring Montgomery County.

The three-judge Superior Court panel upheld a Feb. 6 order by Philadelphia Common Pleas Court Judge Mark I. Bernstein that sustained preliminary objections by the defendants and transferred the case to the Montgomery County Court of Common Pleas.

The complaint had been initiated in the fall of 2011 by Warrington, Pa. couple Joanne and Charles Fratz against dentist Jack Gorin and doctor Jeffrey Perlson over allegations that Joanne Fratz sustained severe injuries and ended up having to have her fingers and toes partially amputated due to poor medical care.

According to the plaintiffs’ complaint, Gorin, a Philadelphia dentist, was negligent in performing Joanne’s dental procedures and the remaining defendants, which included Abington Hospital, were negligent in failing to properly diagnose and treat her conditions.

The record shows that following her dental care, Gorin failed to prescribe Joanne with prophylactic antibiotics, and that the woman subsequently developed a fever and ultimately contracted bacterial endocarditis, ventilator-dependent respiratory failure, bilateral pneumonia, anemia and sepsis.

Joanne ended up undergoing cardiothoracic surgery at Temple University Hospital in Philadelphia, where she experienced severe renal failure, melena indicative of a gastrointestinal hemorrhage, and extremity ischemia, her complaint states.

Furthermore, Joanne was diagnosed with hypercapnia, she developed further infection, and she had to have most of her toes and parts of two of her fingers amputated in early June 2010.

In addition to Gorin, Perlson and Abington Memorial, the other defendants initially listed in the lawsuit were Bi-County Medical Associates Inc., Abington Memorial Hospital Physician Network, and Abington Physicians Group Inc.

Gorin is based in Philadelphia, Perlson is located in Bucks County, and the rest of the defendants are Montgomery County-based.

Following the lawsuit’s filing, the defendants filed preliminary objections, claiming venue was improper in Philadelphia under Pennsylvania’s Medical Care Availability and Reduction of Error Act, and that venue was proper in Montgomery County because that was the site of the alleged malpractice.

The plaintiffs, however, appealed the decision, arguing that the lower court abused its discretion in transferring venue and declining to consolidate the two actions in Philadelphia County; the record shows that a second suit was filed in Philadelphia the following month by the plaintiffs against Temple Hospital and related entities, all of which are Philadelphia-based.

In its decision, the Superior Court panel wrote that the MCARE Act applies only to medical professional liability actions against healthcare providers, and not to other professional liability actions or actions against non-physician healthcare providers.

The panel noted that Bernstein, the Philadelphia judge, had correctly concluded that “when an MCARE health care provider [Abington Hospital defendants] and a non-covered defendant [Dr. Gorin] are joined in the same action, the plaintiff must be sued in a venue where the MCARE provider can be sued [Montgomery County] in order to bring a cause of action against both defendants.”

Bernstein’s comments came out of his June 8, 2012 order.

Bernstein had also noted that an action to enforce joint and several liability “against two or more health care providers may be brought in any county in which venue may be laid against at least one of the health care providers[.]”

The Superior Court panel also pointed out that dentists, although licensed professionals, are not considered healthcare providers under the MCARE Act.

“Judge Bernstein concluded that since the Fratzes pled joint and several liability, and the qualified or covered MCARE health provider defendants (Abington Hospital defendants) are located in Montgomery County, venue is proper in Montgomery County,” the appellate ruling states. “We find no abuse of discretion.”

The decision was written by Judge Anne E. Lazarus.

Joining her was Judge Paula Francisco Ott and Senior Judge Eugene B. Strassburger, III.