J-A08039-17

                                  2017 PA Super 233


    MAXAMOR WENTZEL, A MINOR, BY     :         IN THE SUPERIOR COURT OF
    HIS PARENT AND NATURAL           :              PENNSYLVANIA
    GUARDIAN CHARISMA WENTZEL,       :
    AND CHARISMA WENTZEL, IN HER     :
    OWN RIGHT                        :
                                     :
                                     :
              v.                     :
                                     :         No. 1159 EDA 2016
                                     :
    DOMINIC CAMMARANO, III, D.O.;    :
    READING HEALTH PHYSICIAN         :
    NETWORK; READING OB/GYN, P.C.,   :
    READING OB/GYN & WOMEN'S         :
    BIRTH CENTER, LLC; READING       :
    HOSPITAL; READING HEALTH         :
    SYSTEM; ALL ABOUT CHILDREN       :
    PEDIATRIC PARTNERS, P.C.; TENET  :
    HEALTH SYSTEM; ST.               :
    CHRISTOPHER'S HOSPITAL FOR       :
    CHILDREN, LLC; ST. CHRISTOPHER'S :
    HOSPITAL FOR CHILDREN; HEART     :
    CENTER FOR CHILDREN AND          :
    ALLEGHENY INTEGRATED HEALTH      :
    GROUP                            :
                                     :
                                     :
    APPEAL OF: CHARISMA WENTZEL,     :
    INDIVIDUALLY IN HER OWN RIGHT,   :
    AND AS PARENT AND NATURAL        :
    GUARDIAN OF MAXAMOR WENTZEL

                 Appeal from the Order Entered March 24, 2016
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): No. 4185 August Term, 2015


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A08039-17



OPINION BY STEVENS, P.J.E.:                            FILED JULY 19, 2017

      Maximor Wentzel (“Maximor”), a minor, by his parent and natural

guardian, Charisma Wentzel, and Charisma Wentzel in her own right

(“Appellants”), appeal from the order entered in the Court of Common Pleas

of Philadelphia County sustaining preliminary objections to venue and

transferring the action to Berks County. We vacate the order and remand

for proceedings consistent with this decision.

      This medical malpractice action arises from, inter alia, the allegedly

negligent failure of Philadelphia’s St. Christopher’s Hospital (“SCHC”) and its

resident cardiologist Dr. Lindsay Rogers to timely transmit her diagnosis and

treatment plan for Maximor based on her reading of an emergency

transthoracic echocardiogram performed on the premature newborn, who

was receiving neonatal intensive care at Reading Hospital, Berks County.

Dr. Rogers’ diagnosis was pulmonary hypertension requiring immediate

treatment or intervention, which she recommended SCHC should provide.

      Appellants alleged in their complaint that the resultant one-day delay

in putting Dr. Rogers’ treatment plan into effect amounted to the negligent

provision of health care services causing harm to Maximor. The trial court,

however,   sustained    Appellees’   preliminary   objections   to   venue   in

Philadelphia County and transferred the matter to Berks County, as it

rejected Appellants’ argument that transmission of Dr. Rogers’ impressions,

diagnoses, and treatment plan for immediate transfer to SCHC constituted

the furnishing of “health care services” as defined under both the MCARE

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J-A08039-17



Act1   and     Pennsylvania     Rules    of    Civil   Procedure   implementing   such

legislation.     Instead, the court agreed with Appellees’ position that

Appellants’ complaint was predicated on an allegation of mere clerical error

falling outside the ambit of such controlling authority.

       The trial court aptly provides a more detailed account of the case

history pertinent to the issue before us:

       This matter was instituted by Complaint on September 1, 2015.
       [Appellants] brought this medical professional liability action
       against [Appellees], alleging professional liability claims against
       all Appellees, as well as direct corporate negligence claims as to
       the Reading facilities and St. Christopher’s.

       Appellant, Christina Wentzel, underwent prenatal care with Dr.
       Cammarano and the Reading Appellees. See, Complaint at ¶ 28.
       Appellant’s obstetrical history of having a prior child with
       Intrauterine Growth [Restriction] (“IUGR”) and prior pre-term
       delivery at 32 weeks with low amniotic fluid was disclosed at the
       start of Appellant’s treatment. ¶ 29. Appellant’s initial prenatal
       appointment of May 9, 2013, noted Ms. Wentzel to be 17 5/7
       weeks gestation per her last menstrual cycle. Appellant was
       given an estimated due date of October 12, 2013. ¶ 31.

       Appellee, Cammarano, performed a prenatal ultrasound at 20
       6/7 weeks gestation (based upon Appellant’s last menstrual
       period) which noted normal amniotic fluid and a calculated
       gestational age of 18 5/7 weeks. ¶ 33. No change was made
       to note the difference in Appellant’s gestational age. ¶ 35. Dr.
       Cammarano performed prenatal ultrasounds again in July, 2013
____________________________________________


1
  The Medical Care Availability and Reduction of Error (“MCARE”) Act of
March 20, 2002, P.L. 154, as amended, 40 P.S. § 1303.101–1303.910,
replaced its predecessor, the Health Care Services Malpractice Act
(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 § 101 et seq., as
amended, 40 P.S. § 1301.101 et seq.




                                           -3-
J-A08039-17


     and August, 2013. Each visit indicated a difference in her
     gestational age. ¶ 36-37. Appellant’s next prenatal ultrasound
     on September 10, 2013, indicated a decreased amniotic fluid
     level, the fetus was in the breech position, and oligohydramnios
     was diagnosed. ¶ 40. Appellant was admitted to Reading
     Hospital for an emergency caesarean section delivery. ¶ 43.

     Shortly after birth on September 10, 2013, the child was
     transferred to the Neonatal Intensive Care Unit (“NICU”). ¶ 48.
     The child continued to suffer from serious respiratory distress
     requiring intubation and ventilation treatment. ¶ 49-54.

     On September 12, 2013, a transthoracic echocardiogram was
     performed at Reading Hospital at approximately 12:41 p.m. ¶
     56.    The echocardiogram report was sent to Appellee, St.
     Christopher’s for interpretation.  ¶ 57.    The report was
     interpreted and signed by Dr. Lindsay Rogers at St.
     Christopher’s.   The report was signed at 5:39 p.m. on
     September 12, 2013. ¶ 59. The report indicated pulmonary
     hypertension and tricuspid valve insufficiency requiring
     immediate treatment. ¶ 60.

     The report was transmitted back to Reading Hospital from St.
     Christopher’s on September 13, 2013, at 8:40 p.m. ¶ 62. At this
     point, the child had persistent pulmonary hypertension, and
     began receiving advanced respiratory treatments.

     On September 14, 2013, the child was transported from Reading
     Hospital to St. Christopher’s with [ ] final diagno[ses] of
     persistent pulmonary hypertension of newborn, respiratory
     distress [syndrome] and preterm infant. St. Christopher’s noted
     the child to be symmetrically small for gestational age with
     feeding difficulties. ¶¶ 71, 73.

     The child was transferred from St. Christopher’s back to Reading
     Hospital on October 7, 2013, where he remained until November
     18, 2013. ¶76. During this time, the child was noted to have
     serious respiratory issues, feeding difficulties, gastroesophageal
     reflux and failure to thrive. The child was again transferred from
     Reading Hospital to St. Christopher’s on November 18, 2013. ¶¶
     77-78.

     During the child’s second admission to St. Christopher’s, a CT
     scan revealed an old, healing rib fracture first seen on November

                                   -4-
J-A08039-17


      15, 2013, while the child was a patient at Reading Hospital. ¶
      80.   Appellants allege the fracture could have occurred at
      Reading Hospital during the September 10 – September 14,
      2013, stay; St. Christopher’s during the September 14 – October
      7, 2013, stay; or at Reading Hospital during the October 7 –
      November 18, 2013, stay. ¶ 81. The child was then transferred
      to Hershey Medical Center (not a party to this action) where he
      remained until May 13, 2014. ¶82.

      The Reading Appellees filed Preliminary Objections to Appellants’
      Complaint raising, inter alia, improper venue pursuant to
      Pa.R.C.P. 1006(a.1).[]     Specifically, Appellees argued the
      Appellants failed to raise any allegations of professional
      negligence stemming from medical care furnished to the child in
      Philadelphia County while at St. Christopher’s. [The trial court]
      scheduled an argument and evidentiary hearing regarding the
      objection to venue, after which the Preliminary Objections were
      sustained, and this matter was transferred to Berks County.
      This appeal followed.

Trial Court Opinion, filed 8/18/16, at 1-4.

      Appellant appealed and presents the following question for our review:

      I.    DID THE TRIAL COURT ERR IN SUSTAINING THE
            PRELIMINARY     OBJECTION    OF     DOMINIC
            CAMMARANO,    III,  D.O., READING    HEALTH
            PHYSICIAN NETWORK, READING OB/GYN BIRTH &
            WOMEN’S CENTER, LLC, READING HOSPITAL AND
            READING HEALTH SYSTEM WITH REGARD TO VENUE
            AND TRANSFERRING THIS MATEER [SIC] TO BERKS
            COUNTY?

Appellant’s brief at 5.

             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 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.



                                       -5-
J-A08039-17



Act1   and     Pennsylvania     Rules    of    Civil   Procedure   implementing   such

legislation.     Instead, the court agreed with Appellees’ position that

Appellants’ complaint was predicated on an allegation of mere clerical error

falling outside the ambit of such controlling authority.

       The trial court aptly provides a more detailed account of the case

history pertinent to the issue before us:

       This matter was instituted by Complaint on September 1, 2015.
       [Appellants] brought this medical professional liability action
       against [Appellees], alleging professional liability claims against
       all Appellees, as well as direct corporate negligence claims as to
       the Reading facilities and St. Christopher’s.

       Appellant, Christina Wentzel, underwent prenatal care with Dr.
       Cammarano and the Reading Appellees. See, Complaint at ¶ 28.
       Appellant’s obstetrical history of having a prior child with
       Intrauterine Growth [Restriction] (“IUGR”) and prior pre-term
       delivery at 32 weeks with low amniotic fluid was disclosed at the
       start of Appellant’s treatment. ¶ 29. Appellant’s initial prenatal
       appointment of May 9, 2013, noted Ms. Wentzel to be 17 5/7
       weeks gestation per her last menstrual cycle. Appellant was
       given an estimated due date of October 12, 2013. ¶ 31.

       Appellee, Cammarano, performed a prenatal ultrasound at 20
       6/7 weeks gestation (based upon Appellant’s last menstrual
       period) which noted normal amniotic fluid and a calculated
       gestational age of 18 5/7 weeks. ¶ 33. No change was made
       to note the difference in Appellant’s gestational age. ¶ 35. Dr.
       Cammarano performed prenatal ultrasounds again in July, 2013
____________________________________________


1
  The Medical Care Availability and Reduction of Error (“MCARE”) Act of
March 20, 2002, P.L. 154, as amended, 40 P.S. § 1303.101–1303.910,
replaced its predecessor, the Health Care Services Malpractice Act
(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 § 101 et seq., as
amended, 40 P.S. § 1301.101 et seq.




                                           -3-
J-A08039-17



where Reading Doctors were clearly awaiting her guidance, and the delay in

treatment that resulted, were acts of professional negligence from which the

cause of action arose, the complaint maintained, and such acts occurred in

Philadelphia.

      In their preliminary objections, however, Appellees argued first that

the complaint alleged merely clerical or ministerial, rather than professional,

negligence with respect to the actions of Dr. Rogers and the support staff of

St. Christopher’s, and the trial court agreed.

      Herein, Appellants contend that the alleged negligence consists of the

denial of health care services that should have been delivered to a patient in

immediate need of such services.             Such a denial transcends mere clerical

negligence as found by the trial court, Appellants argue, as SCHC and the

other named corporate affiliates denied Maximor necessary treatment when

                       _______________________
(Footnote Continued)

      echocardiogram         to   the    physicians   at   Defendant   Reading
      Hospital;

      Failing to timely and/or properly make treatment and/or transfer
      recommendations to the physicians at Defendant Reading
      Hospital based upon the September 12, 2013 echocardiogram;
      and

      Failing to timely provide treatment and/or intervention, including
      medical therapies, ventilation therapies, and/or transfer to
      Defendant SCHC/Tenet/Allegheny, based upon the results of the
      September 12, 2013 echocardiogram.

See Appellants’ Complaint, filed 9/1/15, at ¶¶ 57-62, 129-30, 132-33,
136-37, 139-40.



                                            -7-
J-A08039-17



their agents, Dr. Rogers and St. Christopher’s Hospital staff, failed to deliver

it as reasonably expected.

       We agree that Appellants’ complaint asserting both corporate and

vicarious liability based on the omissions of Dr. Rogers and hospital staff

puts forth a case of medical malpractice against Appellees.          Indeed, in

Rostock v. Anzalone, 904 A.2d 943 (Pa.Super. 2006), this Court held that

a complaint accusing a medical care professional of failure to recommend

appropriate work-up for a patient, to notify a patient of test results, or to

maintain proper patient records made out allegations of professional, not

clerical, failure, as such services strongly imply acts of diagnosis and/or

treatment which may only be provided by a medical professional.          Id. at

946.   Even if the maintenance of patient records were largely clerical, we

continued, the physician, “as the professional charged with supervising

employees in a professional context, would be responsible for their

derelictions under the doctrine of vicarious liability.”   Id.   Relying on the

same rationale expressed in Rostock, we reject the conclusion of the trial

court that Appellants’ complaint alleged merely clerical or ministerial

negligence.    The allegation of errors committed by Dr. Rogers and the

support staff at St. Christopher’s Hospital, causing delay in care to Maximor,

sounded, instead, in medical malpractice.

       Also underpinning the trial court’s transfer of venue, however, was its

conclusion that Dr. Rogers’ alleged negligence occurring on September 12,

2013, occurred before Maximor was in her direct care in Philadelphia. See

                                     -8-
J-A08039-17



Trial Court Opinion, at 11-12.        According to the trial court, a triad of

Superior Court decisions, Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008),

Bilotti –Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005),

and Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214

(Pa.Super. 2004), thus guided its decision to remove the case from

Philadelphia County. We find the trial court’s application of these cases to

the present matter unpersuasive, as our jurisprudence expressed therein

does not support transfer of venue as it occurred here.

      In Bilotti-Kerrick, a patient was admitted to Northampton County’s

Pocono Medical Center with nausea and numbness in her arms.           Doctors

determined she needed immediate cardiac catheterization, which was not

available at PMC.     At 3:00 a.m., they contacted a cardiologist at his

Northampton County home, and he directed them to have her at Lehigh

County’s St. Luke’s Hospital at 6:00 a.m., where he said he would be waiting

at the cardiac catheterization lab.

      Patient was life-flighted to Lehigh County, but her delivery to St.

Luke’s critical care unit instead of the cardiac catheterization lab, coupled

with the cardiologist’s late arrival at 10:15 a.m., pushed back her

catheterization until noon, six hours after the prescribed time.    Two days

and two emergency surgeries later, the patient died.

      Plaintiffs filed suit in Northampton County, but the court sustained

preliminary objections requesting transfer of venue to Lehigh County. This

Court affirmed.

                                       -9-
J-A08039-17



      We held the cause of action, i.e., “the negligent act or omission, as

opposed to the injury which flows from the tortious conduct[,]” arose in

Lehigh County.    All claims of negligence were based on the delay in the

performance of the cardiac catheterization at St. Luke’s, Lehigh County.

Although the cardiologist telephonically accepted the case, ordered transport

of the patient, and arranged a catheterization time from his Northampton

home, the essence of the claim is that he and other defendants committed

oversights and errors in Lehigh County that caused the failure to furnish the

patient with a timely catheterization that he should have received in Lehigh

County.

      Similarly, in the case sub judice, Appellants’ complaint did not dispute

that Dr. Rogers made an appropriate diagnosis and devised a suitable

treatment plan calling for the immediate transfer of Appellant to her care.

Instead, it alleged that she failed to furnish these services to Maximor as

quickly as she, herself, opined was indicated because of her and her staff’s

negligent failure to put the plan into effect in a timely manner.

      Just as the complaint in Bilotti-Kerrick alleged Lehigh County-based

negligence was the cause of delayed implementation of an otherwise

appropriate treatment plan, so, too, did Appellant’s complaint charge Dr.

Rogers and the staff of SCHC with failing to effect timely implementation of a

treatment plan in Philadelphia County.        In each case, the plaintiff sought

venue in the county of the alleged negligent acts and omissions interfering

with the intended provision of health care in that county. Contrary to the

                                     - 10 -
J-A08039-17



trial   court’s   opinion,   therefore,        we    find   Bilotti-Kerrick   to   support

Appellant’s position that venue was proper in Philadelphia.

        Neither does our holding in Olshan support transfer in the present

case.    In Olshan, Montgomery County physicians and facilities performed

and misread plaintiff’s mammogram.                   Plaintiff sued Philadelphia parent

company in Philadelphia County, under theories of both vicarious and

corporate liability. On the defendant’s preliminary objections, the Court of

Common Pleas of Philadelphia transferred venue to Montgomery County.

        This Court affirmed, holding that venue depends upon where “health

care services” were furnished to the patient.                “Nothing was ‘furnished’ to

[the] patient in Philadelphia. All of her treatment (health care services) took

place in Montgomery County[,]” we observed. Id. at 1216.

        Notably, Olshan is factually distinguishable from the present matter,

as the Olshan complaint did not allege that physicians negligently provided

health care services in Philadelphia.               Instead, the complaint alleged that

physician negligence took place where both physician and patient were

situated, in Montgomery County.3
____________________________________________


3
  The Olshan decision also set forth a hypothetical suggesting that the
location where services are furnished is determined by the location of the
patient, not the health care professional:

        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
        Montgomery County received the drug, . . . since the drug was
(Footnote Continued Next Page)


                                          - 11 -
J-A08039-17



their agents, Dr. Rogers and St. Christopher’s Hospital staff, failed to deliver

it as reasonably expected.

       We agree that Appellants’ complaint asserting both corporate and

vicarious liability based on the omissions of Dr. Rogers and hospital staff

puts forth a case of medical malpractice against Appellees.          Indeed, in

Rostock v. Anzalone, 904 A.2d 943 (Pa.Super. 2006), this Court held that

a complaint accusing a medical care professional of failure to recommend

appropriate work-up for a patient, to notify a patient of test results, or to

maintain proper patient records made out allegations of professional, not

clerical, failure, as such services strongly imply acts of diagnosis and/or

treatment which may only be provided by a medical professional.          Id. at

946.   Even if the maintenance of patient records were largely clerical, we

continued, the physician, “as the professional charged with supervising

employees in a professional context, would be responsible for their

derelictions under the doctrine of vicarious liability.”   Id.   Relying on the

same rationale expressed in Rostock, we reject the conclusion of the trial

court that Appellants’ complaint alleged merely clerical or ministerial

negligence.    The allegation of errors committed by Dr. Rogers and the

support staff at St. Christopher’s Hospital, causing delay in care to Maximor,

sounded, instead, in medical malpractice.

       Also underpinning the trial court’s transfer of venue, however, was its

conclusion that Dr. Rogers’ alleged negligence occurring on September 12,

2013, occurred before Maximor was in her direct care in Philadelphia. See

                                     -8-
J-A08039-17



Trial Court Opinion, at 11-12.        According to the trial court, a triad of

Superior Court decisions, Cohen v. Furin, 946 A.2d 125 (Pa.Super. 2008),

Bilotti –Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005),

and Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214

(Pa.Super. 2004), thus guided its decision to remove the case from

Philadelphia County. We find the trial court’s application of these cases to

the present matter unpersuasive, as our jurisprudence expressed therein

does not support transfer of venue as it occurred here.

      In Bilotti-Kerrick, a patient was admitted to Northampton County’s

Pocono Medical Center with nausea and numbness in her arms.           Doctors

determined she needed immediate cardiac catheterization, which was not

available at PMC.     At 3:00 a.m., they contacted a cardiologist at his

Northampton County home, and he directed them to have her at Lehigh

County’s St. Luke’s Hospital at 6:00 a.m., where he said he would be waiting

at the cardiac catheterization lab.

      Patient was life-flighted to Lehigh County, but her delivery to St.

Luke’s critical care unit instead of the cardiac catheterization lab, coupled

with the cardiologist’s late arrival at 10:15 a.m., pushed back her

catheterization until noon, six hours after the prescribed time.    Two days

and two emergency surgeries later, the patient died.

      Plaintiffs filed suit in Northampton County, but the court sustained

preliminary objections requesting transfer of venue to Lehigh County. This

Court affirmed.

                                       -9-
J-A08039-17



physician and patient were in the same location at the time the doctor

prescribed prednisone, its holding nevertheless centers on the location of the

physician’s negligent act in assessing where the cause of action arose under

Rule 1006(a.1).

      In summary, the essence of Appellant’s complaint was that Dr. Rogers

and SCHC failed to furnish Maximor, whom they intended to treat upon his

immediate transfer to SCHC, with the timely care Dr. Rogers indicated he

should receive at SCHC.          As described, Dr. Rogers’ involvement in

Maxamor’s case transcended the mere offer of advice from a remote

location. She was, instead, expected to direct Maximor’s course of care, and

she clearly commenced in that role with her report.       Like in Bilotti and

Cohen, the complaint alleged negligent acts in Philadelphia that deprived

Maximor of the health care services Dr. Rogers indicated he should have in

Philadelphia at a critical time in his case.

      Because the trial court’s rationale for transferring venue to Berks

County was flawed, therefore, we vacate the order transferring venue and

reinstate venue in Philadelphia County.

      Order vacated.     Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

      Judge Panella joins the Opinion.

      Judge Lazarus files a concurring statement.




                                       - 14 -
J-A08039-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




                          - 15 -
