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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.)
J. A19001/16


          [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


                                  -2-
J. A19001/16


            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




                                     -3-
J. A19001/16


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).


                                      -4-
J. A19001/16


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.)


                                     -5-
J. A19001/16




            [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



                                      -6-
J. A19001/16


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.


                                      -7-
J. A19001/16


            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.


                                    -8-
J. A19001/16


            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.”).


                                      -9-
J. A19001/16


      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.


                                     - 10 -
J. A19001/16


      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.


                                     - 11 -
