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Interpreting recently amended civil procedure rules for venue, a Philadelphia judge has ruled that a plaintiff must bring a medical malpractice claim in the county where the alleged negligence occurred and not in Philadelphia where the alleged injury was manifested. Common Pleas Judge Howland W. Abramson found that a Montgomery County venue was proper in Riggio v. Katzbecause “all the alleged acts of medical malpractice occurred in Mont-gomery County, and the plaintiff’s injury occurred simultaneously with the alleged acts of malpractice.” Even if a Philadelphia woman’s injuries had not occurred simultaneously with the alleged negligence and occurred in a county other than Montgomery, the cause of action still arises where the alleged malpractice occurs and not where the plaintiff’s injury occurred, Abramson wrote in his Oct. 15 opinion. “[T]he purpose of the new venue rule for medical malpractice claims promulgated by the Pennsylvania Supreme Court would be frustrated if health care providers could be hauled into forums with which they have no contacts,” he wrote. Rule 1006 (a)(1) was amended in January by the Supreme Court to state, “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.” The amendment was made in light of a venue provision included in the Medical Care Availability and Reduction of Error law that was enacted in 2002 to reform medical professional liability in Pennsylvania. In this case, Margaret Riggio of Philadelphia was admitted to the emergency room at Elkins Park Hospital in Montgomery County in March 2001 after she experienced three days worth of diarrhea, vomiting and nausea. Riggio claims that three doctors who cared for her there failed to correctly interpret her laboratory test results. As a result, her staphylococcus infection went untreated and later developed into more serious ailments, according to the opinion. Two days after she was discharged from Elkins Park, she was back in the hospital, this time in Philadelphia, according to the opinion. When Riggio filed a complaint in November 2002, the venue rule change had not yet taken effect. Lawyers for one of the defendants in the suit, Elkins Park Hospital, filed to transfer the venue after the rule was amended in January of this year, according to Jason Daria, one of Riggio’s attorneys. Daria objected, arguing that his client’s injuries occurred both at her home in Philadelphia and at the Philadelphia hospital and that it was proper to file there. “You wouldn’t have a cause of action without the injury,” said Daria of Litvin Blumberg Matusow & Young. In addition, the defendant doctors failed to treat Riggio with antibiotics that she would have taken at home in Philadelphia, Daria said. This omission, which occurred in Philadelphia, is part of the negligence Riggio is claiming, he said. “You need both the negligence and the injury, which gives rise to the cause of action,” Daria said. The hospital’s lawyer, Timothy McCann, of McCann & Geschky, argued that the case should be heard where the treatment was provided. Abramson found that Riggio’s injury had started in Montgomery County. “The injury was an infection that went untreated,” Abramson wrote. “To say that the injury occurred in a place or in Philadelphia is a fiction where the matter at hand is an infection, and therefore, a process. The process of infection existed and proceeded at the time the infection allegedly went untreated.” So the injury began when the doctors allegedly failed to properly treat the infection, Abramson said. The judge dismissed Riggio’s argument that the Supreme Court’s 1940 decision in Openbrier v. General Mills Inc.should apply. That decision turned on the language of a statute that permitted the plaintiff to bring suit in the county where a “right of action” arose. Openbriershould not control this decision, Abramson said. In interpreting procedural rules set by the state Supreme Court, courts are called to “ascertain and effectuate” the intention of the court, evaluating the occasion and necessity for the rule, the circumstances under which the rule was developed, the problem it aims to remedy, and the object to be attained, Abramson explained. The issue of where a plaintiff may file suit is an “integral component” of the state’s policy in the recent reform of medical malpractice, he wrote. “The MCARE Act states as a declaration of policy that ‘recent changes in the health care delivery system have necessitated a revamping of the corporate structure for various medical facilities and hospitals’ across Pennsylvania that has ‘unduly expanded the reach and scope of existing venue rules,’” the judge wrote. Also, a member of the Commission on Venue established by the MCARE Act recommended the restriction of venue to a county where the cause of action arose. “This statement is a clear expression that venue should not be permitted in a county in which the physician did not provide medical care,” Abramson said. It would be unreasonable if the phrase “cause of action arose” meant “where the harm manifests itself,” Abramson said. “For example, if a physician is alleged to be negligent in prescribing a certain medication . . . the harm will occur where the medication is taken,” he wrote. “That place could be far from the county in which the physician prescribed the medication and far from the county where the patient lives.” Abramson also noted a decision by the Superior Court in Sunderland v. R.A. Barlow Homebuilders, a case of first impression for which the Pennsylvania Supreme Court heard oral arguments on Monday. Sunderlandis not a malpractice case, but the issue is whether a wrongful-death claim should be brought in Montgomery County, where the alleged wrongful act occurred, or in Philadelphia County, where the woman died. Justice Russell M. Nigro indicated during arguments that the proper venue for a malpractice claim would be the county in which the negligence occurred because it would be an “intervening action” between the alleged injury and the resulting death. Nigro presented a hypothetical scenario. “Say it was a Delaware County accident and the malpractice occurs in Philadelphia,” he said. “I can understand the malpractice [case] should be in Philadelphia. But if there was no intervening malpractice action, why shouldn’t it be held in Delaware?” Riggio’s lawyers have appealed Abramson’s decision to the Superior Court. Daria said that the Sunderlandcase is distinguishable from his client’s case because it deals with a wrongful death claim and not medical negligence. (Copies of the 14-page opinion inRiggio v. Katz , PICS No.03-1675, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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