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Not one of Pennsylvania’s 67 counties is a proper venue for a New Jersey resident to sue for medical malpractice allegedly committed in New Jersey, even if a defendant is based in Pennsylvania. A Philadelphia judge has dismissed a plaintiff’s suit by dint of a new venue rule adopted by the Pennsylvania Supreme Court, requiring that suits be filed where the alleged malpractice occurred. The plaintiff argued that the rule was designed to reduce forum shopping only among Pennsylvania’s counties � not to prevent plaintiffs from bringing suit in the state. But Common Pleas Judge Marlene Lachman found that the plaintiff’s theory, if adopted, would mean that a New Jersey patient who obtained medical treatment in his home state could bring a medical malpractice action against the health care provider in any county in Pennsylvania in which the defendant conducts business or could be served. Conversely, a patient who was treated in Pennsylvania would be limited to filing suit in the Pennsylvania county where treatment occurred. Lachman found it was “unlikely that the Pennsylvania Supreme Court (or the Pennsylvania Legislature) intended to extend greater rights to out-of-state consumers of health care services than are extended to those seeking health care services within this commonwealth.” The suit, Noel v. Doolin, was filed in December 2002 on behalf of a brain-damaged toddler against several hospitals, doctors and health professional agencies. Some, such as Cooper University Hospital, are principally located in New Jersey, and others, such as the Children’s Hospital of Philadelphia, in Pennsylvania, according to court documents. Plaintiff’s lawyers Leon Aussprung III and Shanin Specter, of Philadelphia’s Kline & Specter, argued that since all the defendants in the case conduct business in Philadelphia, general jurisdiction is in Pennsylvania and so Philadelphia venue is proper. Several defendants filed preliminary objections, arguing lack of jurisdiction and lack of venue. They argued that under Pennsylvania’s new venue rule, there is no proper county in Pennsylvania in which to file the case because the alleged malpractice occurred outside the state. Lawrence Engrissei, the lawyer for a defendant based in New Jersey, says his client conducts all business in that state. “The plaintiff doesn’t allege we did anything in Pennsylvania or that anything we did had an impact in Pennsylvania,” says Engrissei, counsel for Loving Care Agency Inc., a home nursing service. “For Pennsylvania to have jurisdiction, we have to have had some sort of contact with the state relating to the incident they allege. My clients don’t have that contact.” Engrissei says that other defendants who filed preliminary objections also lacked the appropriate connection to Pennsylvania. “The alleged incident took place in New Jersey, so the legal issues in the case would be determined under New Jersey law anyway. A New Jersey judge and jury should decide them,” he says. The plaintiff’s attorneys claim the defendants’ interpretation of the venue rule would subvert the rule’s intention. The rule was adopted in response to a law enacted by the Legislature to reform medical malpractice litigation in Pennsylvania by reducing doctors’ insurance rates, Aussprung and Specter explain in their brief. The defendants’ interpretation of the rule would encourage Pennsylvania doctors with offices in Philadelphia to avoid Pennsylvania jurisdiction by crossing the river to practice in New Jersey. “We don’t believe the Supreme Court or the Legislature intended to divest their authority over a corporation or resident of Pennsylvania who does bad things in another state,” Aussprung says. “Those institutions and physicians remain the commonwealth’s responsibility.” Lachman made her decision based on the venue argument and didn’t discuss the defendants’ objection to jurisdiction. Lachman said that the plaintiff’s theory, if adopted, would also mean that doctors who practice in both states couldn’t limit liability by doing certain procedures in New Jersey only and would require them to leave the state entirely to avoid exposure. “Plaintiff’s analysis would lead to the conclusion that the Pennsylvania Supreme Court intended to extend out-of-state patients multiple choices of fora, and to limit Pennsylvania patients to the one county in which the malpractice arose,” Lachman wrote. It’s improbable this was the Supreme Court’s intention, the judge concluded. Aussprung points to a Northampton County trial court’s decision in Searles v. Estrada last June. Judge Jack Panella said that, under the new venue rule, Pennsylvania was the proper venue for a malpractice suit involving parties from Pennsylvania even when the alleged malpractice occurred in New Jersey. Panella said that venue rules must be subsidiary to principles of jurisdiction. “Venue, unlike jurisdiction, is a matter of procedure, and not substance, and is therefore within the competency of a procedural rule,” Panella wrote. “‘Jurisdiction,’ on the other hand, is the legal right by which judges exercise their authority to have an action brought and heard in a particular judicial district and is related to convenience of the litigants.” While the venue rule requires a suit to be brought in the county in which the “transaction or occurrence” arose, no such Pennsylvania county existed in Searles, Panella concluded. Because the court lacked authority to dismiss the case under the venue rule, the judge refused to uphold the defendants’ preliminary objections. This article first appeared in The Legal Intelligencer , the Law Journal ‘s sister newspaper in Philadelphia.

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