author: LAVELLE, S.J.,

text:
    Trump v. Menegat

      C.P. of Lehigh County,
    no. 2001-C-1568V.

      Anthony S. Beltrami, for plaintiff.

      Georgine Ann Olexa, for defendants.
    November 4, 2002
   LAVELLE, S.J.,

Plaintiff, Carol L. Tramp, executrix of the estate of Grace E. Blose, deceased, instituted the above captioned action against defendants, Joyce K. Menegat R.N. and Lehigh Valley Hospital Inc., trading as Lehigh Valley Hospital and Lehigh Valley Transitional Skilled Unit on June 8,2001. Plaintiff claims damages for personal injuries allegedly sustained by the decedent prior to her death as the result of an alleged fall incident within the Transitional Skilled Unit of the Lehigh Valley Hospital on June 15, 1999. Plaintiff contends that decedent’s fall on that date caused her to sustain a fractured hip.

Before us is a second motion of plaintiff directed to Lehigh Valley Hospital only to compel discovery and to extend the discovery deadline. Hospital has filed a timely response to plaintiff’s motion to compel which squarely raises the issue whether hospital should be obliged to produce a quality assurance review form which defendant contends is privileged and protected from discovery by the Pennsylvania Peer Review Protection Act, 63 PS. §425.1 et seq. Because we believe that this is a fact-driven issue, we directed that a hearing should be held regarding the circumstances of the preparation of the quality assurance review form, the purpose for which it was prepared and the use to which it was put. The hearing was held on September 5,2001, from which we make the following:

FINDINGS OF FACT

(1) An event form and a quality assurance review form are prepared at Lehigh Valley Hospital in the ordinary course of business every time there is an unusual event or incident involving a patient (N.T. 11); they are not made a part of the patient’s record. (N.T. 19.)

(2) The quality assurance review form has marked on it “Risk management”; it is a follow-up form completed by the attending nurse and the supervisor of the Transitional Skilled Unit, containing a narrative description of the event, where it occurred and its effect on the patient (here a fall by the plaintiff which allegedly caused a fracture and is the focus of this malpractice case). (N.T. 6.)

(3) The director of nursing oversees the completion of the QARF and uses the form to analyze and make recommendations regarding the event to improve patient care (N.T. 7); the form looks at the processes, the action, the conclusion and follow-up on whether or not anything needs to be done to change practices, whether or not what was done was appropriate or not and whether any change is needed to improve the quality of patient care. (N.T. 26-27-44.)

(4) Policies of Lehigh Valley Hospital relative to incidents/accident reports and QARFs indicates that a QARF is to be completed and forwarded to risk management (Event report policy, procedure G) and after it receives the form, “a thorough investigation/root cause analysis will be initiated by risk management.” (Event report policy, procedure H.)

(5) After its completion and signing, the director of nursing would send the original QARF to risk management on the Transitional Skilled Unit (N.T. 9); risk management would then send a copy of QARF to the vice president of the quality assurance committee.

(6) Risk management is a joint department made up of both risk management and legal services which share one office share information and work together. (N.T. 22-23.)

(7) Risk management has a dual role: it handles all malpractice claims involving Lehigh Valley Hospital from initiation to disposition (including interrogatory requests and requests for production of documents) and reviews events and incidents “with a goal in mind of prevention and quality of patient care.” (N.T. 21.)

(8) At Lehigh Valley Hospital, the quality assurance committee, also known as a performance improvement committee, is comprised of physicians, administration members and a lawyer from legal services; the purpose of the committee is to review events that have a potential for causing or actually have caused harm to patients.

(9) The original QARF is reviewed in the normal course of business by risk management and a copy is sent to the Quality Assurance Committee for its review; no other persons or departments at the hospital have access to said form (N.T. 28-29) and it is maintained in the repository of risk management. (N.T. 16.)

DISCUSSION

Hospital argues that the QARF is a record insulated from discovery by the Peer Review Protection Act and points to the following provisions appearing at 63 P.S. §425.4

“Section 425.4 Confidentiality of review organization’s records

“The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof.”

There can be no doubt that the quality assurance committee of defendant is a “review committee” contemplated by the Act. Section 425.2 tells us that the term “review organization” includes any committee engaging in peer review, which is defined to include practice analysis, utilization review, medical audit, claims review and the like. The hospital’s committee reviews and assesses the patient incident, the appropriateness of the action taken and whether any changes should be made. The hospital contends since the QARF went to and was used by the quality assurance committee it is entitled to the confidentiality protection of the Act.

But that argument ignores the following exception built into the Act:

“Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.”

Our distinguished colleague, the Honorable James Knoll Gardner, interpreted the phrase “documents or records otherwise available from original sources” to mean “documents prepared in the ordinary course of treatment of a patient” in Hanzsek v. McDonough, 44 D.&C. 3d 639, 643 (Lehigh Cty. 1987). He went on to opine:

“Accordingly, we interpret the Act to mean that where a document is prepared solely for purposes of peer review, that document is not discoverable. Where a document is prepared solely in connection with recording events of the treatment of a patient, that document is discoverable.” Id. at 644.

Here the QARF had a two-fold use and purpose. The original of the document is delivered to the risk management department, which, together with the legal department, used it to investigate, evaluate and defend the malpractice claim of the plaintiff. Risk management then sent a copy to the quality assurance committee for review and assessment for the purpose of future protection of patients.

If the purpose of the QARF was, as hospital argues, solely for purposes of quality analysis and an action plan, why was the original of the form sent to risk management, which, under hospital policy, was required to initiate an investigation/root cause analysis of the incident reported in the document? Why not send the form exclusively to the quality assurance committee?

It is clear to us that the QARF was prepared by nursing staff in the ordinary course of business after a patient accident. It was used as an investigative tool.

The information contained in the QARF was based on information also available to plaintiff and not derived from the quality assurance committee. The fact that it was marked “Risk management,” and its accessibility limited only to risk management and in-house legal counsel reinforce the inference that its principle purpose was to assist in the defense of the claim. We are persuaded that its use by the risk management/legal department was primary and its use by the peer review committee was secondary.

Where a QARF is prepared in the ordinary course of business by nursing staff and is used and controlled by the risk management department, it is, in our view, a record available from original sources within the meaning of the exception. Its availability for use by a peer review department does not imbue it with the confidentiality of the Peer Review Protection Act (PRPA) and make it undiscoverable. Therefore, we find that the QARF comes under the exception rather than the main confidentiality provisions of the Act.

Accordingly, we find that the subject quality assurance review form is not a document protected by the PRPA and we will therefore compel its discovery.

ORDER

And now, November 4, 2002, upon consideration of plaintiff’s motion to compel discovery and extend discovery deadlines, and the briefs of the parties, and after hearing thereon, it is hereby ordered and decreed that said motion be, and the same hereby is, granted, and defendant Lehigh Valley Hospital Inc. shall produce at the office of plaintiff’s counsel, within 10 days from the date of this order, a true and correct copy of the quality assurance review form created on or about June 15, 2000.

It is further ordered and decreed that the deadlines established by the status conference order dated January 10, 2002, are hereby modified and extended as follows:

Completion of discovery, December 15, 2002
Plaintiff’s expert’s report, January 31, 2003
Defendant’s expert’s report, March 15, 2003
Plaintiff’s settlement demand, April 15, 2003
Motions for summary judgment, April 15, 2003

Defendants’ response to plaintiff’s settlement demand, May 15, 2003

Tentative trial month, June 2003


source: Caselaw Access Project

author: QUIÑONES ALEJANDRO, J.,

license: Public Domain

text:
    Krosnowski v. Ward

      Garabet M. Zakeosian, for plaintiff.

      Kevin H. Wright, for defendants Dee and Associates in Infectious Disease.

      Michael O. Pitt, for defendants Roy and Abington Pulmonary and Critical Care Associates, Ltd.

      Marcy Landis, for defendants Ward, Abington Memo-, rial Hospital and Abington Memorial Hospital Foundation.

      May 2, 2002
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

On October 4, 2001, Dolores Krosnowski as the administratrix of the estate of Thaddeus Krosnowski, deceased, (plaintiff) commenced a wrongful death action and survival action against Stephen D. Ward MD., Bruce G. Roy M.D., Robert E. Dee M.D., Kisha Martin M.D., Abington Primary Care Medicine PC., Abington Pulmonary and Critical Care Associates Ltd., Associates in Infectious Disease, Abington Memorial Hospital, and Abington Memorial Hospital Foundation (defendants) based on their alleged professional and/or corporate negligence. In response to the complaint, several of the defendants filed preliminary objections challenging venue and requesting the transfer of this civil action to Montgomery County. After carefully considering the pleadings and responses thereto, this motion judge sustained the preliminary objections and transferred the matter to Montgomery County. On appeal, plaintiff argues that this ruling was in error.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Briefly, the factual history defined by the pleadings, exhibits, and memoranda submitted in support of the parties’ respective preliminary objections and responses, is as follows:

At all relevant time periods of this action, Dolores Krosnowski and her now deceased husband, Thaddeus Krosnowski, resided at 140 Hogeland Road, Southampton, Montgomery County, Pennsylvania.

Stephen D. Ward M.D. is a licensed physician specializing in internal medicine, who resides at 1362 Welsh Road, North Wales, Montgomery County Pennsylvania, with professional offices at 1339 Easton Road, Abington, Montgomery County, Pennsylvania.

Bruce G. Roy M.D. is a licensed physician specializing in internal medicine, pulmonary medicine, and critical care, with professional offices at 1235 Old York Road, Suite 121, Abington, Montgomery County, Pennsylvania.

Robert E. Dee M.D. is a licensed physician specializing in internal medicine and infectious diseases, with professional offices at 1235 Old York Road, Suite 220, Abington, Montgomery County, Pennsylvania.

Abington Primary Care Medicine P.C. is a professional corporation located at 1372 Easton Road, Roslyn, Montgomery County, Pennsylvania.

Abington Pulmonary and Critical Care Associates is a professional corporation located at 1235 Old York Road, First Floor, Abington, Montgomery County, Pennsylvania.

Associates in Infectious Disease is a professional corporation located at 1235 Old York Road, Suite 220, Abington, Montgomery County, Pennsylvania.

Abington Memorial Hospital and Abington Memorial Hospital Foundation are medical corporations located at 1200 Old York Road, Abington, Montgomery County, Pennsylvania.

Kisha Martin M.D. is a resident physician employed with defendant AMH.

On September 29, 1999, Thaddeus Krosnowski (decedent) was admitted into defendant AMH by defendant Ward with a diagnosis of distal enteritis. On October 3, 1999, he underwent a surgical procedure for a perforated appendix. On October 8, 1999, decedent experienced a sudden onset of shortness of breath, pleuritic chest pain, diaphoresis and oxyhemoglobin desaturation. Each of the defendant-physicians allegedly made entries in decedent’s medical records and the diagnosis of pulmonary embolus was noted in the chart. There are no orders by any of said defendant-physicians for any diagnostic tests to confirm the noted diagnosis and/or to provide anticoagulation therapy to decedent. On October 14, 1999, decedent died as a result of a sudden onset of respiratory distress and a subsequent cardiac arrest. Post-mortem examination done on October 15, 1999, revealed evidence of fresh pulmonary emboli and pulmonary emboli that had occurred several days earlier. The cause of death was noted to be an acute pulmonary embolism.

Procedurally, the record reveals that:

On October 4, 2001, plaintiff commenced a wrongful death action and a survival action based on claims of medical malpractice and/or corporate negligence against defendants. Timely preliminary objections averring improper venue were filed by defendants Roy, Dee, Critical Care, Associates, and AMH.

On November 14, 2001, plaintiff filed an amended complaint. Defendants Roy, Critical Care, Ward, Martin, AMH, AMHF, Dee, and Associates timely filed preliminary objections to plaintiff’s amended complaint and again argued, inter alia, improper venue and legal insufficiency. Plaintiff filed timely answers in opposition to the preliminary objections, and defendants Ward, Martin, AMH, and AMHF filed a reply.

On January 9, 2002, these pleadings were assigned to this motion judge. By orders dated January 14, 2002, this motion judge sustained defendants’ preliminary objections and transferred the matter to Montgomery County, with costs to be borne by plaintiff.

Dissatisfied with the portion of the order which transferred venue, plaintiff, on February 5, 2002, filed timely appeals.

ISSUE

In response to an order issued in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), plaintiff on March 21, 2002, filed of record a statement of matters complained of on appeal and argued that this motion judge erroneously sustained defendants’ preliminary objections in that:

“(1) venue properly lies in Philadelphia County as to defendant Abington Memorial Hospital because defendants failed to meet their burden of establishing that plaintiff’s choice of forum was improper, and because Abington Memorial Hospital maintains sufficient quality and quantity of contacts with Philadelphia County under existing case law in the following ways:
“(a) by holding itself out as a Philadelphia County health care institution and marketing its services to residents of Philadelphia County;
“(b) through the ‘CHOP Connection’ and its close affiliation with Children’s Hospital of Philadelphia in Philadelphia County;
“(c) and through its regular use of the Court of Common Pleas of Philadelphia to conduct litigation as a plaintiff and defendant in civil matters.
“(2) Defendant AMH furthers its corporate objective of patient care through its residency programs which depend on their close affiliations with teaching hospitals in Philadelphia County; and
“(3) this court has repeatedly overruled identical objections to venue in Philadelphia County raised by defendant AMH in other cases.”

LAW AND DISCUSSION

It is well-settled that improper venue shall be raised by preliminary objection. Pennsylvania Rules of Civil Procedure 1006(e) and 1028(a)(1); Kubik v. Route 252 Inc., 762 A.2d 1119, 1123 (Pa. Super. 2000). Questions of venue must be raised at the first reasonable opportunity, otherwise, they are deemed waived. Id. A trial/motion judge has the discretion to sustain or overrule preliminary objections that challenge venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is reasonable in light of the facts. Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 387 (Pa. Super. 2002); Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). It is understood that a plaintiff’s choice of forum is to be given great weight so long as the requirement of personal and subject matter jurisdiction are satisfied, and it is the defendant who has the burden in asserting a challenge to the plaintiff’s choice of venue. Kubik, supra at 1122; Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). If there exists any proper basis for the court’s decision to sustain the preliminary objections and transfer venue, the decision must stand. Estate of Werner ex rel. Werner v. Werner, 781 A.2d 188 (Pa. Super. 2001). Further, a decision to transfer to an appropriate county will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997).

To show an abuse of discretion, an appellant must show that in reaching a conclusion, either a law was overridden or misapplied, or the judgement exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Commonwealth v. Baker, 564 Pa. 192, 197, 766 A.2d 328, 331 (2001).

Generally, venue is determined by either Pa.R.C.P. 1006 or 2179. Specifically, Rule 1006(a) provides that: “an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa.R.C.P. 1006(a).

As for personal actions against a corporation or similar entity, Rule 2179(a) provides that these actions may be brought in and only in:

“(1) the county where its registered office or principal place of business is located;
“(2) a county where it regularly conducts business;
“(3) the county where the cause of action arose; or
“(4) a county where transaction or occurrence took place out of which the cause of action arose.” Pa.R.C.P. 2179(a).

In addition, under the general rule of venue, an action involving multiple defendants who may be jointly and severally liable, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants. Pa.R.C.P. 1006(c).

Here, it is undisputed that the alleged medical malpractice action occurred in Montgomery County. It is further uncontested that the defendant-physicians have offices and/or residences in a county other than Philadelphia County, and that defendant AMH has its principal place of business in Montgomery County. In light of the cited rules, the determinative issue to establish venue in Philadelphia County is whether defendant AMH regularly conducts business in Philadelphia County.

To determine whether a corporation regularly conducts business in a particular county, a court must focus on the nature of the acts the corporation allegedly performs in that county, which must be assessed both as to their quantity and quality. Gale v. Mercy Catholic Medical Center Eastwick Inc., Fitzgerald Mercy Division, 698 A.2d 647, 651 (Pa. Super. 1997), app. denied, 552 Pa. 693, 716 A.2d 1249 (1998); Mathues, supra at 234, 652 A.2d at 351. Acts satisfying the quality test are those directly, furthering, or essential to, corporate objects; they do not include incidental acts. Gale, supra, (citations omitted) Acts satisfying the quantity test are those so continuous and sufficient to be general or habitual. Id. In combined form, the acts of a corporation must be distinguished: those in aid of a main purpose are collateral and incidental, while those necessary to its existence are direct. Shambe v. Delaware and Hudson Railroad Company, 288 Pa. 240, 135 A. 755 (1927); Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990). (emphasis added)

As stated, plaintiff argues that venue is appropriate in Philadelphia County because defendant AMH holds itself out as a Philadelphia County health-care institution and markets its services to residents of Philadelphia by its listings in the Bell Atlantic Philadelphia Yellow Pages, and in its inclusion in the 2001 Dorland’s Physician Directory as a “regional health center serving people in Montgomery, Bucks, and Philadelphia counties.” Additionally, plaintiff contends that defendant AMH’s close affiliation with the Children’s Hospital of Philadelphia is sufficient to confer venue in Philadelphia County. Defendant AMH’s web site describes the CHOP connection at AMH as an enhancement to AMH’s inpatient program. The program provides 24-hour coverage by CHOP physicians for pediatric inpatients, as well as consultations by other pediatric specialists.

As to plaintiff’s argument that defendant AMH’s advertisements in Philadelphia County confers venue therein, Plaintiff is mistaken since clearly, advertising does not amount to conducting business for purposes of venue. See Purcell, supra. Further, the activities on the web site are also merely incidental functions and not central to defendant AMH’s business. See Kubik, supra.

Plaintiff is also mistaken in her argument that because defendant AMH is involved with CHOP to provide 24-hour coverage by CHOP physicians to defendant AMH’s pediatric inpatients, this arrangement confers venue in Philadelphia County. This is a service done at defendant AMH’s facility by staff physicians, some of whom may also have privileges at CHOP. Again, in this motion judge’s opinion, this relationship does not confer venue in Philadelphia County. As stated in Purcell, supra, this conclusion might have been different had defendant AMH established a branch clinic or program in CHOP or anywhere else in Philadelphia where paying customers would be diagnosed or treated on its premises in Philadelphia.

In addition, as an enhancement to AMH’s own inpatient program, this motion judge opines that this arrangement is analogous to having residents rotate in a hospital, albeit these physicians may or may not be residents, and is, therefore, incidental to defendant AMH’s corporate objectives as a health-care provider. Again, see Purcell, supra.

Plaintiff argues that defendant AMH furthers its corporate objective of patient care through its residency programs which depend on their close affiliations with teaching hospitals in Philadelphia County. Once again this motion judge disagrees and acknowledges the court’s holding in Purcell, supra, that the rotation and use of medical personnel is essentially an educational process which does not amount to the quality of business activity, and that such arrangements with the medical schools go beyond mere incidental contacts rather than being essential. Purcell, supra at 1287.

Finally, plaintiff argues that this court has overruled identical objections to venue raised by defendant AMH in other matters. This argument is of no import since in deciding whether venue is proper, each case must rest on its own facts. Gale, supra at 650. This motion judge does not have to follow rulings in other cases, wherein defendant AMH raised preliminary objections challenging venue. Of interest, defendant AMH points to many other rulings where preliminary objections were sustained and venue was transferred out of Philadelphia County. Further, it has been suggested that medical providers are not in the business of commencing lawsuits. See Gale, supra at 652, where the court stated that “the fact that Mercy has initiated legal proceedings in Philadelphia County in the past [is] insufficient to satisfy venue requirements ... [its] business is the provision of medical care, not the commencement of lawsuits.” Thus, plaintiff’s argument that venue is proper through defendant AMH’s regular use of the Court of Common Pleas of Philadelphia to conduct litigation as a plaintiff and defendant in civil matters has no merit.

CONCLUSION

Based on the foregoing analysis and case law, in particular Purcell, supra and Gale, supra, this motion judge opines that when analyzing the quantity and quality of defendant AMH’s activities in Philadelphia County, these are not sufficient to confer venue in Philadelphia County in this matter. Therefore, this motion judge respectfully requests that plaintiff’s appeal be dismissed and that the orders of January 14, 2002, be affirmed.

      . Plaintiff’s statement of matters complained of on appeal, p. 4.

      . This order also struck the terms “agents, servants, employees and ostensible agents,” and granted plaintiff leave to file a second amended complaint. On February 5, 2002, plaintiff filed another amended complaint.

      . 2001 Dorland’s Physician Directory, p. 487.

      . Plaintiff characterized this relationship as an affiliation.