Alessio, N. v. I-Flow Corp.
1469 EDA 2016
| Pa. Super. Ct. | Nov 28, 2017Background
- Plaintiff Michael Alessio sued surgeons and manufacturers alleging medical malpractice and products liability after an I-FLOW On-Q infusion pump was implanted during shoulder surgery and allegedly caused chondrolysis (cartilage degeneration).
- Alessio received initial treatment in Philadelphia from Dr. Richard Strulson, who referred him to Dr. Seth Krum in Montgomery County; Krum performed surgery and used the On-Q pump and provided follow-up care in Montgomery County.
- Defendant Krum filed preliminary objections arguing venue properly lay in Montgomery County under Pa.R.C.P. 1006 because medical services at issue were furnished there; the trial court sustained the objections and transferred the case to Montgomery County.
- Alessio appealed the venue transfer, arguing venue was proper in Philadelphia because he alleged negligent acts by Dr. Strulson occurring in Philadelphia (failure to monitor, warn, supervise, and refer), and Rule 1006(c)(2) permits venue where any defendant furnished care.
- The Superior Court reviewed whether venue was improper and whether the trial court erred in treating the Philadelphia claims as mere negligent referral.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue was properly transferred to Montgomery County under Pa.R.C.P. 1006 | Venue proper in Philadelphia because Strulson furnished health care there and Alessio alleged negligent monitoring/warning/supervision occurring in Philadelphia | Venue proper in Montgomery because the operative medical care (implantation and follow-up) occurred there; Strulson’s role was only negligent referral | Reversed transfer: venue proper in Philadelphia because complaint pleaded acts of professional negligence by Strulson occurring in Philadelphia and Rule 1006(c)(2) allows venue where any defendant furnished care |
| Whether the trial court correctly characterized claims against Strulson as only negligent referral | Alessio argued claims go beyond referral (failure to warn, supervise, monitor, instruct) — acts in Philadelphia | Defendants characterized Strulson’s conduct as at most negligent referral, insufficient to establish furnishing of care in Philadelphia | Court held trial court abused discretion: complaint sufficiently alleges negligent furnishing of medical services in Philadelphia, not just referral |
Key Cases Cited
- Peters v. Sidorov, 855 A.2d 894 (Pa. Super. 2004) (distinguishes cause of action location as negligent act/omission versus location of resultant injury)
- Olshan v. Tenet Health Care Sys. City Avenue, LLC, 849 A.2d 1214 (Pa. Super. 2004) (venue proper where medical care was furnished exclusively in one county)
- Cohen v. Furin, 946 A.2d 125 (Pa. Super. 2008) (mere negligent referral may not constitute furnishing of medical care for venue purposes)