PROCEDURE-FORUM NON CONVENIENS-MEDICAL MALPRACTICE

January 25th, 2018 by Rieders Travis in Procedure

Paige Moody and Khalil Tomlinson v. Lehigh Valley Hospital – Cedar Crest, 2018 Pa. Super. LEXIS 28 (January 18, 2018) Bowes, J.  Wrongful death and survival action sounding in medical malpractice was filed in Philadelphia.  The trial court transferred the case to Lehigh Valley on forum non conveniens grounds.  The Superior Court reversed and remanded for further proceedings consistent with the opinion.  A 17-month-old presented at Lehigh Valley Hospital with a history of vomiting and coughing.  She came under the care of physicians there.  After further doctor and hospital visits to various doctors and Lehigh Valley Hospital, the child was transferred to Children’s Hospital of Philadelphia by helicopter.  The doctors at Children’s Hospital performed a cardiac procedure and administered an overdose of versed, 10 times the proper dose.  The child died at Children’s Hospital eight (8) days later.  The burden to transfer on forum non conveniens grounds is a heavy one.  It must be shown that the chosen forum is either vexatious or oppressive.  Vexatious means that the plaintiff’s choice was intended to harass the defendant, even at some inconvenience to the plaintiff himself.  Oppressiveness requires a detailed factual showing by the defendant that the chosen forum is oppressive to him.  The court relied upon the Cheeseman opinion.  The plaintiff’s choice of forum can rarely be disturbed.  The burden on defendant is a heavy one.  The Philadelphia County involvement is not incidental or tangential.  There is nothing in the record that supports a finding that the filing of the case in Philadelphia was vexatious.  Sacred Heart defendants’ evasion of discovery evidences a lack of good faith.  The late joinders and/or late filings of petitions to transfer, together with supporting affidavits, was calculated to avoid discovery and ambush the plaintiffs with new claims of oppressiveness and no notice or opportunity to refute them.  The court applied the wrong standard.

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