Your servant has had the temerity to question the notion that care is provided at the patient’s site. Substantially all the commentators and gurus agree on that question. Yet I cheerfully persist in my heresy: that idea may not be beyond debate. Here’s today’s installment:
Seems that a cardiologist in Philadelphia was accused of negligent delay in reporting on her read of a premie’s echocardiogram sent to her from suburban/rural Berks County, Pennsylvania. The opinion does not disclose how the echo was sent, nor how the cardiologist transmitted her findings. Alleging that the failure to transmit the report timely breached the standard of care, the plaintiffs sued in, of course, Philadelphia. The defendants sought to change venue to, of course, Berks County. In Pennsylvania, malpractice suits must be brought where the healthcare was furnished. Pa. R. Civ. Proc. 1006(a.1). On the theory that the alleged delay was clerical, and hence not malpractice as Pennsylvania understands that concept, the trial judge granted the motion. The Pennsylvania Superior Court, however, reversed. The higher court concluded that the allegation was indeed a claim of malpractice, as distinct from simple clerical error, and, for our purposes more important, the care took place where the doctor did her reading: in Philadelphia. Wentzel v. Cammarano, 2017 Pa. Super. 233 (2017), https://law.justia.com/cases/pennsylvania/superior-court/2017/1159-eda-2016.html. Thus, said the court, venue in Philadelphia was proper.
In discussing its reasoning, the court cited several cases. In Peters v. Sidorov, 855 A.2d 894 (Pa. Super. 2004), the court held that venue was proper in the jurisdiction where the doctor prescribed a medication, and not in the jurisdiction where the patient got the script filled, took the medicine, and allegedly suffered an allergic reaction. The court looked to where the malpractice was alleged to have occurred, which was where the doctor did his work, not to that where the damages were allegedly sustained.
Discussion:
There is no clear indication that Wentzel involved telemedicine; nothing in the decision establishes that the care provided would meet any of the usual definitions of the term. The baby in Wentzel was plainly very sick, however, and it is logical to guess that to save time the echo was sent to the cardiologist by electronic means. But we do not actually know that. The case is instructive, nevertheless.
In some states, positive law declares that distance care is provided at the patient’s location. In many jurisdictions, however, the law is silent on that question. Where that is the case, there seems to be no reason why counsel should not consider taking the position, as the Pennsylvania Superior court decided in Wentzel, that the care occurred where the doctor performed his services. Indeed, where doing so is in the best interest of the defendant client, counsel may be ethically required to do so.