Opinion of the Court

Procedural History:

Plaintiffs Joseph Cohen and Galit Dadoun-Cohen, individually and in their own right as co-administrators of the estate of Ethan Amos Dadoun-Cohen, deceased, appeal from the Court’s Order, dated April 24, 2007, wherein the Court granted preliminary objections of Defendants Eric Carlson, D.O., and Main Line Perinatal Associates, transferring the matter to the Court of Common Pleas of Montgomery County, Pennsylvania.

Factual Background:

Plaintiffs discovered about September, 2005, that they were expecting their first child. (Complaint ¶ 20). Upon learning the news, Plaintiff Dadoun-Cohen began treating with Yvonne Prioleau, M.D. of Pennsylvania Hospital in Philadelphia1 and received an expected due date of “on or about June 11, 2006.”

At about the thirty-second week of her pregnancy, Plaintiff Dadoun-Cohen was diagnosed with polyhydramnios.2 Gestational diabetes was suspected. After discussing the complication of her pregnancy with Dr. Prioleau, Plaintiff “sought assistance” with Defendant Kathleen Furin, MSW, CCE,3, the Defendant Maternal Wellness Center 4. The Maternal Wellness Center, where Furin leads “an educational course for expectant mothers to ‘help mothers make choices about birthing’, is located in Philadelphia. Defendants Furin and the Maternal Wellness Center appear to be the only connection between this matter and Philadelphia County.

At about the thirty-fourth week of her pregnancy, after another conversation with Furin, Plaintiff decided to treat with Defendants Ronni Rothman, CNM5, and Julianna Thompson, CNM, of Woman Wise Midwifery, and to plan to deliver her baby at Defendant Lankenau Hospital. Woman Wise Midwifery is a healthcare facility located at Lankenau Hospital in Wynwood, Montgomery County, Pennsylvania. Plaintiff’s prenatal treatment included office visits at that location. There is no indication in the record that she received any further medical care in Philadelphia, from Dr. Prioleau, Pennsylvania Hospital, or any named defendant, after transferring her care to Woman Wise Midwifery and Lankenau Hospital after the thirty-fourth week of her pregnancy.

Plaintiff’s contractions began in the evening of June 20, 2006. After Mr Cohen communicated with Defendant Rothman, he and Mrs. Dadoun-Cohen traveled to Lankenau Hospital, where she was admitted. During her labor and delivery at Lankenau Hospital, Plaintiff was under the treatment of Defendants Rothman, Thompson, Woman Wise Midwifery, Lankenau Hospital, Eric Carlson, D.O., and Main Line Associates.

Plaintiff’s course of treatment during labor included “periodic fetal monitoring”. At or about 7:00 am on June 21, 2006, she was offered a choice of either Pitocin6 or cesarean section. At or about 7:55 a.m., Ethan Amos Dadoun-Cohen was delivered via cesarean section. After initial treatment in the neonatal intensive care unit of Lankenau Hospital, Ethan was transferred to Thomas Jefferson University Hospital on June 21, due to “seizures, perinatal asphyxia, head cooling evaluation, hypoglycemia, and a suspicion of sepsis. Tragically, he passed away at Thomas Jefferson Hospital on June 23.

Plaintiffs filed their Complaint on February 15, 2007. Plaintiffs allege negligence, professional malpractice, wrongful death, and negligent infliction of emotional distress against Furin, Maternal Wellness Center, Rothman, Thompson, Woman Wise Midwifery, Carlson, Main Line Perinatal Associates, and Lankenau Hospital. Defendants Carlson and Main Line Perinatal Associates timely filed Preliminary Objections in the form of a Motion to Transfer Venue to Montgomery County, Pennsylvania. This Court ordered the matter transferred on April 24, 2007, and Plaintiffs appealed the Order. Upon the Court’s order, dated May 31, 2007, Plaintiffs timely filed their Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal on June 11, 2007. Plaintiffs assert, in the first place, that venue properly lies in Philadelphia against Furin, Maternal Wellness Center, Rothman, and Woman Wise Midwifery; and in the second place, that the matter should not be transferred to Montgomery County before allowing limited discovery on the issue of venue.

Kathleen Furin, who was employed by the Maternal Wellness Center, were the only Philadelphia defendants. Ms. Furin was a social worker and childbirth educator. As a result of the conversation between Plaintiff and Furin/ Maternal Wellness Center, the Court noted that Plaintiff made the exclusive decision to transfer her maternal care during her thirty-fourth week of pregnancy to Woman Wise Midwifery and Lankenau Hospital, both defendants there, which are located in Montgomery County.

The Complaint alleges:

failing to diagnose and adequately treat a macrosomic fetus;

failing to treat Plaintiff, Galit Dadoun-Cohen, as a high-risk patient;

failing to induce delivery at an earlier date and time, given the clinical picture;

failing to initiate, commit to, and follow up with Plaintiff, to ensure that appropriate treatment was rendered and extra surveillance performed, given Plaintiff’s clinical picture;

failing to recognize and diagnose the Plaintiff’s decedent with arrest of labor in the active stage when, after 7:00 a.m. on June 21, 2006, there was no change in the cervix of the Plaintiff since the time of her admission, some nine (9) hours earlier;

failing to continuously monitor the fetus during the labor and delivery process, particularly after thick, particulate meconium was documented;

failing to notify Defendant Carlson of Plaintiff’s decedent’s condition before 7:00 am on June 21, given Plaintiff’s clinical picture;

failing to administer intravenous fluids until approximately 5:00 a.m. on June 21, 2006, at least ten (10) hours after the onset of labor and coupled with diminished fetal heart rate variability;

failing to utilize continuous internal fetal monitoring before 6:54 a.m. on June 21, 2006;

failing to properly examine the Plaintiff, to determine the size of the Plaintiff’s decedent;

failing to timely perform a Cesarean section given Plaintiff’s clinical picture; and,

failing to timely recognize, diagnose, respond to, and treat fetal distress.

The Court found that it was clear that Plaintiff’s allegations support this Court’s conclusions that the medical care was furnished in Montgomery County and not in Philadelphia. Quoting the holdings from another case: ‘to create venue, it is not the county where the alleged negligent action took place that determines venue, but the county where the action affected the patient. That is where the care was ‘furnished’.’8

In this case, the Court considered that the alleged negligent advice by the Philadelphia defendants is the type of non-medical care activity that cannot be the basis for venue.9

The geographic locale where the lawsuit is filed can determine the appropriate court where a lawsuit is pending. This is proper if the Court is in the judicial district where the defendant resides or where the events giving rise to the claim occurred. The law also allows a lawsuit to be transferred to another U.S. venue if it is more convenient for the Plaintiff or the original choice is improper, having no relationship to the parties or claims in the case. Change of venue may also be proper if there is a risk that potential jurors would be unfairly prejudiced e.g. excessive publicity regarding the case.

When the above case was initially filed, venue was considered proper in Philadelphia; no doubt because the Plaintiff resided there and two of the named defendants did business there. However, the Court in this case reasonably ruled that Montgomery County was the proper venue, because the negligence alleged in the Plaintiff’s Complaint happened there. The Court also reasoned that: “the trial court holds ‘considerable discretion’ in determining to transfer venue.” “To determine whether venue is indeed improper, the trial court relies on facts raised ‘by depositions or otherwise.’’’ After a review of the pleadings, it may be “well within the trial court’s discretion” to make findings of fact regarding venue. . .”

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1. Dr. Prioleau and Pennsylvania Hospital were not defendants in the suit.

2. This rare, “abnormal condition of pregnancy, also known as hydramnios, is characterized by an excess of amniotic fluid” and increased risks of “premature rupture of the membranes, premature labor, and perinatal mortality.” Douglas M. Anderson, M.A., ed., Mosby’s Medical Dictionary 835-36 (6th Edition 2002).

3.”Certified Chilbirth Educator.” The record does not indicate what governing body has granted Ms. Furin this certification, nor does the rexpectantmothersguide.com/.ecod indicate whether Ms. Furin is a statutorily licensed healthcare provider.

4. The Maternal Wellness Center is a non-profit charitable organization whose mission is to support, educate, and empower women and families during the transition to parenthood.” Expectant Mothers’ Guide, http://www.the expectantmothersguide.com/.

5. Certified Nurse-Midwife

6. Pitocin is a brand name of oxytocin, a hormone that stimulates contractions.

7. Thomas Jefferson University Hospital is not a defendant in this suit.

8. Thomson Reuters. Practical Law

9. ABA Groups/ Division of Public Education/ How Courts Work.

https://www.midwivesontrial.com

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