The Pennsylvania Superior Court has overturned a venue transfer, from Philadelphia to Lehigh County court, in a wrongful death case involving the alleged misdiagnosis and overdosing of a 17-month-old child.

According to the court, the child, Gianna Tomlinson, went to Lehigh Valley Hospital with difficulty breathing. She was diagnosed with a respiratory infection, but on subsequent visit to Sacred Heart Hospital, was diagnosed with an enlarged heart. Tomlinson was then flown by helicopter to the Children's Hospital of Philadelphia, where she was allegedly given a lethal overdose of sedatives.

The ruling involved two of several defendants in the case: Sacred Heart pediatric neonatologist Dr. Andrew Unger, and the hospital's risk manager, Michele Coleman, who claimed a multi-week trial in Philadelphia would be oppressive.

According to Superior Court Judge Mary Jane Bowes' opinion, Unger claimed that since he was the director of pediatrics and one of very few neonatologists at Sacred Heart, his absence would be detrimental to patients. If he were able to attend trial in Lehigh County, he could remain on call, he argued. And Coleman argued that her absence for a trial in Philadelphia would impact the operation of the hospital.

Unger, Coleman and Lehigh Valley Hospital filed motions to change venue. The motions to transfer were granted by the Philadelphia judge. Tomlinson's parents and the administrators of her estate, Paige Moody and Khalil Tomlinson, argued that the trial court improperly balanced the factors of convenience in favor of Lehigh, since most of the witnesses and evidence are in Philadelphia.

The Superior Court disagreed with the trial court's reasoning that adjudicating the case in Philadelphia court would be vexatious, especially since Children's Hospital was a defendant.

Additionally, “We find merit in the administrators' contention that the trial court did not apply the proper legal standard in ruling on the petition to transfer,” Bowes said. “In faulting administrators for not introducing specific evidence of individuals in Philadelphia who would be oppressed by a trial in Lehigh County, the court missed the mark. Administrators did not have the burden to prove that Lehigh County was oppressive to certain individuals, and such evidence was irrelevant to the inquiry herein.”

She continued, “The trial court compounded its error by concluding that any assumption that trial against Children's Hospital of Philadelphia would involve witnesses and evidence from Philadelphia did not 'outweigh the record established by the defendants.' In concluding that 'the overall weight of [the defendants'] affidavits, compared to the bald assertion by plaintiff that possible, potential Philadelphia witnesses may find Lehigh County oppressive, sufficiently established the basis to transfer the matter to Lehigh County[,]' the court improperly engaged in a balancing test.”

Joel Feller of Ross Feller Casey represents the plaintiffs.

In an email, Feller said, “We are pleased that the Superior Court reversed the trial court's ruling to now allow this very significant infant death case to be litigated in Philadelphia County where it was appropriately filed initially. This well-reasoned appellate decision is important in that it will serve to prevent trial courts throughout the Commonwealth from improperly transferring cases on forum non conveniens grounds and reinforces the long-established deference granted to a plaintiff in Pennsylvania to bring a cause of action for medical malpractice in any procedurally proper venue of his or her choosing.”

Howard Stevens of Gross McGinley represents Lehigh Valley and did not respond to a request for comment.