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CHUL KIM v. ESTATE ELIZABETH G. HEINZENROETHER BY ROBERT R. HEINZENROETHER (08/25/78)

decided: August 25, 1978.

CHUL KIM, M.D., PETITIONER
v.
ESTATE OF ELIZABETH G. HEINZENROETHER BY ROBERT R. HEINZENROETHER, EXECUTOR, RESPONDENT



Appeal from the Order of the Administrator for Arbitration Panels for Health Care in case of Estate of Elizabeth G. Heinzenroether by Robert R. Heinzenroether, Executor, No. M77 -- 0074.

COUNSEL

Jerome W. Kiger, with him Dennis A. Watson, and Grogan, Graffam, McGinley & Solomon, for petitioner.

P. Andrew Diamond, with him William E. Stockey, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.

Author: Bowman

[ 37 Pa. Commw. Page 330]

This particular proceedings is a by-product of a survival action initiated by the executor of the respondent's estate against the petitioner, Chul Kim, M.D., upon allegation that the petitioner had acted negligently in the treatment of the decedent, Elizabeth G. Heinzenroether, thereby causing her to sustain serious injury to her arm.

The underlying proceedings were initiated pursuant to the provisions of the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.101 et seq., the purpose of which is "to make available professional liability insurance at a reasonable cost, and to establish a system through which a person who has sustained injury or death as a result of tort or breach of contract by a health care provider can obtain a prompt determination and adjudication of his claim and the determination of fair and reasonable compensation." Section 102 of the Act, 40 P.S. § 1301.102.

The Act creates within the Department of Justice the Office of the Administrator for Arbitration Panels for Health Care (Administrator), whose duties include the promulgation of all rules prescribing the manner of obtaining redress under the Act, the appointment of a separate Arbitration Panel for each claim, and ruling on all preliminary motions.*fn1

[ 37 Pa. Commw. Page 331]

In order to prosecute a claim, a patient, or representative, files a complaint with the Administrator who refers the case to the appropriate Arbitration Panel which hears and resolves the claim. See Sections 401 and 402 of the Act, 40 P.S. §§ 1301.401, .402; 37 Pa. Code § 171.1 et seq.

Accordingly, on March 23, 1977, a "notice complaint" was filed with the Administrator alleging negligent mistreatment on or about June 15, 1975. After procedural infighting not germane to a resolution of the issue before this Court, a formal complaint was forwarded to the Arbitration Panel on June 13, 1977.

The petitioner thereafter filed preliminary objections to the complaint, the substantive basis of which was that the panel for health care was without jurisdiction to entertain an action which arose prior to the effective date of the Act, January 13, 1976.

Respondent answered by filing a petition for change of venue to the Allegheny County Court of Common Pleas; said petition being premised upon Section 506 of the Act, 40 P.S. § 1301.506, which binds the Arbitration Panel to the Rules of Civil Procedure, and Pa. R.C.P. No. 213(f), which ...


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