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DAVID H. SMITH v. ROBERT LINN (05/22/80)

decided: May 22, 1980.

DAVID H. SMITH, INDIVIDUALLY AND AS THE ADMINISTRATOR OF THE ESTATE OF PATRICIA SMITH, DECEASED, PETITIONER
v.
ROBERT LINN, D.O., ET AL., RESPONDENTS



Appeal from the Order of the Administrator of Arbitration Panels for Health Care in case of In the Matter of David H. Smith, Individually and as Administrator of the Estate of Patricia Smith, deceased v. Robert Linn, D.O., Lyle-Stuart, Inc., Dixon-Shane, Inc. and Howard Rosenfeld, M.D., No. 78-0589.

COUNSEL

Mitchell S. Pinsly, with him, Thomas B. Rutter, for petitioner.

M. Kelly Tillery, with him, Paul J. Senesky of Galfand, Berger, Senesky, Lurie & March, and Robert F. Rossiter, of Obermayer, Rebmann, Maxwell & Hippel, for respondents.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig and Williams, Jr. Judge MacPhail did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 51 Pa. Commw. Page 479]

The petitioner, David H. Smith, appeals from a decision of the Administrator for Arbitration Panels for Health Care (Administrator) sustaining the preliminary objections of the two respondents herein, Robert Linn, D.O., and Lyle-Stuart, Inc., and transferring the case to the Court of Common Pleas of Montgomery County.

The petitioner instituted the action before the Arbitration Panels for Health Care (Panels) pursuant to

[ 51 Pa. Commw. Page 480]

    the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., on his own behalf and as the administrator of the estate of his wife, Patricia Smith (decedent). He alleged that her death was caused by her adherence to a wantonly dangerous protein diet program espoused in a book entitled The Last Chance Diet, which was written by the respondent, Dr. Linn, an osteopathic surgeon licensed to practice in Pennsylvania, and published by the respondent, Lyle-Stuart, Inc. He also named as parties to the suit below the distributor of the liquid protein diet substance, the two manufacturers of the liquid protein, and the decedent's personal physician, Howard Rosenfeld, M.D., whom he charges as negligent in supervising the decedent's diet.*fn1

The Administrator dismissed Dr. Linn for lack of jurisdiction on the bases that the decedent was not a "patient" of Dr. Linn and also that Dr. Linn was not a necessary additional party for the purposes of joinder. The Administrator also dismissed Lyle-Stuart, Inc. on the bases that the publisher did not provide medical services and was not a proper party under the Act. The sole issue before us, therefore, is whether or not the Administrator erred in concluding that the Panels were without jurisdiction over the two respondents herein, Dr. Linn and Lyle-Stuart, Inc.*fn2

[ 51 Pa. Commw. Page 481]

The jurisdiction of the Panels is set forth in Section 309 of the Act, 40 P.S. § 1301.309, which provides:

The arbitration panel shall have original exclusive jurisdiction to hear and decide any claim brought by a patient or his representative for loss or damages resulting from the furnishing of medical services which were or which should have been provided. The arbitration panel shall also have original exclusive jurisdiction to hear and decide any claim asserted against a ...


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