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vs.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 96-744
CIVIL ACTION - LAW
EDWARD ZIMMER, Administ.rator
of the Estate of Albert Zimmer,
Plaintill'
HOLY SPIRIT HOSPITAL OF Tm~
SISTERS m' CHRISTIAN
CHARITY, and JON A. DUBIN, D.O.,
Defendants
ftTIPULATION OF COUNSEL
If,
AND NOW, on this (, day of 1\/,,1(111 It I ,it is hereby stipulated
between counsel for the above-named Plaintiff and Defendants who ars on this
date representing the parties and who are authorized to execute this Stipulation
which shall be filed with the Court:
1. Plaintiff shall withdraw his Request for Production of Documents
filed on or about August 28, 1996.
2. The parties stipulate that Jon A. Dubin, D.O.'s deposition shall be
held at a mutually convenient dated within ninety (90) days of the date of this
, Stipulation.
,
"
By:
. '
3.
The partlelllltipulnte that Plaintitl'll Complaint shall be med within
oodside
3401 North ro Street
Post Office B 5950
Harrisburg, PA 17110-0950
(717) 2:l2-5000
Attorneys for Defendant
Jon A. Dubin, D.O.
Dated: 1111~1']i,
,
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.5.
By: ~
Stuart A.Carpey, Esquire
Kreithen, Baron, Villari & Golomb
lOth [<'Ioor
1201 Chestnut Street
Philadelphia,I'A 19107-4179
Attorney for Plaintill'
Edward Zimmer, Administrator
of the Estate of Albert Zimmer
Dated:
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_.
'-,
EDWARD T. FEIERSTEIN ASSOCIATES
BY: Edward T. Felel'5leln/Davld L, BI'OWl
Identification No, 02570/25687 Allomsy for Plaintiff
1609 E. Wadsworth Avenue
Philadelphia, PA 19150-1019
1215\ 2047 . 1613
I ,\
EDWARD ZIMMER,Admlnistrator I COURT OF COMMON PLEAS \;
of the Estate of Albert Zimmer. I CUMBERLAND COUNTY
Deceased. Plaintiff I
I NO, 96-744
VS. I
I
I HOLY SPIRIT HOSPITAL OF I CIVIL ACTION - LAW
,I THE SISTER OF CHRISTIAN I
,; CHARITY rand ALFANO I
II
i! SALVATORE. MD and JON A. I
[I DUBIN, DO, Defendants I
PRAECIPE FOR WITHDRAWAL OF APP~RANCE
TO THE PROTHONOTARY:
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Kindly withdraw my appearance as attorney for the Plaintiff in the above
entitled matter.
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By: :._L~ C ~
STUART A. CARPEt Esquire'
For Kreithen, Baron, Vallarl & Golomb
PRAECipE FOR ENTRY OF APP_EARANCE
TO THE PROTHONOTARY:
Kindly enter my appearance as attorney for the Plaintiff in the above enti-
tled matter.
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By: _ ;> #.; &,,-,,'. /' ,....... . ,-._,~~;.'., _
EDWARD T. FEIERSTEIN. Esquire
For Edward T. Felersteln Associates
DATED: December 20.1996
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III is a wrongful death claim and Count IV is a survival action
against all Defendants. Defendants filed Preliminary Objections
to Plaintiff's Complaint on March 5, 1996.
The facts as they are set forth in Plaintiff's Complaint are
as,follows. On February 14, 1994, Decedent Albert Zimmer arrived
at Holy Spirit Emergency room with complaints of fever, chills,
nausea, vomiting, night sweats, and muscular pain for the past
four days. (Pl.'s Complaint at para. 16). Testing and
examinations r.evealed certain abnormal findings, including but
not limited to: white blood cell counts, temperature,
hemoglobin, hematocrit, urinalysis, splenomegaly, and positive
blood cultures. ~ at para. 18. Decedent was discharged with
prescriptions for oral antibiotics and instructions to follow up
care with his family doctor. ~ at para. 19.
The final blood culture later reported as positive for
"Streptococcus SP." lsL. at para. 20. On February 19, 1994,
Decedent was called by Defendant Doctors and a new prescription
was ordered. ~ at para. 21. On February 24, 1994, Decedent
was admitted to Harrisburg Hospital to rule out endocar.ditis.
~ at para. 22, 23. Decedent was diagnosed with Subacute
Bacterial Endocarditis by the medical staff of Harrisburg
Hospital and remained hospitalized until March 7, 1994. (Pl. ' s
Complaint at para. 24). Decedent continued to have chronic
problems related to Bacterial Endocarditis and eventually expired
as a result thereof on September 9, 1995.. ls1.. at para. 25.
2
DISCUSSION
Defendants raise several preliminary objections to
Plaintiff's Complaint. Defendants allege that paragraphs 29(c),
(d), (h), (i), (1), (q), (r), and (u) of Count I as well as Count
II must be dismissed because Plaintiff's Complaint lacks
requisite factual specificity. Defendants also allege that
paragraph 29(e) should be dismissed with prejudice because
Plaintiff has failed to state a claim of lack of informed consent
upon which relief can be granted.
Under Pennsylvania law, "The material facts on which a cause
of action or defense is based shall be stated in a concise and
summary form." Pa.R.C.P. 1019(a). Because Pennsylvania ifil a
fact-pleading state, "A complaint must not only give the
defendant notice of what the plaintiff's claim is and the grounds
upon which it rests, but it must also formulate the issues by
summarizing those facts essential to support the claim." Alpha
Tau Omeoa Fraternitv v. University of Pennsvlvania, 318 Pa.Super.
293, 298, 464 A.2d 1349, 1352 (1983).
In Connor v. Alleahenv Gen. Hoso., 501 Pa. 306, 461 A.2d 600
(1983), the Pennsylvania Supreme Court held that a proposed
amendment to a complaint arising out of alleged negligence in the
treatment of a hospital patient was not barred by the statute of
limitations. rg~ The Court held that the amendment did not seek
to add new allegations of negligent acts by proceeding on a
,different theory but amplified one of the allegations of the
original complaint and simply specified other ways in which the
3
hospital was negligent. ~ Moreover, in a crucial footnote,
the Court of fered the following warning I "If [defendant] did not
know how it 'otherwise fail[ed] to use due care and caution under
the circumstances,' it could have filed a preliminary objection
in the nature of a request for a more specific pleading or it
could have moved to strike that portion of appellant's
complaint." 501 Pa. 306, 311 n.3, 461 A.:!d 600, 60:! n.3 (1983).
Thus, a defendant bears the responsibility of inquiring into
general allegations of a plaintiff's complaint by filing
preliminary objections.
When considering preliminary objections in the nature of a
demurrer, "the Court must accept as true all well.pleaded
material facts in the complaint as well as all reasonable
inferences that may be drawn from those facts." O'Brien v.
Townshio of Raloho, 166 Pa.Commow. 337, 340, 646 A.2d 663, 665
(1994). Conclusions of law and unjustified inferences are not
admi t ted by the pleading. Greensoan v. u. S. Automobile Assoc.;
324 Pa.Super. 315, 318, 471 A.2d 856, 858 (1984). The role of
the trial court is "to determine whether or not the facts pleaded
,are legally sufficient to permit the action to continue." Coolev
v. East Norriton Township, 78 Pa.Commow. 11, 13 n.3, 466 A.2d
765, 767 n.3 (1983). According to the Pennsylvania Superior
Court, a preliminary objection in the nature of a demurrer should
only be granted in cases that are free from doubt. Britt v.
Chestnut Hill Colleae, 429 Pa.Super. 263, 271, 632 A.2d 557, 560
(1993) .
4
.~,J'
On its own mction, or as an alternative to granting a
demurrer, a trial court may permit or require the amendment of a
pleading w~ere the complaint is not inherently unsound but only
incomplete. Motheral v. Burkhart, 400 Pa.Super. 408, 683 A.2d
1180 (1990). Maddux v. Pennsvlvania DelJartment of Aqriculture,
35 Pa.Commow. 386, 386 A.2d 620 (1978). The Pennsylvania Supreme
Court has held that "the right to amend should not be withheld
where there is some reasonable possibility that amendment can be
accomplished BuccessfUlly." Otto v. American Mut~al Ins. Co.,
482 Pa. 202, 205, 393 A.2d 450, 451 (1978).
Factual Soecificitv of Count I
Defendants argue that paragraphs 29(c)" (d), (h), (i), (1),
(q), (r), and (u) of Plaintif f' s Complaint must be dismissed
because they lack requisite factual specificity. Defendants
express concern over the conclusory nature of these allegations
and claim that they are entitled to know the facts upon which
Plaintiff bases these allegations. Thus, Defendants argue the
allegations must be stricken for factual insufficiency.
The objectionable provisions of Plaintiff's Complaint are as
follows:
29. Plaintiff charges that Defendant-Doctors, jointly
and severally, were careless and negligent in there
aforesaid ~are and tredtment of Decedent in that they:
(c) failed to adequately and effectively
treat Decedent's symptoms, including but not
limited to ordering cardiology and infectious
disease consultations;
(d) failed to timely diagnose Decedent's
condi t ion;
5
(h) carelessly, improperly Bnd ineff~ctively
administered medications!
(i) failed to properly and adequately
monitor and administer appropriate
medications including, but not limited to
choosing oral versus I.V. antibiotics!
. . .
(1) ordered inappropriate medications!
. . .
(q) failed to appropriately interpret
obvious data, including but not limited to
lab values, vital signs and physical
i&ymptoms!
(r) failed to adequately monitor and follow
the Decedent I
(u) failed to monitor the competency of staff members
and the adequacy of their patient treatment
assessments.
These allegations are incorporated by reference against Defendant
Holy Spirit in paragraph 31(k).
After viewing the aforementioned pleadings, we agree with
Defendants' allegations that these provisions are not specific
enough to give Defendants notice of what Plaintiff's claims are
and the grounds upon which they rest. More specifically,
Defendants should be apprised of how they "failed to adequately
and effe~ti vely treat Decedent's symptoms" in paragraph (c),
"tarelessly, improperly and ineffectively administered
medications" in paragraph (h), "failed to properly and adequately
monitor and administer appropriate medications" in paragraph (i),
"ordered inappropriate medications" in paragraph (j), "failed to
appropraitely interpret obvious data" in paragraph (q), "failed
to adequately monitor and follow the Decedent" in paragraph (r),
a1;ld "failed to monitor the competency of staf f members and the
adequi;lcy of their patient treatment assessments" in paragraph
6
(u). Furthermore, the broad assertions of "including but not
limited to" should be stricken from paragraphs (c), (i), and (q)
so Defendants are aware of which events are at issue in this
suit. This Court believes that paragraph (d) is sufficient and
need not be amended. Plaintiff has 20 days to amend these
provisions so that the facts essential to support the claim are
stated in a more specific form.
!
Coroorate Nealioence
Defendants also object to Count II of Plaintiff's Complaint
which attempts to establiah a cause of action against Defendant
Holy Spirit under the theory of corporate negligence. Defendants
allege that Plaintiff's pleadings are mere boilerplate
allegations which lack any essential facts to support the claim
of corporate negligence. Thus, Defendants argue that Count II of
Plaintiff's Complaint must be dismissed for insufficient
specificity.
The relevant provisions of Count II of Plaintiff's complaint
against Defendant Holy Spirit allege the followingl
31. While Decedent was under the aforesaid care,
custody, control and supervision of Defendant-Hospital, said
Defendant directly and/or through its agents, servants, or
employees, some of whom may have been or were Defendant-Doctor(s)
named herein, was careless and negligent in that it;
(a) failed to have proper rules,
regulations, procedures or systems in place
as indicated and required by both state law
and voluntary institutional and accrediting
agencies regarding the care and treatment
rendered to Decedent while he was treated
therein;
(b) had actual or constructive knowledge
that it failed to properly select, train and
7
supervise its agents, servants, employees and
staff personnel who treated Decedent whl.le he
was a patient under its care, supervision
and/or control!
(c) had actual or constructive knowledge
that it failed to monitor the competency of
members of its medical staff, the adequacy of
its patient treatment, and the adequacy of
the equipment available for Decedent's
treatment, particularly as to the skills of
Defendant-Doctor to perform that noted
treatment and/or surgery on said Decedent;
(d) had actual or constructive knowledge
that it failed to have proper medical and
sugical review pr0cedures in place so that it
could obtain knowledge regarding the
Defendant-Doctor's performance and his
compliance with established hospital
procedures;
(e) had actual or constructiv~ knowledge
that it failed to discharge those doctors and
nurses whose medical service and skills fell
below the general recognized standards of
acceptable medical services and skills before
they came into contact with Decedent;
(f) failed to treat Decedent in accordanoe
with accepted medical and hospital practice,
particularly the recogniztion, control and
treatment of infectious diseases, under the
specific circumstances and during the medical
care noted aforesaid;
(gl failed to exercise proper skill,
diligence and due care under the specific
Qircumstances and during the medical care of
Decedent noted aforesaid;
. (h) failed to adhere! to the standard(s) of
medical care in the community here applicable
under the specific circumstances and medical
care of Decedent noted aforesaid;
(i) failed to otherwise adhere to the
pertinent, treatment, evaluation and
diagnostic procedures as one would reasonably
and ordinarily expect from medical
institutions in the business of Defendant-
Hospital under the specific circumstances and
.,
8
during the medical care of Decedent noted
aforellaid!
(j) failed to exercise that degree of skill,
car0 and treatment and/or possess that degree
Qf knowledge and competence, ordinarily
possessed by other hospitals under the
specific circumstances and during the medical
care of Decedent noted aforeoaid! and
(11:) to the extent that Defendant-Doctors
.were the agents or employees of Defendant-
Ho~pital, Plaintiff hereby re-alleges and
incorporates by reference thereto sub-
paragraphs 29 (a) through (v), inclusive, as
if the same were set forth at length herein.
WHEREFORE, Edward Zimmer, Administrator of the
Estate of Albert Zimmer, Deceased, demands judgement
against Defendant, Holy Spirit Hospital of the Sisters
of Christian Charity, jointly and/or severally with
other Defendants herein, in an amount in excess of
Twenty-Five Thousant ($25,000.00) Dollars, plus
interest and costs of suit.
Corporate negligence is a doctrine under which a hospital is
liable if it fails to uphold the proper standard of care owed the
patient. In Thomoson v. Nason Ho/W...., 527 Pa. 330, 591 A.2d 703
(1991) , the Pennsylvania Supreme Court classified a hospital's
duty into four general areas t (1) a duty to use reasonable care
in the maintenance of safe and adequate facilities and equipment;
(2) a duty to select and retain only competent physicians; (3) a
duty to oversee all persons who practice medicine within its
walls as to patient care; and (4) a duty to formulate, adopt and
enforce adequate rules and policies to ensure quality care for
the patients. ls1.. at 339, 591 A.2d at 707. In establishing
corporate negligence, "it is necessary to show that the hospital
had actual or constructive knowledge of the defect or' procedures
which created the harm." ls1.. at 341, 591 A.2d at 708. A
9
hospital's negligence must have been a substantial factor in
bringing about the harm to the injured party. ~
In Edwards v. Brandvwin~ Hosp., 438 Pa.Super. 673, 652 A.2d
1382 (1995), the Pennsylvania Superior Court explained that
Thomoson contemplates a kind of systemic
negligence, such as where a hospital knows
that one of its staff physicians is
incompetent but lets tha~ physician practice
medicine anyway; or where a hospital should
realize that its patients ar.e routinely
'getting infected because the nursing staff is
leaving catheters in the same spot for too
long, yet the hospital fails to formulate,
adopt or enforce any rule about moving
catheters . . . Though broadly defined,
Thompson liability is still fault based.
~ at 683, 652 A.2d 1386-87. A hospital's corporate negligenoe
should be measured against what a reasonable hospital under
similar circumstances should have done. ~
Plaintiff's Complaint makes broad boilerplate allegations of
c9rporate negligence. Plaintiff offers no facts to support the
co~clusion that Defendant Holy Spirit had Qctual or constructive
knowledge of the defect or procedures which created the harm or
that Holy Spirit's negligence was a substantial factor in
bringing about the harm. Instead, Plaintiff pleads a general
nonspecific count of corporate negligence which does not give the
Defendant notice upon which essential facts the cause of action
rests. Consequently, because Plaintiff has failed to allege
sufficient facts to support a claim for corporate negligence
against Holy Spirit, paragraph 31 of the Complaint is stricken
with 20 days leave to _mend.
Failure to State a Claim- Paraoraoh 29\e)
10
Finally, Defendants alleges that paragraph 29(e) of
Plaintiff's Complaint should be dismissed because Plaintiff hae
failed to state a claim of lack of informed consent upon which
relief can be granted. Paragraph 29(e) alleges the followingl
29. Plaintiff charges that Defendant-Doctors, jointly
and severally, were careless and negligent in their
aforesaid care and treatment of Decedent in that they:
(e) failed to advise Decedent as to
alternative treatments for his condition.
Plaintiff argues that Defendants are attempting to transform the
above provision into a claim for lack of informed consent when
this claim is actually based in negligence.
The law of informed consent rests on the notion that where a
patient is mentally and physically able to consult about his
condition, in the absence of an emergency, his informed consent
is a prerequisite to a surgical operation by his physician.
Coooer v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). An
operation without informed consent is a technical assault, making
'the physician liable for any injuries, regardless of whether the
treatment was negligently administered. ~ Consent to medical
treatment is valid if the physician disclosed all the facts,
risks, and alternatives that a reasonable man in the situation
w9uld deem significant in making a decision to undergo the
recommended treatment. ~
Pennsylvania CQurts have consistently held that "the
doctrine of informed consent should continue to be limited in its
applicability to only those cases involving surgical or ope~ative
medical procedures." Bover v. Snti~h, 345 Pa.Super. 66, 72, 497
11
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A.2d 646, 649 (1985). Consequently, the Pennsylvania Superior
Court held that a medical malpractice cause of action against a
plastic surgeon and radiologist for treating a lump behind a
patient's ear with radiation did not implicate the doctrine of
i~formed consent even though the plaintiff was not informed of a
viable alternative to radiation therapy. Dible v. Vaaley, 417
Fa.Super. 302, 612 A.2d 493 (1992), The Superior Court reasoned
that "deapi te appellant's insistence that he was injured by lack
,
of information, the informed consent doctrine has never been
,
applied to situations in which the missing information was other
than that affecting a surgical and/or operative procedure
actually performed." .liL. at 308, 612 A.2d 496.
In the present case, Plaintiff asserts that Defendant
Doctors were careless and negligent in failing to advise Decedent
as to alternative treatments for his condition. At this stage,
it appears as if that claim closely resembles a claim for lack of
informed consent because Plaintiff is focusing on Defendants
failure to recommend alternative treatment. If this claim is
based on the theory of informed consent, it should fail because
the context of the treatment is not in a surgical operation.
Giving Plaintiff the benefit of the doubt that this claim is
aimed at Defendant's negligence in failing to undertake
alternative treatment, as opposed to giving the Decedent
alternative treatment options, we will allow Plaintiff 20 days to
amend the pleading to set forth the nature of those alternative
treatments. We make this determination with the warning that an
12
attempt to proceed under a theory of lack of informed consent
will be fatally defective to this cause of action. Thus,
,
plaintiff must allege specifically.the alternative forms of
treatment which Defendant's' were allegedly negligent in fail~ng
,
to follow.
AND NOW,
ORDER
this, )3;" t I day of JULY, 1996, after careful
consideration, Defendants' Preliminary Objections to Plaintiff'S
Complaint are GRANTED. Plaintiff has 20 days to amend paragraphs
29(c), (d), (h), (i), (1), (q), (r), and (u) of Count I so that
t~e facts essential to support th~ claim are stated in a more
specific form, paragraph 31 of Count II is stricken with 20 days
leave to amend; and Plaintiff has 20 days to amend paragraph
29(e) so that the nature of the alternative treatments are set
forth.
By the Court,
/s/ Harold E. Shf'elv
Harold E. Sheely" P.J.
John R. Kusturiss, Jr., Esquire,'
For the plaintiff '
Jayson R.Wolfgang, Esquire
For the Defendant
lsld
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Count II sounding in corpornte negligence uguinst Delcndant.llospilal;
Count III IIII' wrongful deuth; und
County IV u survival uction,
4. IMcndunts tiled I'reliminury Objeclillns to Plaintiffs elllllplaint lln March 4, 1996,
ollellinll plaintiff fulled III ullege the relluisile I\letual specilieity with legards to puragraphs 29
(e), (d), (e). (h). (i), (I). (q). (1') und (u) in ('ount I [lIld thut ull of ('llunt II lacked the requisite
foetuol specificity required under I'u. R.CI'. 1019(01). See Exhihit "B".
5. Plaintiff responded to Delcndunt's Preliminury Objeetillns. urllul1lent wus heol'd ond
on July 23. 1996. the Courtgl'Unted Defcndant's Preliminury Objee.jlll1s, givinll Plaintiff twenty
doys to omend his complaint. Sce Exhibit "('''.
6. On August 15. 1996. not huving received notificution of the Court's decision,
Plaintiffs counsel callcd defense counsel to inquire if he had heard Irom the Court.
7. Plaintifl's counsel wus inllJl'Jl1ed by Juyson R. Wolfllung. Esquire. counsel for
defendants, thuI the Court granted the Preliminury Objections on July 23, 1996.
8. Jayson R. Wolfgang, Esquire graciously agreed to send Plaintiff's counsel a copy
of the Order as well as grant an extension until September 6, 1996, Illr 1)laintiff to amend his
complaint pursuant to the ('ourt's Order. See Exhibit "0".
9. Aller speaking with MI'. Wolfgang, Pluintiffs counsel did get a copy of the Order
and Opinion of the I/onorable I/arold E. Sheely which was post marked August IS, 1996, See
Exhibit "E".
10. Plaintiff is able to amend parallraphs 29(c), (d). (e), (h), (i), (I). (q), (1') and (u) at
the present time pursulllltto Court Ordcr.
II. Plaintiff is not able to amcnd Count II at the present time as the information
..
complainl can be dranell:
(n) All reslllcncy evaluation records of ./on A. Dubin, D.O.;
(b) All credential conllnlltee records of ./on A. Dubin, D.O.;
(c) The deposition of Jon A. Dubin. 1).0.;
(d) The entire personnel employment /ile of the Defenllant-Hospltal lor John A. Dubin,
D.O.; and
(e) Any notes. melllorandu or correspondence rclnted to ./on A. Dubin's loss of
practicing privilcges at prior hospltuls und/or heuhh cure lucililies.
13. A forlllul RCljuest li)r J>mductlon of Documcnts is uttnched hcrcto as Exhibit "F".
14. Plainliff also rcqucsts that this Bonontblc Court stay PlainlltT having to amend his
complaint for a period sufficient to accomplish thc nceded discovery and thc draning and filing
of a sufticient complaint.
WHEREFORE, pluintiff. Edward Zimmcr. Administrator of thc Estatc of Albert Zimmer,
deceased. respcctfully rCljucsts this IIonoruble Court to stay all procecdings in this Civil Action
and to grant leave to plaintiff to conduct prc-(\Jllcndcd compluint discovcry.
Rcspcctfully submitted.
KRElTHEN. BARON. VILLARI & GOLOMB
f7
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OPINION AND ORDER
MAIER, J.
.~I'-I\:LJ \~, 1995
The above captioned cases all seck rUling of the Court to dotermine if
certain items are subject to tho Pennsylvania Poor Review Protection Act, 63
P.S. 425.1 et seq (hereinafter referred to as the "Act").
To properly conclude which of the above materials are not proscribed and
lIIay be discovered, it was necessary to perforlll an in depth review and
analysis of the Act. The Court found an examination of the legislative
history most helpful in assisting it to determine the j.ntent of the
Pennsylvania legislature when they adopted this Act.
Pennsylvania House of Representatives member Jay R. Wells, III, the
apparent prime mover of the Act, responding to Representative John B. McCue
during debate prior to final passage of the Act, stated that "(t)he purpose
of the (Act) is to provide protection to those persons who give testimony' to
peer review organizations." Hearing on H.B. No. 1729, 158 Pa, I,egis. J. -
House at 4438 (1974) (emphasis added).
Later in the discussion,
Representative Wells again stated that the Act's "...main thrust i~ ~ to
provide protection for those persons who are testifvinq before these review
ITestimony is defined as "(e)vidence given by a competent
witness under oath or affirmation; as distinguished from evidence
derived from writings, and other sources. Testimony is a
particular kind of evidence that comes to a tribunal through live
witnesses speaking under oath or affirmation in the presence of a
tribunal, judicial or quasi-judicial. State v. RiQgj" 1'07 R.!.
582, 268 A.2d 692, 697...Testimony properly means only such
evidence as is delivered by a witness on the trial of a case,
either orally or in the form of affidavits or depositions."
Black's Law Dictionary, (6th ed. 1990).
2
co~nmittees." l..51. at 4438 (emphasis added). Even though the debate seeMS to
.
suggest that an "accused" doctor might be present to cross-examine adverse
witnesses, that would seem to be contrary to the theory that confidential
testimony insures truthfulness which permeates the Act, and further supports
the conclusion that testimony and data submitted as part of testimony before
a peer review committee is the material to be protected.
The words prefacing the Act also provide evidence of legislative intent:
"Providing for the increased use of peer review groups by giving protection
to individuals and data who recort .t.Q any review group." H.B. 1729, Act of
July 20, 1974, P.L. 564, No. 193, (emphasis added). In attempting to
interpret a statute's language, it must be presumed that the legislature
intended every word to be meaningful. Pennsylvania statutory Construction
Act, 1 Pa. C.S.A. 1922(2). Thus, with regard to the language in the Act
". . . individuals and data who report... ", the placement of the word "report"
after II individuals and data" is significant due to the fact that only
individuals can report, data cannot. Therefore, it must be presumed that the
legislature intended that the Act's protections apply to individuals who
testify and any data presented by them during that testimony.
The Pennsylvania Superior Court has been presented with several cases
requiring interpretation of the Act. Spec if ical.ly, the Court has interpreted
the Act's legislative purpose as seeking to encourage medical care providers
to frank ly and conf identially inform hospital committees concerning the
performance of health care professionals with the eventual goal of protecting
patients and the general public. Coocer v. Delaware Vallev Me~ical Center,
630 A.2d 1, 420 Pa, Super 1 (1993); Sanderson V. Brvan. M.D.. Ltd., 522 A.2d
1138, 361 Pa. Super 491 (1987); Steel v. Weisberq II, 534 A.2d 814, 368 Pa.
3
super 590 (1987); Steel v. weisberQ 1, 500 A.2d 428, 347 Pa. Super 106
(1985) .
For example, in Steel I, the Superior court, held that "(t)hrough
the (AGt)...the Legislature has sought to foster free and frank discussion by
review organizations." .5.t..!l.d-I, 500 A.2d at 430. However, after further
review of the Act's legislative history, the Court in steel II held that it
was "clear that the legislature did not intend to provide unlimited
protect,;ion to persons giving testimony or providing information to peer
review organizations". Steel, 534 A.2d at 817.
To date, this Court has addressed a number of specific factual
Bituations pertainin.g to the scope of the Act's protections. For example,
this Court has, inter alia, held the following:
1) where corporate negligence is alleged against a
hospital for the negligent hiring of incompetent
physicians, the personnel and credentials files
concerning the dcctor and any notes, memos or
correspondence relating to the doctor's loss
of practicing privileges at prior hospitals are
discoverable; Case Notes and Procedures of th~
PhiladelDhia Discoverv Court, 13.1 (1992).
2) where copies of peer review materials are forwarded
to persons other than the peer review committee
members, the materials are discoverable; ~. at 13.2
3) where the author of a non-discoverable report witnessed
the activities which were the subject of the report,
the author/witness can be deposed concerning the
witnessed activities but cannot be deposed concerning
the witness's testimony before a peer review committee;
I.Q. at 13.4
4) risk management incident reports which set forth facts
not otherwise privileged are discoverable. ~. at 13.7
Based on the above analysis, this Court concludes that the 'Act protects
the testimony of persons who appear before a peer review committee. In
addition, to determine the nature and extent of the testimony and data, the
4
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.
testimony betore the committee must be recorded and a transcript' or detailed
minutesl produced, otherwise, the exact testimony and data submitted cannot
be properly identitied as individual recollectir.>ns may ditter. Also, it is
difficult to believe that a medical provider would rely on unrecorded
testimony, considering the potential for error resulting from different human
recollections, to examine serious medical questions and possible solutions
and procedural changes which may have far reaching effects and consequences.
Accordingly, neither a person who gives testimony before a peer review
committee, nor anyone present during the testimony, may be required to
disclose that testimony via deposition or otherwise. Nor can the recorded
transcript of the testimony or minutes of the Committee meeting be compelled
to be produced, although a person may be questioned concerning that person's
recollection of an incident or data gathered prior to or subsequent to
appearing before a peer review committee. In addition, data submitted to the
committee by a witness in support of that witness's testimony and reports by
the peer review committee are prote~ted and not discoverable unless available
from another original source.
Applying the above reasoning to the specific motions at hand, the Court
orders are set forth infra.
In Resnick, plaintift is seeking discovery of monthly infection
surveillance reports prepared by defendant hospital's epidemiologist for
presentation to detendant hospital's infection control committee. Even
'Transcript is defined as "[t)hat which ~as been transcribed.
A copy of any kind, though commonly the term refers to a 90PY of
the record ot a trial, hearing or other proceeding as prepared by
a court reporter..." Black's Law Dictionary, (6th ed. 1(90).
lMinutes are defined as "(m]emoranda or notes of a transaction
or proceeding..." Black's Law Dictionary, (6th ed. 1990).
5
though the reports were prepared by the hospital epidemiologist for the
infection control committee, there is no indication that the reports are data
submitted by a witness in support of testimony. While the reports of the
peer review committee are not discoverable, reports or data in the possession
of the epidemiologist are subject to discovery. ACCORDINGLY, defendant's
Hotion for Reconsideration is denied.
In Levin, plaintiff is seeking all residency or fellowship evaluation
records used by defendant hospital in its decision to select and retain
defendant doctor and an incident report prepared by defendant doctor. The
records and report are discoverable as they did not emanate directly from
recorded testimony given but rather were prepared prior to 17eceipt by
defendant hospital. ACCORDINGLY, plaintiff's Motion to Compel defendant,
Thomas Jefferson Universit~' Hospital, to Produce a Copy of Residency and
Fellowship Evaluation Records Concerning Dr. sarik and Motion to Compel
defendant hospital to Produce copy of Incident Report Prepared by Dr. Sarik,
are qranted.
In ~ilson, the Court has ordered the defendant, U.S. Healthcare, to
"Produce all documents regarding the 'systematic audit' performed by the
Quality Assessment Committee or the Quality Assurance Committee as defined by
Dr. Hyman Kahn during the deposition of June 28, 1993, and conducted on
Germantown Professional Associates for the years 1988 through 1991", and
defendant now seeks reconsideration of and vacation of. that order.
Assuming arguendo, for purposes of this motion, that U.S. Healthcare is
a "professional health care provider", there is no indication from the
motions, argument or br iefs that the documents requested resu 1 ted from
testimony before a peer review committee and are therefore discoverable. In
6
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addition, even it not discoverable trom the U.S. Healthcare Quality
,
Assessment Committee, the documents would be discoverable it available trom
another source. ACCORDINGLV, the motion ot detendant for reconsideration ot
the September 1, 1993 order is denied.
In Farrinaton, plaintift is seeking a yes or no answer to an
interrogatory question whether hospital policy was followed by hospital
personnel in connection with the treatment of plaintiff and, in a second
interrogatory, which policy was violated and by whom. This is not peer
review material as it does not request intormation attained via recorded
testimony and theretore, defendant hospital is compelled to answer the
interrogatories. ACCORDINGLY, plaintiff's Motion to strike Objections and
compel Complete and More Specific Answers to Interrogatories is qranted.
In Caccomo, ClInninqham, Brandon and SJnit.tl, plaintiffs are seeking
discovery of incident reports by hospital employees. Incident reports are
generated independent of any peer review committee testimony and therefore,
are not protected. In addition, even if they were prepared to submit to the
peer review committee, they did not result directly from testimony before a
peer review committee. ACCORDINGLY, plaintiff, Caccomo's, ~otion to Overrule
Objections to Request for Production of Documents, is qranted; pl~intiff,
Cunningham's, Motion to Strike Defendant's DIscovery Objections, is qranted;
plaintiff, Brandon's, Motion to Compel Answers to Interrogatories and
Document Requests, is qranted; plaintiff, Smith's, Motion to Strike the
Objection of Defendant to Plaintiff's Request for Production of Documents, is
qranted.
Finally, in O'Connor, plaintiff is seeking to require the defendant,
Thomas Jefferson University Hospital, to produce "Any and all minutes, notes
7
Levin
Harsha Santangelo, E8q.
Richard Galli, E8q.
William Rapp, E8q.
Geol'ge Young, Jr. , Esq.
,
l<i1son I,
Richard simin8, E8q.
Jamie Sheller, E8q.
Caccomo Pokiniew8ki,
Stephen Jr:. , B8q.
Scott Teich, Esq.
" "
Cunninaham , ' I
John Quinn, E8q.
Peter Celano, Jr. , E8q.
Brandon
Rhonda Hill WU8on, E8q.
Benjamin Post, E8q.
Smith
John O'Rourke, Jr., E8q.
Robert Sachs, Jr. , E8q.
O'Connor ,
Daniel Jeck, E8q. ,
Benjamin Post, E8q. "
Anthony Zabicki, Jr., E~q.
. ,
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,
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Additional arguments have been raised and additional material has
been reviewed which prompts the Court to issue this consolidated
opinion in further support of the conclusion enunciated.
rhe pennsylvania Peer Review ~ct, 63 P.S. 5 425.1 through
425.4, while short in length, has produced much consternation and
lengthy interpretation by plaintiffs and defendants alike.
"425.1 SHORT TITLE.
Review protection Act'.
This Act may be cited as the I Peer
425.2 DEFINITIONS. As used in this act: I Peer Review'
means the procedure for evaluation by professional health care
providers of the quality and efficiency of services ordered or
performed by other professional health care providers, including
practice analysis, inpatient hospital and extended care facility
utilization review, medical audit, ambulatory care review, claims
review, and the compliance of a hospital, nursing home or
convalescent home or other health care facility operated by a
professional health care provider with the standards set by an
association of health care providers and with applicable laws,
rules and regulations.
, Professional Health Care provider' means individuals
or organizations who are approved, licensed or otherwise regulated
to practice or operate in the health care field under the laws of
the common....ealth, including, but not limited to, the following
individuals or organizations:
(1) A physician.
(2) A dentist.
(3) A podiatrist.
(4) A chiropractor.
(5) An optometrist.
(6) A psychologist.
(7) A pharmacist.
(8) A registered or practical nurse.
(9) A physical therapist.
(10) An administrator of a hospital, a nursing or
convalescent home, or other health care facility.
(11) A corporation or other organization operating a
hospital, a nursing or convalescent home or other
health care facility.
2
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, pJ:o!e..iol1al society' includes medical,
psychological, nursing, dental, optometric, pharmaceutical,
chiropractic and podiatric organizations having as members at least
a majority of the eligible licentiates in the area or health care
facility or agency served by the particular society.
'Review oJ:ganizatiol1' means any committee engaging
in peer review, including a hospital utilization review committee,
a hospital tissue committee, a health insurance review committee,
a hospital plan corporation review committee, a professional health
service plan review committee, a dental review committee, a
physicians' advisory committee, a nursing advisory committee, any
committee established pursuant to the medical assistance program,
and any committee established by one or more State or local
professional societies, to gather and review info!~tion relating
to the care and treatment of patients for the purpOSl!!S of (i)
evaluating and improving the quality health care rendered; (ii)
reducing morbidity or mortalitYI or (iii) establishing and
enforcing guidelines designed to keep within reasonable bounds the
cost of health care. It shall also mean any hospital board,
committee or individual reviewing the professional qualifications
or activities of its medical staff or applicants for admission
thereto. It shall also mean a committee of an association of
profess ional health care providers reviewing the operation of
hospitals, nursing homes, convalescent homes or other health care
facilities.
425.3 IMMUNITY FROM LIABILITY.
(a) Notwithstanding any other provision of law, no person
providing information to any review or9anization shall be held, by
reason of having provided such information, to have violated any
criminal law, or to be civilly liable under any law, unless:
(1) such information is unrelated to the performance
of the duties and functions of such review organization, or
(2) such information is false
providing such information knew, or had reason
such information was false.
and the person
to believe, that
(b) (1) No individual who, as a member or employee of
any revie'lI organization. or 'lIho furnishes professional counselor
services to such organization, shall be held by reason of the
performance by him of any duty, function, or activity authorized or
required of review organizations, to have violated any criminal
la'lI, or to be civilly liable under any law, provided he has
exercised due care.
3
(2) The provisions o~ paragraph (L) of this
subsection shall not apply with respect to any action taken by any
individual if such individual, in taking such action, was motivated
by malice toward any person affected by such action.
425.4 CONFIDENTIALITY OF REVIEW ORGANIZATION'S RECORDS.
The proceedings and records of a review committee
shall be held in confidence and shall not be subject to discovery
or introduction into evidence in any civil action against a
professional health care provider arising out of the matters which
are the subject of evaluation and review by such committee and no
person who was in attendance at a meeting of such committee shall
be permitted or required to testify in any such civil action as to
any evidence or other matters produced or presented during the
proceedings of such committee or as to any findings,
recommendat ions, evaluat ions, opinions or other actions of such
committee or any members thereof: Provided, however, that
information, documents or records otherwise available from original
sources are not to be construed as immune from discovery or use in
any such civil action merely because they were presented during
proceedings of such committee, nor should any person who testifies
before such committee or who is a member of such committee be
prevented from testifying as to matters within his knowledge, but
the said witne~s cannot be asked about his testimony before such a
committee or opinions formed by him as a result of said committee
hearings."
While the statute, suora, adopted by the pennsylvania House of
Representatives and Senate must be interpreted to give meaning to
the words in those statutes, a contra action is applied to captions
to the various sections of those statutes.
The caption to a
particular section of a statute can be used only to give meaning to
the statute, and not in a manner which is contrary to the words of
the statute. 1 Pa, C.S .A. ~ 1924.
~, the caption of ~ 425.4
states, "confidentiality of review organization's records", but the
text and any clear reading of the statute indicates that, "The
proceedings and records of a review committee shall be held in
confidence and shall not be subj ect to di scovery. . . "
A reader of
~ 425.4 must conclude that the Pennsylvania Legislature was
4
granting confidentiality for Peer Review Committees' proceedings
and records, as well as to testimony of persons who testified at
meetings of Peer Review Committees. However, that confidentiality
does not extend to information, documents or records, which are
otherwise available from original sources.
ACCORDINGLY, even though "individuals reviewing professional
qualifications or activities of a medical staff or applicants
thereto" are included in the definition of a Review organization,
individuals have not been defined as a Review Committee, and Bre
not entitled to confidentiality under !i 425.4. Since!i 425.4
confers confidentiality on Review Committees, records and
proceedings including testimony before a Review committee, but does
not grant that privilege to Review organizations, that
confidentiality does not pertain to individuals, even if they are
a Peer Review organization.
However, those persons or other entities identified as review
organizations, which are not Peer Review Committees, are granted
immunity from liability under most circumstances by 5 425.3 of the
~
Apparently by distinguishing a Peer Review Committee from Peer
Review organizations (which includes individual evaluators), the
legislature intended to offer different benefits to a review
5
organization, i. e., immunity from legal process, while offering the
5leer Revie.... Committee both immunity and confidentiality in an
attempt to strike a fair balance and allow Peer Review Committee
studies to solve medical procedure problems and insure ber;ter
practice while still allowing the discovery of material, such as we
have b4tA, which might be damaging to individual defendants, but
~till allowing frank and candid discussion from individual
evaluators by granting immunity from legal process.
Nor does public policy support a proposition, which would
allow individuals or Eoards who have derogatory information, which
may lead to the discovery of admissible evidence bearing on the
ability of the individual to render competent medical treatment, to
disregard or fail to disclose that information, either purposely or
negligently, simply to avoid liability for the inappropriate
conduct of that individual alleged to have committed medical
malpra:tice.
III addit-ion, to allow a defendant, charged with a Thoml)son v.
Nason Hosp. medical malpractice action, to refuse to release
material pert-inent to an individual medical provider, would allow
an individual to be maligned within their profession without the
individual ever being able to know the reason why, other than the
Unal action of some committee.
6
Furthermore, even if material is confidential under the ~,
that cloak of confidentiality is lifted from any".. . information,
documents or records otherwise available from original sources..."
63 P.S. 5425.4.
RAn, the Court, in-camera, has reviewed the residence
I
evaluation file of Dr. Bobrowski, and, presumably, that file is
representative of residency evaluation files generally. Each pre.
printed form included is checkmarked and signed by an individual
doctor, who has evaluated Dr. Bobrowski and in some cases, has
included positive written comments thereon. This Court finds it
hard to believe that the doctors who evaluated Dr. Bobrowski have
not kept copies of those evaluation forms nor has any argument or
evidence been presented to suggest otherwise. That data is then
available from the evaluating doctor, i.e., an original source, and
would therefore not be subject to 425.4 confidentiality.
Even if the eval1.:ation is not available from an original
source and is conf idential peer review material, the individual
evaluator may be questioned as to their evaluation of the
defendant.
The plaintiff may then be entitled to depose each
evaluator concerning the evaluation which would be time-consuming
and wasteful of litigant's time and money, albeit necessary to the
.
prosecution of a case.
7
However, if the documents an not available from another
original source, they are still discoverable if a :rhom1j1son v. Nason
~osp., puora, count has been properly included in the complaint.
Ruling otherwise would vitiate the Supreme court's decision in
:rhomcson v. Nason Hosc., sucra, and could potentially allow medical
providers to avoid producing documents which could show negligent
hiring or supervision of medical professions, which, as stated
earlier, would clearly be in violation of public policy to allow
people to cover up for incompetent physicians or to allow properly
functioning physicians to be maligned with false testimony.
Of course, a party is always free to seek redaction of
specific areas of evaluation reports or credential files where the
material contained therein would 110t be likely to lead to the
discovery of admissible evidence.
II'
I
For all of the reasons set forth above, the resident'S
evaluation file of Dr. Bobrowski is discoverable, and the
protective Order sought to prevent discovery of those documents is
denied.
We turn now to an examination of the Request to Review the
"credential <;:ommittee RecordS" pertaining to Dr. Bobrowski and Dr.
Pavlides,as well as the Request for protective Order.
8
,nJI,
Since this Court has in the past, on several occasions,
authClrized the release of the credentials file for various parties,
as opposed to the full and complete copy of any credentials
committee records, the Court ordered the defendant to produce the
credentials file for Dr. Pavlides for in-camera inspection by the
Court to have a complete record so that litigants may be aware of
this Court's Opinion on production of credentials files.
The credentials file, which was not an atypical credentials
file, was examined in-camera by the Court and was found to contain
the following documents:
Pages
Marked:
Al.
A2.
AJ - A9.
Ala-All.
A12.
A13. .
81-810.
C.
D.
E.
, ~.
G.
H.
I.
Contained:
Informational letter to the defendant,.
A table of cont.ents.
An application.
CUrriculum vitae.
A statement of the applicant.
Licenses, diplomas and insurance information.
Letters forwarding applications for privileges,
applications and curriculum vitae.
Letters in agreemont to abide by hospital rules.
Practice profile.
Delineation of privileges.
Delineation of clinical privileges, applications
and attendance certificates.
Delineation of privileges.
Insurance, licenses, reappointment letters,
evaluation of staff members.
9
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, (l-R.
64-66.
T.
u.
v.
w.
X.
Y.
t.icense query, clinical reference questions,
educational information, photostat of medical
directory .
Reappointment letter, evaluation of medical staff
(although malpractice information is mentioned, it
is not attached).
Reappointment application.
License information and letters seeking
information.
Hospital activities records, which appear to be a
summary of charges and procedures generated by
hospitals that are processing.
Insurance information as reappointment 'letter
application.
Evaluations and there are attendance at courses
and licensing information.
A suHi,cient profile again generated by data
processing area, a performance profile which,
again, is data-processing produced hospital
records of status and privileged delineation
insurance information and licensing information.
contains an evaluation, letter requesting
information, attendance certificate, license
information, insurance, re-application letter.
Licens ing informat ion, a Peer Review Htanual,
delineation of privileges.
privileged delineation.
Evaluations for bi-annual reappointment
accompanied by preprinted forms with certain
procedures circulated, which apparently delineate
the areas for which Dr. Pavlides feels he may
practice without any type of supervision.
curriculum vitae, license insurance information,
attendance certificates, operative procedures,
statistics and letters of recommendation.
10
All n~cerials listed in Dr. Pavlides' credentials file, which
were submitted to the Court, appear to be available from various
original sources. For example, Dr. Pavlides signed many documents
and other doctors signed evaluation fOI'IlIs. Presumably, Dr.
Pavlides and evaluators keep copies of items signed, for future
reference. In addition, licensing and insurance information and
a multitude of materials ar.e included, which are available from
original sources. If the documents cannot be examined, a litigant
could discover the information on the documents by examining the
individual, who authored the document, e.g., Commonwealth of
pe~sylvania, the insurance companies, the cefendant, ~~ '~.
To avoid this truncated and complicated discovery activity is the
very reason why the Peer Review Act exempts those items which are
available from an original source from the confidentiality of S
425.4.
For the reasons set forth, su~XA, concerning the evaluation
reports, they are, of course, also discoverable.
Hence, items found in a typical credentials tile will normally
be discoverable as available from an original source. -Of course,
thi,s is subj ect to redaction by the defendant" it certain material
should be protected from discovery for particular reasons, such as
not leading to the discovery of admissible evidence or Peer Review
Committee Records, inter alis.
11
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(u) failed to monitor the competency of staff members and the
adequacy of their pntient treatment assessments;
See Exhibit A, paragraphs 29(c), (dl, (hl, Ol, (ql, (r) and (u) (emphasis added).
3. The allegations in the above-quoted paragraphs are Incorporated by
reference as against Defendant Holy Spirit in paragraph 31lk). See Exhibit A,
paragraph 31lkl.
4. In Count II of the Complaint, Plaintiff sets for the following allegations
against Defendant Holy Spirit:
31. While Decerlent was under the aforesaid care, custody, control and
supervision of Defendant.Hospital, said Defendant directly and/or through its
Ilgents, servants, or employees, some of whom may have been or were
Defendant-Doctor(s) named herein, was careless and negligent in that it;
(a) failed to have proper rules, regulations, procedures or systems in
place as indicated and required by both state law and voluntary
institutional and accrediting agencies regarding the care and treatment
rendered to Decedent while he was treated therein.
(b) had actual or constructive knowledge that it failed to properly
select, train and supervise its agents, servants, eHlployecs and staff
personnel who treated Decedent while he was a patient under its care,
supervision and/or control;
(c) had actual or constnlctive knowledge that it failed to monitor the
competency of members of its medical stafl', the adequacy of its patient
treatment, and the adequacy of the equipment available for Decedent's
treatment, particularly as to the ski\l(s) of Defendant.Doctor to perform
the noted treatment ancVor surgery on said Decedent;
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KREITHEN, BARON, VILLARI & GO~OMB
BY~JOHN E. KUSTURISS, JR.
1.0. #28271
1201 CHESTNUT ST., lOth FLOOR
PHILADE~PHIA, PA 19107
(215) 563.,8286
EDWARD ZIMMER, Admunistrator
of the Estate of Albert
Zimmer, Oeceased
835 Ridgewood Drive
Mechanicsburg, PA 17055
v.
HO~Y SPIRIT HOSPITAL OF THE
SISTERS OF CHRISTIAN CHARITY
North 21st Street
Camp Hill, PA 17011
and
ALFANO SALVATORE, M.D.
North 21st Street
Camp Hill, PA 17011
and
JON A. DUBIN, D.O.
North 21st Street
Camp Hill, PA 17011
Attorn~y for Plaintiff
I IN THE COURT OF COMMON P~SAS
I CUMBERLAND COUNTY
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I JURY TRIAL DZHANDID
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CIVIL ACTION - COMPLAINT
1. Plaintiff is Edward Zimmer, Administrator of the Estate
of Albert Zimmer, Decedent, duly appointed by the Register of Wills
of Cumberland County, who resides at 835 Ridgewood Drive,
Mechanicsburg, PA 17055.
2. Defendant, Holy Spirit Hospital of the Sisters of
Christian Charity, [hereinafter "Defendant-Hospital"], is a non-
profit Pennsylvania Corporation duly organized and existing under
and by virtue of the laws of the Commonwealth of Pennsylvania, with
its principal place of business located at the above captioned
address.
3. Alfano Salvatore, M. D. , [hereinafter referred to as
"Defendant-Doctor(s) "J, is an adult individual and at all times
J.
.'
.
material and relevant hereto was a duly licensed and practicing
physician in the Commonwealth of Pennsylvania with his principal
place of business located at the above-captioned address. ~
4. Defendant, Jon A. Dubin, D.O. [hereinafter referred to as
"Defendant-Doctor(s) "), is an adult' individual and at all times
material and relevant hereto was a duly licensed and practicing
.
physician in the Commonwealth of Pennsylvania with his principal
place of busineos located at the above-captioned address.
5. At all times material and relevant hereto, De,fendant-
Hospital acted by and through it's agents, servants, workmen,
and/or employees who were then and thereabout acting within the
courme and scope of their employment with said Defendants, some of
whom may have been or were Defendant-Doctor(s) named herein.
6. On or about February 14, 1994, and thereafter, Decedent
employed Defendant-Hospital and Defendant-Doctors for compensation
to provide emergency, surgical, hospital and associated medical
care and treatment to Decedent. and said Decedent thereby came
under the professional care, attention, control and treatment of
said Defendants.
7. By virtue of the aforesaid employment of said Defendants
by Decedent, a physician/patient relationship ensued and said
Defendants did thereby agree to undertake the care and treatment of
said Decedent skillfully and in accordance with the prevailing
standards of medical practice and pertinent community, state and
national standards and codes.
e. In addition to the aforesaid, at all times relevant
hereto, Defendant-Doctors held themselves out to the public and to
Decedent, particularly, as specialists in the field of emergency
medicine, infectious disease, internal medicine, and related
surgical and medical care, both inpat ient and outpatient, and as
such, are and were to be held to a higher standard of care than Ii
general practitioner within his or her chosen specialty.
9. At all times material and relevant. hereto, Defendant-
Hospital was engaged through their agents, ser.vants, employees, and
.. those staff personnel hereinafter identified in rendering
professional and medical care to the public, and thereby held
itself out to the public generally, and to Decedent speciUcally,
as being skilled in the-practice of medicine, hospital care and
surgery and thereby accepted responsibility of providing
appropriate and adequate medical, emergency medical, hospital and
surgical care to Decedent in accordance with the prevailing
standards of medical, medical provider, and hospital practice and
pertinent community, state and national standards and codes.
10. Defendant-Hospital at all times material and relevant
hereto, owned, maintained and controlled their patient rooms,
medical services, surgical theaters, treatment rooms and equipment,
all of which were operated by and for said Defendants by their
agents, servants, workmen and/or employees who were then and
thereabout withil'. the course and scope of their employment with
said Defendants and/or on the business of said Defendants, and/or
under the control and/or right of control of said Defendants.
11. At all times material and relevant hereto, Defendant-
Hospital had granted staff or other privilegeD to the above-named
Defendant-Doctorls) topractice medicine and/or surgery; to perform
.
radiological or other diagnostic examinations and/or studiefl! to
perform and practice clinical medicine! and/or to use all, of the
faciiities and medical servicEls owned' and controlled by said
Defendants.
12. At all times material and relevant hereto, Defendant-
Doctor(s) named aforesaid may have been or were employees and/or
resident physicians of Defendant -Hospital al)d, if so, were then and
thereabout and within the course and scope of their employment. with
said Defendant and/or on said Pefendant's business, and/or under
the control or right of control of said Defendant.
13. At all times material and relevant hereto, the aforesaid
Defendant-Doctors may have been or were independent contractors who
through their acts and representations, and/or acts and re-
presentations of Defendant-Hospital, had apparent, implied or
ostensible authority to act on behalf of said Defendants regarding
the care and treatment of Decedent, and, if so, said Decedent,
acting in good faith, had good reason to believe, and did actually
believe, that said Defendant-Doctor(s) possessed such authority,
all of which caused Decedent to justifiably rely upon such
appearance of authority and to reasonably believe that Defendant-
Hospital and Defendant-Corporation would be bound by the acts and
omissions of Defendant-Doctor(s) .
14. As a direct result of the aforesaid, said Defendants
accepted the responsibility for the care and treatment of Decedent,
and, in doing so, understood and assumed the duty to him to provide
safe facilities necessary for the proper practice of nursing,
medicine and surgery and to render competent, proper, adequate and
.
appropriate medical, general medical, clinical medical, diagnost ic,
nursing and/or other medical care and treatment, and to take
appropriate preventive ahd curative measures to treat said Decedent
and to avoid harm to him.
15. As a direct result of the aforesaid, said Defendants had
a duty to Decedent to. exercise or~inary care while he was confined
.
to their facility and/or received treatment therein and/or was
assigned to or under their care, which duties included, but is not
limited to I p~oviding proper medical, nuz'sing, surgical, medical
facility and hospital care! establishing and enforcing by-laws,
procedures and rules which mandate proper medical, nursing,
surgical and hospital and/or medical facility care! hiring
competent medical personnel! competent nursing personnel; keeping
the hospital or facility free from ordinary hazards, defective
equipment and improper drugs; ensuring that all patients, including
Decedent, received adequate medical attention; having sufficient
and properly trained nursing personnel, competent and able to
recognize a patient's condition; establishing and enforcing
procedures and systems to monitor their staff, and to ensure that
their patients are receiving proper care and treatment.
16. On February 14, 1994, Decedent presented to
Defendant-Hospital Emergency loom with chief complaints of fever,
chills, nausea, vomiting, night sweats and generalized muscular
pain for the past four (4) days. His vital signs at this time were
temperature 102, pulse 108, respirations 20 and blood pressure
155/75.
17. On the aforenoted date, Decedent was seen and examined by
.
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Defendant-Doctor(s) in Defendant-Hospital'S Emergency Department.
18. While under the ,care of Defendant-Hospital Emergency
~epartment, Decedent's testing and examination(s) revealed certain
abnormal findings, including but not limited to: White Blood Cell
counts, Temperature, Hemoglobin, Hematocrit, urinalysis,
splenomegaly and positive blood cultures.
19. Fo.llowing treatment and evaluation, inclusive of the
initiation of blood cult.ures, Decedent was discharged home on
February 14, 1994 by Defendant-Hospital and Defendant-Doctors with
prescriptions for oral antibiotics and instructions for follow up
care with his family doctor.
20. At 7;30 a.m. on February 15, 1994, the gram smear of
Decedent's blood culture was resulted as "Gram-Positive Cocci
Streptococcus-Like", with the final blood culture later reported as
positive for "StreptocQCCUS SpIt. (Sanguis II).
21. On February 19, 1994, Decedent was called by Defendant-
Doctor(s) and a new prescription was ordered changing his
medication from oral Cipro to oral Keflex.
22. On February 24, 1994, Decedent was admitted to Harrisburg
Hospital with positive blood cultures for streptococcus sanguis II,
and a new heart murmur consistent with aortic insufficiency.
23. The plan on admission to Harrisburg Hospital was to rule
out endocarditis.
24. Decedent was diagnosed with Subacute Bacterial
Endocarditis by the medical staff of Harrisburg Hospital,' and as a
result remained hospitalized there until March 7, 1994.
25. Decedent continued to have chronic problems related to
,
the aforenoted Bacterial Endocarditis and eventually expired as a
result thereof on September 9, 1995.
26. As a result of the careless and negligent conduct of said'
Defendants set forth herein, jointly and/or severally, D~oedent
suffered severe, painful and permanent physical and mental
injuries, including but not limited to: Subacute Baoterial
Endocarditis; respiratory distress! shortness of breath; sepsis!
irreversible damage to his heart valves; congestive heart failure!
extended hospitalization; significant .increase of the risk of harm
that he will/would suffer complications,
injuries and/or
exacerbation of the aforesaid conditions and other related
conditions; severe shock to his nerves and nervous system! all of
which caused Decedent great physical, mental and emotional pain and
suffering and his eventual untimely death.
27. As a direct and proximate result of the aforesaid
carelessness and negligence of the aforesaid Defendants, jointly
and/or severally, Decedent I
(a) suffered the aforesaid severe, painful and permanent
injuries;
(b)
the like to
conditions;
required medical care and attention, supervision and
attempt the cure of, or otherwise alleviate, his
(c) has been or will be prevented from attending his
normal duties, chores, activities and the like, and from assuming
gainful employment;
(d) has had his earning capacity and power materially
and adversely affected;
(e) has incurred medical and other expenses for his
carEl, treatment, supervision and the like, to effect a cure for, or
other~ise alleviate, his condition;
(f) has suffered severe pain and suffering and emotional
and mental trauma, anguish. and humiliation. with attendant.
+
physical and mental sequelae, any or all of which may
be permanent in nature and/or continue indefinitely into the
fu~ure!
,
(gl suffered a premature death; and/or;
(h) was in other ways damaged and injured to his great
detriment, all of which will be more fully proven at or be.fore the
trial of this cause.
COUNT I
PLAINTIPF v. DEZlNDANT-QOCTOR~
28. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-se.....en (27) inclusive, as. fully as though set
forth at length herein.
29. Plaintiff charges that Defendant-Doctors, jointly and
severally, were careless and negligent in there aforesaid care and
treatment ~f Decedent in that they:
(a) failed to recognize and timely treat signs and
symptoms of an infection, particularly a bacterial endocarditis;
(b) failed to perform appropriate diagnostic tests to
access the seriousness of Decedent's condition;
(c) failed to adequately and effectively treat
Decedent's symptoms, including but not limited to ordering
cardiology and infectious disease consultations;
(d) failed to timely diagnose Decedent's condition;
(e) failed to advise Decedent as to alternative
treat~ents for his condition,
(f) failed timely admit Decedent to the hospital for IV
administration of antibiotics and/or otherwise timely administer
same;
~g) ~elayed adequate and appropriate medical treatment
until Decedent's condition had markedly deteriorated;
(h) carelessly,
administered medications;
(i! failed to properly and adequately monitor and
improperly
and
ineffectively
administer appropriate' medications including, but not limited to
.
choos ing oral versus I. V, ant ibiotics;
(j) failed to transfer Decedent on a timely basis to a
tertiary care center for appropriate care!
(k) failed to take into account Decedent's pre-existing
medical condition when rendering treatment to him!
(1) ordered inappropriate medications;
(m) failed to recognize and take appropriate action as .
Decedent's cond;.tion deteriorated;
(n) failed to recognize the seriousness of Decedent's
condition and high risk status;
(0) failed to properly communicate with each other and
other consultants and health care providers;
(p) failed to fully and/or properly examine Decedent and
evaluate his medical condition prior to ordering antibiotics and
instituting medical care;
(q) failed to appropriately interpret obvious data,
including but not limited to lab values, vital signs and physical
symptoms;
(r) failed to adequately monitor and follow the
Decedent;
(s) failed to ensure that appropriate monitoring of
Decedent would be carried out to detect earliest manifestations of
endocarditis and/or other infectious processes, so as to ensure
,
early and aggressive treatment before it became a serious threat to
Decedent's life;
(t) failed to recosnhe advanced warning signs of the
progression of subacute bacterial endocarditis in Decedent!
(u) failed to monitor the competency of i;taff members
and the 'adequacy of their.patient treatment assessments! and
(v) were unduly and wrongly influenced by decedent' S
past medical history of percodan and heroin additi,on.
WHEREFORE, Edward Zimmer, Administrator of. the Estate of
Albert Zimmer, Deceased, demands judgement against Defendants-
Doctors, Alfano Salvatore, M.D., and Jon A. Dubin, D.O., jointly
and/or severally together with other Dttfendant (s) herein, in an
amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, plus
interest and costs of suit.
COUNT II
P~AINTIFF v. DEFENDANT-HOSPITAL
30. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as though set
forth at length herein.
31. While Decedent was under the aforesaid care, custody,
control and supervision of Defendant-Hospital, said Deeendant
directly and/or through its agents, servants, or employees, some of
whom may have been or were Defendant-Doctor(s) named herein, was
careless and negligent in that it;
(a) failed to have proper rules, regulations, procedures or
systems in place as indicated and required by both state law and
voluntary institutional and accrediting agencies regarding the care
and treatment rendered to Decedent while he was treated therein;
, (b)
properly
had actual or constructive knowledge that it failed to
select, train and supervise its agents, servants,
employees and staff personnel who treated Decedent while he was a
patient under its care, supervision and/or control;
(c) had actual or constructive knowledge that it fai~ed to
monitor the competenuy of members of its medical staff, the
adequa9Y of its patient treatment, and toe adequacy of the
equipment available for Decedent's treatment, particularly as to
the skill (II) of Defendant-Doctor to perform the noted treatment
and/or sllrgery on said Decedent;
(d) had actual or constructive knowledge that it failed to
have prcper medical and surgical review procedures in. place so that
it could obtain knowledge regarding the Defendant-Doctor's
performance and his compliance with established hospital
procedures;
(e) had actual or constructive knowledge that it failed to
discharge those doctors and nurses whose medical service and skills
fell below the general recognized standards of acceptable medical
services and skills before they came into contact with Decedent;
(f) failed to treat Decedent in accordance with accepted
medical and hospital practice, particularly the recognition,
control and treatment of infectious diseases, under the specific
circumstances and during the medical care noted aforesaid;
(g) failed to exercise proper IIkill, diligence and due care
under the specific circumstances and during the medical care of
Decedent noted aforesaid;
(h) faJ,led to adhere to the standard(s) of medical care in
the community here applicable under the specific circumstances and
medical care of Decedent noted aforesaid;
(i) failed to otherwise adhere to the pertinent, treatment,
evaluation and diagnostic procedures as one would reasonably and
ordinarily expect from medical institutions in the business of
Defendant-Hospital under the specific circumstances and during the
medical care of Decedent noted aforesaid;
(j) failed to exercise that degree of skill, care and
treatment and/or possess that degree of knowledge and competence,
ordinarily possessed by other hospitals under the specific
circumstances and during th'l medical care of Decedent noted
aforesaid; and
(k) to the extent that Defendant-Doctors were the agents or
employees of Defendant-Hospital, plaintiff hereby re-alleges and
incorporates by reference thereto sub-paragraphs 29 (a) through
(v), inclusive, as if the same were set forth at length herein.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
Albert Zimmer, Deceased, demands judgement against Defendant, Holy
.
Spirit Hospital of the sisters of Christian Charity, jointly and/or
severally with other Defendants herein, in an amount in excess of
Twenty-Five Thousand '($25,000.00) Dollars, plus interest and costs
of suit.
COUNT I II
WRONGFUL DEATH
32. .Piaintiff incorporates by reference all the allegations
set forth in paragraphs one (1) through thirty-one (31), inc!usive,
as though the same were more fully set forth at length herein.
33. Plaintiff, Edward Zimmer, is the Executor of the Estate
of Albert Zimmer, Deceased, having been appointed by the Register
of Wills of Cumberland County.
34. This civil action is brought pursuant to the Pennsylvania
Wrongful Death Act, 42 Pa. C.S. Sec. 8301 ~ ~ and Rule 2201
~ ~ of the PA Rules of Civil Procedure.
35. Plaint iff's Decedent, Albert Zimmer, did not bring any
other aotion during his lifetime and no other action for the death
of said Decedent has been commenced against the Defendants herein
or by any other persons.
36. The plaintiff's Decedent, Albert Zimmer, waG survived by
the following testamentary beneficiaries I
~
Relationship
Brother
Edward Zimmer
, Michael C. Zimmer
John E. Zimmer
Brother
Brother
NanCY Zack
Sister
37. This civil action is brought to recover, o,n beh'alf ot'the
.....
.,
.
.
said testamentary beneficiaries, all damages legally available
under the said act of assembly.
'38. As a dire~t and approximate 'result of the death of the
Plaint iff's Decedent, Albert Zimmer, the testamentary beneficiaries
have suffered pecuniary losses and have incurred medical bills and
funeral expenses.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
Albert Zimmer, Deceased, demands judgement against Defendants, Holy
Spirit Hospital of the Sisters of Christian Charity, Alfano
Salvatore, M.D., and Jon A. Dubin, D.O., jointly and/or severally,
in an amount -in excess of Twenty-Five Thousand ($25,000.00)
Dollars, plus interest and costs of suit.
COUNT IV
mmVIVAL ACTION
39. Plaintiff incorporates by reference all the allegations
set forth in paragraphs one (1) through thirty-eight (38) as though
the same were more fully set forth at length herein.
40. In his capacity as personal representative of the Estate
of Albert Zimmer, the Plaintiff brings this civil action pursuant
to the Pennsylvania Survival Act, 42 Pa, C.S. Sec. 8302 ~ ~
41. 'l'his civil action is brought to recover for the Estate of
Albert Zimmer, all damages legally recoverable under the said Act
of Assembly.
42. As a direct and proximate result of the carelessness,
negligence and reckl~ss conduct, as aforementioned, the Plaintiff's
Decedent, Albert Zimmer, died due to the injuries he sustained as
a result of complication~ from Defendants' care.
4:3. As a dh'ect and proximate result of the careless and
.
..
.
'.
, .
VERIfICA'Umi
SDWAAD ~XMMBR/
is the pllAintiff in this action and \JerUies
that the statements made in the foregoing pleading are true and
correct to the best of plaintiff.' S knowledge, information and
belief.
~he undersigned understands that the statements therein
are made subject to the penalties of'18 Ps.. C. s. Section .4904
relating to unsworn falsification to authorities.
.
Date; ~ - //)...., t1f1
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....J\
EDWARD ZIMMER, Administrator
of the Estate of Albert
Zimmer, Deceased,
PlaIntiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
t
HOLY SPIRIT HOSPITAL OF THE . I
SISTERS OF CHRISTIAN CHARITY,
ALFANO SALVATORE, M.D., and
JON A. DUBIN, D.O.,
Defendant.s
NO. 96-0744 CIVIL TERM
CIVIL ACTION - LAW
IN R~l DEFENDANTS' PRELIMINARY OBJECTION
TO PLAINTIFF'S COMPLAINT
BEFORE SHEELY. P.J.. nOFFER. J.. AND HESS. J.
OPINION AND ORDER OF COURT
This present action is a medical malpractice claim brought
,by Plaintiff Edward Zimmer as Administrator of the Estate of
Albert Zimmer against Defendant Holy Spirit Hospital of the
Sisters of Christian Charity (hereinafter Holy Spirit), Alfano
Salvatore, M.D., and Jon A. Dubin, D.O. All Defendants are
filing Preliminary Objections to Plaintiff's Complaint on the
grounds that Plaintiff has failed to allege the requisite factual
specificity and has failed to state a claim of lack of informed
consent upon which relief can be granted. We heard argument on
April 17, 1996.
f.~
Plaintiff Edward Zimmer, Administrator of the Estate of
Albert Zimmer, filed a complaint in medical malpractice on
February 12, 1996. Count I is a claim of negligence against
Defendants Alfano Salvatore, M.D. and John A. Dubin, D.O. Count
II is ~ claim of corporate negligence against Holy Spirit. Count
III is a wrongful death claim and Count IV is a survival action
against all 'Defendants. Defendants filed Preliminary Objections
to Plaintiff's Complaint on Maroh 5, 1996.
The facts as they are set forth in Plaintiff's Complaint are
as follows. On February 14, 1994, Decedent Albert Zimmer arrived
at Holy Spirit Emergency room with complaints of fever, chills,
nausea, vomiting, night sweats, and muscular pain for the past
, four days. (Pl.'s Complaint at para. 16). Testing and
examinations revealed certain abnormal findings, including but
not limited tOI white blood cell counts, temperature,
hemoglobin, hematocrit, urinalysis, splenomegaly, and positive
blood cultures. ~ at para. 18. Decedent was discharged with
prescriptions for oral antibiotics and instructions to follow up
care with his family doctor. ~ at para. 19.
The final blood culture later reported as positive for
"Streptococcus SP." 1JL. at para. 20. On February 19, 1994,
Decedent was called by Defendant Doctors and a new prescription
was ordered. 1JL. at para. 21. On February 24, 1994, Decedent
was admitted to Harrisburg Hospital to rule out endocarditis.
~ ut para. 22, 23. Decedent was diagnosed with Subacute
Bacterial Endocarditis by the medical staff of Harrisburg
Hospital and remained hospitalized until March 7, 1994. (Pl. ' s
complaint at para. 24). Decedent continued to have chronic
problems related to Bacterial Endocarditis and eventually expired
as a result thereof on Septel1lber 9, 1995.1s;L. at para. 25..
2
"
DISCUSSION
Defendants raise several preliminary objections to
'Plaintiff's Complaint. Defendants allege that paragraphs 29(c),
(d), (h), (i), (1), (q), (r), and (u) of Count I as well as Count
II must be dismissed because Plaintiff's Complaint lacks
requisite factual specificity. Defendants also allege that
paragraph 29(e) should be dismissed with prejudice because
Plaintiff has failed to state a claim of lack of informed consent
upon which relief can be granted.
Under Pennsylvania law, "The material facts on which a cause
of action or defense is based shall be stated in a concise and
summary form." Pa.R.C.P. 1019(a). Because Pennsylvania is a
fact-pleading state, lOA complaint must not only give the
,defendant notice of what the plaintiff's claim is and the grounds
upon which it rests, but it must also formulate the issues by
summarizing those. facts essential to support the claim." Aloha
Tau Omeaa Fraternitv v. Universitv of Pennsvlvania, 318 Pa.super.
293, 298, 464 A.2d 1349, 1352 (1983).
In Connor v. Alleqhenv Gen. Hose., 501 Pa, 306, 461 A.2d 600
(1983), the Pennsylvania Supreme Court held that a proposed
amendment to a complaint arising out of alleged negligence in the
treatment of a hospital patient was not barred by the statute of
limitations. ~ The Court held that the amendment did not seek
to add new allegations of negligent acts by proceeding on a
,different theory but amplified one of the allegations of the
original complaint and simply specified other ways in whicH the
3
hospital was negligent. ~ Moreover, in a crucial footnote,
the Court offered the following warning: II If [defendant] did not
know how it 'otherwise fail [ed] to use due care and caution under
the circumstances,' it could have filed a preliminary objection
in the nature of a request for a more specific pleading or it
could have moved to strike that portion of appellant's
complaint." 501 Pa. 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983).
Thus, a defendant bears the responsibility of inquiring into
'general allegations of a plaintiff's complaint by filing
preliminary objections.
When considering preliminary objections in the nature of a
demurrer, "the Court must accept as true all well-pleaded
material facts in the complaint as well as all reasonable
inferences that may be drawn from those facts. II 0' Brien v.
Townshio of Raloho, 166 Pa.Commow. 337, 340, 646 A.2d 663, 665
(1994). Conclusions of law and unjustified inferences are not
admitted by the pleading. Greensoan v. U.S. Automobile Assoc.,
324 Pa.Super. 315, 318, 471 A.2d 856, 858 (1984). The role of
the trial court is "to determine whether or not the facts pleaded
. are legally sufficient to permit the action to continue." Coolev
v. East Norriton Townshio, 78 Pa.Commow. 11, 13 n.3, 466 A.2d
765, 767 n.3 (1983). According to the Pennsylvania Superior
Court, a preliminary objection in the nature of a demurrer should
only be granted in cases that are free from doubt. Britt v.
Chestn4t Hill Colleae, 429 Pa.Super. 263, 271, 632 A.2d 557, 560
(1993) .
4
On its own motion, or as an alternative to granting a
demurrer, a trial court may permit or require the amendment of a
pleading where the complaint is not inherently unsound but only
incomplete. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d
1180 (1990). Maddux v. pennsvlvania Deoartment of Aariculture,
35 Pa.Commow. 386, 386 A.2d 620 (1978). The Pennsylvania Supreme
Court has held that "the right to amend should not be withheld
where there is some reasonable possibility that amendment can be
accomplished successfully. II Otto v. American Mutual Ins. Co.,
482 Pa, 202, 205, 393 A.2d 450, 451 (1978).
Factual Soecificitv of Count I
Defendants argue that paragraphs 29 (c), (d), (h), (i), (1),
(q), (r), and (u) of Plaintiff's Complaint must be dismissed
because they lacK requisite factual specificity. Defendants
express concern over the conclusory nature of these allegations
and claim that they are entitled to know the facts upon which
Plaintiff bases these allegations. Thus, Defendants argue the
'allegations must be stricken for factual insufficiency.
The objectionable provisions of Plaintiff's Complaint are as
follows:
, 29. Plaintiff charges that Defendant-Doctors, jointl.y
and severally, were careless and negligent in there
aforesaid care and treatment of Decedent in that they:
. . .
(c) failed to adequately and effectively
treat Decedent's symptoms, including but not
limited to ordering cardiology and infectious
disease consultations;
(d) failed to timely diagnose Decedent's
condition;
5
(h) carelessly, improperly and ineffectively
administered nledications;
(i) failed to properly and adequately
monitor and administer appropriate
medications including, but not limited to
choosing oral ver/Jus I. V. antibiotics;
(1) ordered inappropriate medications!
(q) failed to appropriately interpret
obvious data, including but not limited to
lab values, vital signs and physical
symptoms;
(r) failed to adequately monitor and follow
the Decedent;
(u) failed to monitor the competency of staff members
and the adequacy of their patient treatment
assessments.
These allegations are incorporated by reference against Defendant
Holy Spirit in paragraph 31 (k) .
After viewing the aforementioned pleadings, we agree with
Defendants' allegations that these provisions are not specific
enough to give Defendants notice of what Plaintiff's claims are
and the grounds upon which they rest. More specifically,
Defendants should be apprised of how they "failed t.o adequately
and effectively treat Decedent's symptoms" in paragraph (c),
"carelessly, improperly and ineffectively administered
medications" in paragraph (h), "failed to properly and adequately
. monitor and administer appropriate medications" in paragraph (i),
"ordered inappropriate medications" in paragraph (j), "failed to
appropraitely interpret obvious data" in paragraph (q), "failed
to adequately monitor and follow the Decedent" in paragraph (r),
aJ;ld "failed to monitor the competency of staff members and the
adequacy of their patient treatment assessments" in paragraph
6
(u). Furthermore, the broad assertions of "including but not
limited to" should be stricken from paragrapha (e), (i), nnd ('I)
so Defendants are aware of which events are at illsuo in thin
suit. This Court believes that paragraph (d) is flutf icilllll IiInl~
need not be amended. Plaintiff haa 20 days to amrmd thofltl
provisions so that the facta easential to support thQ claim ft~e
stated in a more specific form.
Coroorate NeolioencQ
Defendants also object to Count II of Plaintiff's Complaint
which attempts to establish a cause of action against Dotondnnt
Holy Spirit under the theory of corporate negligence. Defondanta
allege that Plaintiff's pleadings are mere boilerplate
allegations which lack any essentiul facta to support the claim
of corporate negligence. Thu/J, Defendants argull that Count. It of
Plaintiff's Complaint must be dismissed for insufficient
speciUcity.
The relevant provisionB of Count II of Plaintiff'a Complaint
against Defendant Holy Spirit allege the followingl
31. While Decedent was under the aforellaid cAre,
custody, control and supervision of Defendant-Hoflpitlll" said
Defendant directly and/or through ita agents, ullrvant/J, or
employees, some of whom may have been or were Defendant-Doot~r(s)
named herein, was careless and negligent in that it;
(a) failed to have propnr rule/l,
regulations, procedures or uystern/J in place
as indicated and required by both Iltate law
and voluntary institutional and accrediting
agencies regarding the care and treatment
rendered to Decedent while he was troatlld
therein;
(b) had actual or constructive knowledge
that it failed to properly seloct, train and
I
j,
/,
,
I
.,
supervis,~ its agents, servants, employees and
staff personnel who treated Decedent while he
Was a patient Under its care, SUperVision
and/or Control;
lc) had actual or constructive knowledge
that it failed to monitor the competency of
members of its medical utaff, the adequacy of
its patient treatment, and the adequacy of
the equipment available [or Decedent' s
treatment, particularly au to the skills of
Defendant-Doctor to perform that noted
treatment and/or surgery on said Decedent;
ld) had actual or constructive knowledge
that it failed to have proper medical and
sugical review procedures in place so that it
could obtain knowledge regarding the
Defendant-Doctor's performance and his
compliance with established hospital
procedures;
(e) had actual or constructive knOWledge
that it failed to discharge those doctors and
nUl'ses whose medical service and skills fell
below the general recognized standards of
acCeptable medical services and skills before
they came into Contact with Decedent;
(f) failed to treat Decedent in aCcordance
with accepted medical and hospital practice,
particularly the recogniztion, control and
treatment of infectious diseases, under the
specific circumstances and during the medical
care noted aforesaid;
(g) failed to exercise proper skill,
diligence and due care under the specific
circumstances and during the medical care of
Decedent noted aforesaid;
(h) failed to adhere to the standard(s) of
medical care in the community here applicable
under the specific circumstances and medical
care of Decedent noted aforesaid;
(i) failed to otherwise adhere to the
pertinent, treatment, evaluation and
diagnostic procedures as one would reasonably
and ordinarily expect from medical
institutions in the business of Defendant_
HOSpital under the specific circumstances and
8
I
i
I
during the medical care of Decedent noted
aforesaid!
(j) failed to exercise that: degreo of okill,
care and treatment and/ol" pr;UiJUUfl thllt degree
of knowledge and competunCl!, onLi.nlll'ily
possessed by other hospitalu under tho
specific circumstances and <llII.1I1') tho medical
care of Decedent noted aforeunid! Ilnd
(k) to the extent that Defr.mdnnt -Doctors
were the agents or employeeo of Defendant-
Hospital, Plaintiff hen!by rt)-allegoll and
incorporates by reference thol"uto oub-
paragraphs 29 (a) through (v), incluoive, BS
if the same were sot fonh at J,ength herein.
WHEREFORE, Edward Zirnll1cE, AdminJ,l.ltrator of the
Estate of Albert Zimmer, Decenund, domilndo judgement
against Defendant, Holy Sph'it lIofJpital of the Sisters
of Christian Charity, joillt] y ,Ind/ol' n/~vorlllly with
other Defendants herein, in an arnount ill eXCflBS of
Twenty-Five Thousant ($25,000.00) lJollnl'lI, plus
interest and costs of suit.
Corporate negligence is a doctrine Ulldtlr which a hospital is
liable if it fails to uphold the propel" fllandard of oare owed the
patient. In Thompson v. Nason H0I1lL.., 527 1>n. 330, 591 A.2d 703
,(1991), the Pennsylvania Supreme Court cl.1flsificd a hospital's
duty into four general areas: (1) n duty to use reasonable care
in the maintenance of safe and acloquat.e facilities and equipment!
(2) a duty to select and r.etain only competent physicians; (3) a
duty to oversee all persons who practice medicine within its
walls as to patient care; and (4) a duty to formulate, adopt and
enfor-:::e adequate rules and pol.icit)fl to ensure quality care for
the patients. .l.d.... at 339, 591 A.2d at 707. In establishing
corporate negligence, 01 it .Is ncceflfl<lry to show that the hospital
had actual or constructIve knowledge of the defect or procedures
which created the harm. 01 J.d.,. lit 341, 591 A. 2d at 708. A
9
hospital's negligence must have been a substantial factor in
bringing about the harm to the injured party. ~
In Edwards v. Brandvwine Hosp., 438 Pa.Super. 673, 652 A.2d
1382 (1995), the Pennsylvania Superior Court explained that
Thomoson contemplates a kind of systemic
negligence, such as where a hospital know~
that one of its staff physicians is
incompetent but lets that physician practice
medicine anyway; or where a hospital should
realize that its patients are routinely
getting infected because the nursing staff is
leaving catheters in the same spot for too
long, yet the hospital fails to formulate,
adopt or enforce any rule about moving
catheters. . . Though broadly defined,
Thomos.Qll liability is still fault based.
.~ at 683, 652 A.2d 1386-87. A hospital's corporate negligence
should be measured against what a reasonable hospital under
similar circumstances should have done. ~
Plaintiff's Complaint makes broad boilerplate allegations of
cQrporate negligence. Plaintiff offers no facts to support the
oonclusion that Defendant Holy Spirit had actual or constructive
knowledge of the defect or procedures which created the harm or
that Holy Spirit's negligence was a substantial factor in
bringing about the harm. Instead, Plaintiff pleads a general
nonspecific count of corporate negligence which does not gl,ve the
Defendant notice upon which essential facts the cause of action
.rests. Consequently, because Plaintiff has failed to allege
sufficient facts to support a claim for corporate negligence
against Holy Spirit, paragraph 31 of the Complaint is stricken
with 20 days leave to amend.
Failure to State a Claim- Paraqraoh 29(e)
10
~
Finally, Defendants alleges that par~graph 29(e) of
Plaintiff's Complaint should be dismissed because Plaintiff has
failed to state a claim of lack of informed consent upon which
relief can be granted. Paragraph 29(e) alleges the following~
29. Plaintiff charges that Defendant-Doctors, jointly
and severally, were car.eless and negligent in their
aforesaid care and treatment of Decedent in that they:
(e) failed to advise Decedent as to
alternative treatments for his condition.
Plaintiff argues that Defendants are attempting to transform the
above provision into a claim for lack of informed consent when
this claim is actually based in negligence.
The law of informed consent rests on the notion that where a
patient is mentally and physically able to consult about his
condition, in the absence of an emergency, his informed consent
is a prerequisite to a surgical operation by his physician.
COODer v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). An
operation without informed consent is a technical assault, making
'the physician liable for any injuries, regardless of whether the
treatment was negl igently administered. .liL. Consent to, medical
treatment is valid if the physician disclosed all the facts,
risks, and alternatives that a reasonable man in the situation
w9uld deem significant in making a decision to undergo the
recommended treatment. ~
Pennsylvania Courts have consistently held that "the
doctrine of informed consent should continue to be limited in its
applicability to only those cases involving surgical or operative
medical procedures." Bover v. Smith, 345 Pa.Super. 66, 72, 497
11
'.
'A.2d 646, 649 (1965). Consequently, the Pennsylvania Superior
Court held that a medical malpxactice cause of action against a
plastic surgeon and radiologist tor treating a lump behind a
patient's ear with radiation did not implicate the doctrine of
i~formed consent even though the plaintiff was not informed of a
viable alternative to radiation therapy. Dible v. Vaoley, 417
Pa.Super. 302, 612 A.2d 493 (1992). The Superior Court reasoned
that "despite appellant's insistence that he was injured by lack
of information, the informed consent doctrine has never been
applied to situations in which the missing information was other
than that affecting a surgical and/or operative procedure
,actually performed." .I.Q.... at 306, 612 A.2d 496.
In the present case, Plaintiff asserts that Defendant
Doctors were careless and negligent in failing to advise Decedent
as to alternative treatments for his condition. At this stage,
it appears as if t.hat claim closely resembles a claim for lack of
informed consent because Plaintiff is focusing on Defendants
failure to recommend alternative treatment. If this claim is
based on the theory of informed consent, it should fail because
the context of the treatment is not in a surgical operation.
Giving plaintiff the benefit of the doubt that this claim is
aimed at Defendant's negligence in failing to undertake
alternative treatment, as opposed to giving the Decedent
alternative treatment options, we will allow Plaintiff 20 days to
amend the pleading to set forth the nature of those alternative
treatments. We m~ke this determination with the warning that an
12
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5. This paragraph is sped fically denied because it is a
conclusion of law to which no responsive pleading is required.
6. This paragr~ph is specifically denied because it is a
conclusion of law to which no responsive pleading is required. By
way of further answer, and in no way of in derogation of the
foregoing, this paragraph is specif ically denied.
By way of
further answer, Plaintiff's Complaint meets the factual specificity
required by Pennsylvania Law.
7. This paragraph is speoif ically denied because it is a
conclusion,of law to which no responsive pleading is required.
8. This paragraph is specifically denied because it is a
conclusion of law to which no responsive pleading is required. By
way of further answer, and in no way in derogation of the
foregoing, the allegations set forth in J?laintif f' s Complaint
provide Defendants with an adequate opportunity to defend, the
claims against them.
WHEREFORE, Plaintiff requests that this court, deny and dismiss
Defendants' Preliminary Objection alleging insufficient 13pecificity
in Plaintiff's Complaint.
9. Defendants' characteri Z~lt ions of the Gontents of
Plaintiff's Complaint, paragraph 29, are specifically denied
because the Complaint, being in writing, speaks for itself.
10. This paragraph is specifically, denied because it is a
conclusion of law to which no responsive pleading is required. By
way of further ;lnswer, an in no way in derogation of the foregoing,
Defendants' misconstrue the causes of action set forth in
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KREITHEN, BARON, VILLARI Ii. GOLOMB
BYIJOHN E. KUSTURISS, JR.
I.D. #28271 ,
1201 CHESTNUT ST., 10th FLOOR
PHILADELPHIA, PA 19107
(215) 563'-8286,
Attorney for Plaintiff
EDWARD ZIMMER, AdministiitO-r
of the Estate of Albert
Zimmer, Deceased
835 Ridgewood Drive
,Mechanicsburg, PA 17055
v.
1 IN THE COtJR'D OF COMMON PLEAS
1 'CUMBERLAND COUNTY
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NO.:
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HOLY SPIRIT HOSPITAL OF THE
SISTERS OF CHRISTIAN CHARI~X
North 21st Street
Camp Hill, PA 17011
and
ALFANO SALVATORE, M.D.
North 21st Street
Camp Hill, PA 17011
and
JON A. DUBIN, D.O.
North 21st Street
Camp Hill, PA 17011
"
, .
'JURY TRIAL OmMANDEP
,
CIVIL ACTION - COMPLAI~
1. . Plaintiff is Edward Zimmer, Administrator of the Estate
of Albert Zimmer, Decedent, duly appoi~ted by the Register oJ; Wills
of Cumberland County, who resides at 835 Ridgewood Drive,
Mechanicsburg, PA 17055.
2. J;lefendant, Holy Spirit Hospital of the Sisters of
Christian Charity, [hereinafter "Defendant-Hospital"], is a non-
profit Pennsylvania Corporation duly organized and existing under
and by virtue of the laws of the Commonwealth of Pennsylvania, with
its principal place of business located at the above, captioned
address.
3. Alfano Salvatore, M.D., (hereinafter referred to as
"Defendant-Doctor's)"J / is an adult individual and at all times
-,
.
,
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,
material and relevant hereto was a duly licensed and practicing
physician in the Commonwea~th of Pennsylvania with his prin~ipal
place cif business located at the above-captioned address.
4. Defendant, Jon A. Dubin, D.O. (hereinafter re'ferred to as
,
"Defendant-Doctor(s)"], is an adult individual and at all times
material and relevant hereto was, a duly licensed and practicing
physiCian in the Commonwealth of Pennsylvani,a with his principal
place of business located at the above-captioned address.
5. 'At all times material ,and relevant hereto, Defendant-
Hospital acted by' and through it's agents, servants, workmen,
and/or employees who were then and thereabout acting within the
course and scope of their employment with said Defendants, some of
whom may have been or were Defendant-Doctor(s) named herein.
6. On or a~out February 14/ 1994/ and thereafter, Decedent
employed Defendant-Hospital and Defendant-Doctors for compensation
to provide emergency/ surgical, hospital and associated medical
care and treatment to Decedent, and said Decedent thereby came
under the professional care, attention, control and treatment of
said Defendants.
, 7. By virtue of the aforesaid employment of said Defendants
by Decedent / a physician/patient relationship ensued and' said
Defendants did thereby agree to undertake the care and treatment of
said Decedent skillfully and in accordance with the prevailing
standards of medical practice and pertinent community, state and
national standards and codes.
8. In addition to the aforesaid, at all times relevant
hereto, Defendant-Doctors held themselves out to the public and to
"
Decedent, particularly I as spec::ialists in the field of emergency
medicine, infectioUs ,disease, internal medic~ne, and related
surgical and medical care, both inpatient and outpati~nt, and as
such, ~re and were to be held to a higher standard of care than a
general practitioner within his or her chosen specialty.
9. A~ all times material and relevant hereto, Defendant-
.
"
Hospite,l was engaged through their agents / servants, employees / and
those staff perf>onnel.. hereinafter identified in rendering
professiona~ and medical care to the public, and thereby hel~
i~seif out to the public generally, and to Decedent specifically,
as being skilled in the practice of medicine, hospital care and
surgery and thereby accepted responsibility of providing
appropriate and adequate medical, emergency medical, hospital and
surgical care to Decedent in accordance with the prevail ing
standards of medical, medical provider, and hospital practice and
pertinent community, state and national standards and codes.
10. Defendant-Hospital at all times material and relevant
hereto, owned, maintair.ed and controlled their patient rooms,
medical services / surgical theaters, treatment rooms and equipment /
,
I
, ,
all of which were opera-=.ed by and for said Defendants by their
agents / set:vants / workmen and/or employees who were then and
thereabout withir. the course and scope of their employment with
said Defendants and/or on the business of said Defendants, and/or
under the control and/or right of control of said Defendants.
11. At all times material and relevant here~o, Defendant-
Hospital had granted staff or other privileges to the above-named
Defendant-Doctor (s l to practice medicine and/or surgery ;to perform
radiological or other diagnostic examinations and/or studielll t.o
, perform and practice clinical me<;licine I and/or to use all. of the
facilities' and medical services' owned and controlled by said
Defendants.
12. At' all times material and relevant 'hereto, Defendant.-
Doctor(s) named aforesaid may have been or were employees and/or
resident physicians of Defendant-Hospital and, if so, were then and
.
.'
thereabout and within the course and scope of their employment with
said Defendant and/or ,on said Defendant/s business, and/or under
the control or right of control of said Defendant.
13. At all times material and relevant hereto/ the aforesaid,
Defendanl: _ Doctors may have been or were independent contractors who
through their acts and repreAentations, and/or acts and re-
presentat ions of Defendant _Hospital/had apparent / impl ied or
ostel)sible authority to act on behalf of said Defendants regarding
the care and treatment of Decedent, and, if so, said Decedent,
acting in good faith, had good reason to believe, and did actually
believe, that said Dei!endant-Doctor (s) possessed' such authority,
all of which caused Decedent to justifiably rely upon such
appearance of authority and to reasonably believe that Defendant-
Hospital and Defend<.nt-Corporation would be bound by the acts and
omissions of Defendant-Doctor(sl .
14. AS a direct result' of the aforesaid, said Defendants
accepted the responsibility for the care and treatment of Decedent,
and, in doing so, understood and assumed the duty to him to provide
safe factlities necessary for the proper practice of 'nursing,
medicine and surgery and to render competent, proper/ adequate and
"
appropriate medical, general medical/clinical medical, diagnostic /
nursing and/or other medical care and treatment, and to take
appropriate pr~ventive and cur~t ive measures to tr'eat said Decedent
and to avoid harm to him.
15. As a direct result of the aforesaid, said Defendanto had
a duty to Decedent to exercise ordinary care while he was c9nfined
to their facility and/or received treatment therein and/or was
,assigned to or under their care, which duties included, but is not
limited tOl providing proper medical, ~ursing, surgical, medical
facility and hospital ca,re; establishing and enforc ing by-laws,
procedures and rules which 'mandate proper medical, nursing,
surgical and hospital and/or medical facility care; hiring
competent medical personnel; competent nursing personnel; keeping
the hospital or facility free from ordinary hazards, defective
equipment and improper drugs; ensuring that all patients / including
Decedent, received adequate medical attention; having sufficient
",nd properly train~d nursing personnel, competent and able to
recognize a patient's condition; establishing and enforcing
procedures and systems to monitor their staff; and to ensure that
their patients a~e receiving proper care a~d treatment.
16. On February 14/ 1994/ Decedent presented to
Oefendant-Hospital Emergency room with chief complaints of fever,
chills, nausea, vomiting, night sweats and generalized muscular
pain for the past. four (4) days. His vi tal signs at this time were
temperature 102/ pulse 1.08, respirations 20 and blood pressure
155/75.
1. 7. On the aforenoted date / Decedent was seen and examined by
"
.
the aforenoted Bacterial Endocarditis and eventually expired as a
result thereof on September 9/ 1995.
26. As a result of the careless 'and negligent conduct of said
Defendants set forth herein, jointly and/or severally, Decedent
suffered severe, painful and permanent physical and mental
injuries, including but not limited tOl Subacute Bacterial
Endoc~rditis, respiratori distress, shortness of breath, sepsis,
irre~ersible damage to his heart valves, congestive heart failure,
extended .hospitalization, significant increase of the risk of h~,rm
that
he will/would
suffer complications,
injuries and/or
.,exacerbation of the aforesaid conditions and other related
conditions, severe shock to his nerves and nervous system, all of
'which caused Dececient great physical, mental and emot ional pain and
suffering and his eventual untimely death.
27. As a direct and proximate result of the aforesaid
carelessness and negligence of the aforesaid Defendants, jointly
~nd/or severally, Decedent,
(a) suffered the aforesai<;i severe / painful and permanent
injuries,
(b)
the like to
conditions,
required medical care and attention, supervision and
attempt the cure of / or otherwise. alleviate, his
(c) has been or will be prevented from attending his
normal duties, chores, activities and the like, and from assuming
gainful employment,
(d) has had his earning capacity and power materially
and adversely affected,
(e) has incurred medical and other expenses for his
care, treatment, supervision and the like, to effect a cure for, or
otherwise alleviate, his ~ondition,
(f) has suffered severe Fain and suffering and emotional
mental trauma, anguish, and. humiliation, with attendant
a:ld
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"
physical and mental nequelae, any or all of which may
be permanent in nature and/or continue indefin~tely into the
future;
. (9) suffered ,a pre~ature death/ and/or,
(h) was in other ways damaged and' injured to his great
detriment, all of which will be more fully proven at or before the
trial of this cause.
, COUNT I
. PLAINTIFf v. DEFENDJIi.rr-DOCTORS
28. plaintiff incorporates by reference thereto paragraphs
one (1) thrO\lgh twenty-seven (27) inclusive, as fully as though set
forth at length herein.
'29. plaintiff charges that Defendant-Doctors, jointly and
severally, were careless and negligent in there aforesaid care and
treatment of Decedent in that theYl
(a) failed to recognize and timely treat signs and
symptoms of an infection, particularly a bacterial endocarditis,
(bl failed to perform appropriate diagnostic tests to
access the seriousness of Decedent/s condition,
(c) failed
to adequately and effectiv,ely treat
Decedent / s symptoms / including but not limited to ordering,
cardiology and infectious disease consultations/
(d) failed to timely diagnose Decedent/s condition,
(e) failed to advise Decedent as to alternative
treatment~ for his condition;
(f) failed ::imel'y' admit Decedent to the hospital fOl;" IV
admin~stratic~ of antibiotics and/or otherwise timely administer
same;
(g) Jelayed adequate and appropriate medical treatment
until Decedent/s condition had markedly deteriorated;
'.
'.
(h) carelessly,
administered medications;
(i) failed to properly and, adequately monitor and
administer appropriate medications including, but not limited to
.
improperly
and
ineffectively
choosing oral versus I.V. antibiotics;
(j) failed to transfer Decedent o~ a timely basis to a
tertiary care center for appropriate care;
(k) failed to take int'o account Decedent's pre-existing ..
medical condi'tion when rendering treatment to him;
(l) ordered inappropriate medications;
(m) failed to recognize and take appropriate action as
Decedent/s condition deteriorated;
(n) failed to recognize the seriousness of Decedent's
c~ndition and high risk status;
(0) failed to properly communicate with each other and
other consultants 'and health care providers;
(p) ,failed to fully and/or properly examine Decedent and
evaluate his medical condition prior to ordering antibiotics and
instituting medical care;
(q) failed to appropriately interpret obvious data I
including but not limited to lab values, vital signs and physical
symptoms;
, .
(r) failed to adequately monitor and follow the
Decedent;
(s) failed to ensure that appropriate monitoring of
Decedent would be carried out to detect earliest manifestations of
,I
I
I
endocarditis and/or other infectious proces~es/ so as to ensure
.
.
early and aggressive treatment, before it became a serious threat to
" '
Decedent's life;
(t)' failed to recog,nize advanced warning'signs of the
progression of subacute bacterial endocarditis in Decedent;:
(u). failed to monitor the competency of staff members
, ,
,
and the adequ~cy of their patient treatment assessments; and
(v) were unduly and wrongly influenced by deced.ent 's
past medical history of percodan and heroin addition.
WHEREFORE, Edward Zimmer, Administrator o,f the Estate of
. Albert Zimmer, Deceased, demands judgement against Defendants-
Doctors, Alfano Salvatore, M.D., and Jon A. Dubin, D.O., jointly
and/or severally together with other Defendo:nt (s) here,iri, in an
amount i.n excess of Twenty-Five Thousand ($25~000.00) Dollars, plus
interest and costs of suit.
COUNT II
PLAINTIFF v. DEFENDANT-HOSPITAL
30. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as though set
forth at length herein.
.31. While Decedent was under the aforesaid care, custody,
control and supervision of Defendant-Hospital, said Defendant
directly and/or through its agents, servants, or employees, some of
whom may have been or were Defendant-Doctor(s) named herein, was
careless and negligent in that it;
(a). failed to have proper rules, regulations, procedures or
systems in place as indicated and required by both state law and
voluntary institutional and accrediting agencies regarding the care
and treatment rendered to Decedent while he was treated therein;
(b)
properly
had actual or constructive knowledgE! that it failed"to
select, train and 6'.lpervise its agent~1 servants,
, I_~
, ,
, "
employees and staff personnel who treated Decedent while he was a
p~~Lent under its care, supervision and/or control,
(c) had actual or constructive knowJ.edge that it failed to
'"nnLtor the competency of members of its medical 'stElff, the'
adequacy of its pat ient trea,tment, and the adequacy of the
I'qll.Lpment avai lable for Decedent / s treatment / particularly as to
the skill (s) of Defendant-Doctor to perform the noted treatment
and/or sur~ery on said Decedent,
(d} had actual or constructive knowledge that it failed to
have proper medical and surgical review procedures in place so that
it could obtain knQwledge regarding the Defendant-Doctor's
performance and his compliance' with established hospital
pr.ocedures,
(e) had actual or constructive knowledge that it failed to
discharge those doctors and nurses whose medical service and skills
fell below the general recognized standards of acceptable medical
services and skills before they came into contact with Decedentl '
(f) failed to treat De;cedent in accordance with accepted
medical and hospital practlce/ particularly the recognition,
control and treatment of infectious diseases, under the specific
circumstances and during the medical care noted aforesaid,
(g) failed to exercise proper skill, diligence and due care
under the specific circumstances and during the medical care of
Decedent noted aforesaid, .
(h) failed to adhere to the standard(s) of medical care in
the community here applicable under the specific circumstances and
medical care of Decedent noted aforesaid;
(i) failed to otherwise adhere to the pertinent, treatment,
evaluation and diagnostic procedures as one would reasonably and
ordinarily expect from medical institutions in the business of
Defendant-Hospital under the specific circumstances and during the
medical care 0: Decede~t no~ed aforesaid;
(j) failed to exercise that degree of skill, care' and
treatment and/or possess that degree of knowledge and competence,
ordinarily possessed by other hospitals under the specific
circumstances and during the medical care of Decedent noted
,lforesaid; and
\K) to the extent that Defendant-Doctors were the agents or
employees of ~efendant-Hospital, Plaintiff hereby re-alleges and
incorporates by reference thereto sub-paragraphs 29 (a) through
(v), inclus i ve / as if the same were set forth at length herein.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
,Albert Zimmer, Deceased, demands judge~e~t against Defendant, Holy
...~
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spir.it Hospital of the Sisters of Christian Charity, jointiy and/or
severally ,with other Defendants herein, in an amo\.lnt in ,excess of
'l'wenty.,Five Thousand ($!2 5/:000.00) DoHars / plus interest and costs"
of suit.
,
~
WRONGFUL DEATH
32. Plaintiff incorporates by reference all the allegations
set forth in paragraphs one (1) througt thirty-one (31) / inclusive,
..
as though the same were more fully set forth at length herein.
33. plaintiff, Edward Zimmer, is'the Executor of the Estate
of Albert Zimmer, Deceased, having been appointed by the Register
of Wills of Cumberland County.
34. This civil action is brought pursuant to the pennsylvania
Wrongful Death Act, 42 Pa. C.S. Sec. 8301 ~ ~ and Rule 2201
~ ~ of the PA Rules of Civil Procedure.
35. Plaintiff/s Decedent, Albert Zimmer, did not bring any
other action during his lifetime and no other action for the death
of said Decedent has been commenced against the Defendants herein
or by any other persons.
36. The plaintif f / S Decedent, Albert Zimmer, was survi'ved by
the following testamentary beneficiaries 1
Edward Zimmer
Relationshi'O
Brother
~
Michael C. Zimmer
Brother
.,
John E. Zimmer
Nancy Z,ack
Brother
Sister
37. This civil actioll is brought to recover, on behalf qf the
"
, I' '
said testamentary benef iciaries, all damages l'ega:lly' available
under the sa1d act of assembly.
38. AS' a direct and approximate result. of the death of th,,:
Plaintif f' s Decedent / Albert Zimmer., the testamentary beneficial;'J.es
have suffered pecuniary losses and have incurred medical bills and
funeral expenses.
WHEREFORE, Edward Zimmer, Administrator of ,the" Estate of
Albert Zimmer , Deceased, demands judgement against Defendants, Holy
Spirit Hospital of the Sisters of Christian Char~ty, Alfano
Salvatore, M.D., and ~on,A. Dubin, D.O" jointly and/or severally,
in an amount in excess of Twenty-Five Thousand ($25,000.00)
Dollars, plus interest and costs of suit.
COUNT ....lY
SURVIVAL ACTION
39. Plaintiff incorporates by reference all the allegations
set. forth in paragraphs one (1) through thirty-eight (38) as though
the same were more fully set forth at length herein.
40. In his capacity as personal representative of the Estate
of Albert Zimmer, the Plaintiff brings this civil action pursuant
to the Pennsylvania Survival Act, 42 Pa. C.S. Sec. 8302 ~ ~
41. This civil action is brought to recover for the Estate of
Albert Zimmer / all damages legally recoverable under the said Act
of Assembly.
42. As a direct and proximate result of the carelessness,
negl igence and reckless conduct, as aforementioned, the Plaintiff's
Decedent, Albert Zimmer, died due to the injuries he sustained as
iJ resul t of complications from Defendants' care.
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43. As a di:oect andprcximate result of the careless and
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V~RIFIC)'TION
correct
to
the
best
is the plai~tifr ;n this action and ve~ifi~8
made in the foregoing pleading I/lre true and
knowledge I information' and
that the ,statements therein
of 18 Pa. C. S. Section 4904
of
plaint if f' s
understands
EDWARD ZIMMER.
the statements
that
belief.
.
are
made
relating
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Date: )...,/~... 9~
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which a caus~ of action or doefense is based . . .." in" ,. a
concise and summary form." Pa.R.Civ.P. 1019(a). As such,
Pennsylvania is regarded as a fact-pleading jurisdiction. ~,
~/ Alpha Tau Omeoa Fraterl'litv v; University of Pennsylvania, 319
Pa. Super. 293/ 464 A.2d 1349, 1352 (1983). However, a complaint
is ~ required to be an all inclusive narrative of the events
underlying the claim, nor is the Plaintiff obliged to identify the
legal theories underlying the claims. Weis v. Eouibank, 313 Pa.
Super. 446, 460 A.2d 271, 275 (1983), DelConte v. Stefonick, 268
Pa. Super 572. 408 A.2d 1151/ 1153 (1979) I Mavo v. Lichterwalner,
125 Pa. Cmwlth. 137, 557 A.2d 798/ 800 (1989). Moreover, it is
axiomatic that Plaintiff's Complaint should not plead evidentiary
facts. Goodrich-Amram 2d 11019 (a) 16. A pleading m\lst merely
contain all of the ultimate facts necessary to support the elements
of a cause of action or defense. Commonwealth Dent. of Transn. v.
Shinlev Humble Oil Co., 29 Pa. Cmwlth. 171/ 370 A.2d 438 (1977).
To require any more factual averments than this would be to require
a narrative. such a requirem.ant is unnecessary and would be
one~ous in the instant case / where the facts supporting Plaintiff's
claims are already in the possession of Defendants via medical
records Defendants or agents of Defendants authored and/or
compiled.
The Courts of this Commonwealth have repeatedly held that
there is no requirement for a. plaintiff to specifically plead.
matters about which the objecting, parties have equal or better
knowledge. iPiladelnhia County Intermediate Unit No. 26 v. Cmwlth.
3
Deot. of Ed., 60 Pa. Cmwlth. 546/ 432 A.2d 1121, 1126 (1981).
Additionally, Pa.R.Civ.P. 1028(a) speaks of pleadings, and not
parts thereof, in permitting a party to file preliminary
objections. As such, this Court must review Plaintiff/s Complaint
as a whole, and not piecemeal as Defendants advocate. Hock v. L. B.
Smith. Inc., 69 D. Ii. C. 2d 420 (1974), Bartanus v. Lis, 332 PF,I..
Super. 48, 480 A.2d 1178 (1984). Since Defendants' objections
attack only specific paragraphs of Plaintiff's Complaint, and not
the Complaint as a total pleading / the obj ections are unfounded and
should be denied.
Pa.R.Civ.P. 1019 (a) essentially requires Plaintiff to plead
sufficient material facts to enable Defendants to prepare, their
defense(s). D'Antona v. Hamcton Grindino Wheel Co./ 225 Pa. Super.
120/ 310 A.2d 307, 310 (1973). Beyond 'this, the lower courts of
Pennsylvania have been permitted broad discretion in determining
the amount of detail which must be averred for a complaint to be
deemed factually sufficient. Unitec;l Refrioerator Co. v. Aoolebaum,
410 Pa. 210/ 189 A.2d 253/ 255 (1963). However, the pleading of
evidentiary facts is prohibited, and considerable latitude is
permitted in pleading facts if they are within the knowledge of the
opponent / or lie as much wi thin the opponent / s knowledge as that ,of
the pleader. Goodrich-Amram 2d, sections 1019:5 and 1019(a): 1 &
2.
It is Plaintiff / s position that Defendants' objections to the
aforenoted paragraphs are unfounded 'and more the result o~ the
"pleading paranoia" that has gripped the defense bar in medical
4
malpractice actions since the Pennsylvania Supreme Court's comments
in footnote 3 of the opinion in COflnor v. Alle9heny General
Hosoital, 501 pa 306/ 461 A.2d 600 (1983) / rather thEm a legitimate
inability to f.ormulate defenses in response to the allegations of
negligence issues.
To require any more speci f icity in this medical negligence
Complaint than that which has been pled, or to require that degree
of specificity requested by Defendants, would necessitate that
Plaintiff plead facts eithel' exclusively or already known by the
Defendants I just as readily known to Defendants I known only by
medical expert", I or easily obtained by reading the preceding
paragraphs and subparagraphs of Plaintiff's Complaint.
Defendants dispute the following averments of paragraph 29 of
Plaintiff/s Complaint:
29. Plaintiff charges that Defendant-Doctors, jointly and
severally, were careless and negligent in [their]
aforesRid care and treatment of Decedent in that theYI
* . .
(c) failed to adequately and effectively treat
Decedent's symptoms, including but not limited to
ordering cardiology and infectious disease consultations I
(d) failed to timely diagnose Decedent/s condition,
. . .
(h) carelessly, improperly,
administered medicationsl
(i) failed to properly and adequately monitor
administer, appropriate medications including' but
limited to cr.oosing oral versus I.V. antibioticsl
and
ineffectively
and
not
. . .
(l) ordered inappropriate medications I
5
* . .
(q) failed to app~opriately interpret obvious data,
including but not limited to lab values, vital signs and
physical symptoms I
(rl failed to adequately monitor and follow the
Delledent I
* . .
(u) failed to monitor the competency of staff members
. and the adequacy of their patient treatment assessments I
,
Plaintif.f/s Complaint, paragraph 29.
,
Defendants should and do know the prevailing standards of
medical care here involved, as well as exactly what happened during
the diagnosis and treatment at issue, Defendants, not Plaintiff,
know the extent of experience which the Defendants possessed
regarding the particular treatments and medications administered
prior to them being utilized on Plaintiff/s Decedentl Defendants,
not the Plaintiff, possess the knowledge of the types of diagnostic
studies used before and during the treatment of Plaintiff's
Decedent, of the steps taken to interpret lab reports and other
such data, and of the steps taken to monitor Decedent, as well as
the competence of the staff members who treated hint.
If this Court chooses to require the standard of pleading
requested by Defendants, then Plaintiff would be requirfld to plead
medical expert evidence and testimony in the Complaint, or to
depose all witnesses, including Defendants and/or their agents,
before filing the Complaint. This would impose an intolerable and
burdensome obligation on the Plaintiff for no other purpose than t.o
allow Defendants to formulate defenses to facts which are known to
them or just as easily / if not more easily / discovered by the
6
Defendants as by Plaintiff.
The law of Pennsylvania does not
sanction ouch a standard.
Defendants also dispute paragraph 31 of Plaintiff / s Complaint,
which statesl
31. While Decedent was under the aforesaid care,
custody, control and supervision of Defendant-Hospital,
said Defendant directly and/or through its agents,
servants, or employees, some of whom may have been or.
were Defendant-Doctor(s) named herein, was careless and
negligent in that it;
(a) failed to have proper rules, regulations, procedures
or systems in place as indicated and required by both
state law and voluntary institutional and accrediting
agencies regarding the care and treatment rendered to
Decedent while he was treated therein;
(p) had actual or constructive knowledge that it failed
to properly select, train and supervise its agents,
servants, employees and staff personnel who treated
Decedent while he was a patient under its care,
supervision and/or control;
(c) had actual or constructive knowledge that it failed
to moni tor the competency of members of its medical
staff, the adequacy of its patient treatment, and the
adequacy of the equipment available for Decedent / s
treatment, particularly as to the skill (s) of Defendant-
Doctor to perform the noted treatment and/or surgery on
said Decedent;
(d) had actual or constructive knowledge that it failed
to have proper medical and surgical review procedures in
place so that it could obtain knowledge regarding the
Defendant-Doctor's performance and his compliance with
established hospital procedures;
(e) had actual or constructive knowledge that it failed
to discharge those doctors and nurses whose medical
service and skills fell below the general recognized
standards of acceptable medical services and skills
before they came into contact with Decedent;
(f) failed to treat Decedent in accordance with accepted
medical and hospital practice, particularly the
recognition, control and treatment of infectious
diseases, under the specific circumstances and during
the medical care noted aforesaid;
.
7
-",'
(g) failed to exercise proper skill, diligence and due
care under the specific 'circumstances and during the
medical care of Decedent noted aforesaid,
(h) failed to adhere to the standard\s) of medical care
in, the conlmunity here applicable tmder the specific
circumstances and medical care of Decedent noted
aforesaid,
(i) failed to otherwJ.se adhere to the pertinent,
treatment, evaluation and diagnostic procedures as one
would reasonably and ordinarily expect from medical
institutions in the business of Defendant-Hospital under
the speci f ic circumstances and during the medical care of
Decedent noted aforesaid;
(j) failed to exercise that degree of skill, care and
treatment and/or possess that degree of knowledge and
competence, ordinarily possessed by other hospitals under
the speci f ic circumstances and during the medical care of.
Decedent noted aforesaid; and
(k) to the extent that Defendant-Doctors were the agents
or employees of Defendant-Hospital, Plaintiff hereby re-
alleges and incorporates by reference thereto sub-
paragraphs 29 (a) through (v) / inclusive, as if the same
were set forth at length herein.
Plaintiff's Complaint, paragraphs 31(a)-(k).
Defendants claim that the averments of paragl.'aph 31 " .
. .
lack any supporting allegations whatsoever . . .". 'rhis is. not 'the
case.
In their Brief, Defendants do not address, nor even set
forth, the averments of paragraph 31(k) / which specifically
inoorporates all the averments of negligence made in paragraphs 29
(al through 29(v) and provides more than sufficient basis for the
allegations in paragraph 31, Again, Defendants are confusing the
requirements of oleadinqs with the purpose of discoverv and the
oroof needed at trial, and readir~ Plaintiff/s Complaint piecemeal,
rather than as a whole. ~ suora.
The averments of paragraph 31 are sufficiently ,specific to
8
meet the requirements of Pa.R.Civ.p. 1019(a),
Indeed, they are
likely ~ specific than Rule 1019(a) requires them to be.
Defendants, ,had they believed that Plaintiff fails to set forth a
cause of action in negligence, should have demurred to his claims
on that .ground. They have not done so.'
Plaintiff's Complaint sets forth, and notifies Defendants of,
the causes of action being brought again/3t them.
If more is
required than is pled' discovery will be required and Plaintiff
hereby respectfully requests same should this Court require him to
file an amended complaint.
B. Defendants' demurrer to paragraph 29 (e) of
Plaintiff's Complaint should be denied.
In ruling on prel iminary obj ections in the nature of a
demurrer, the Court must determine whether the facts averred are
sufficient to establish a legal cause of action.
Monti v.
Pittsburah, 26 Pa. Cmwlth, 490/ 364 A,2d 764 (1976). Preliminary
Objections in the nature of a demurrer admit as true all well
pleaded facts and inferences fairly deducible therefrom. Yania~
Biaan, 397 Pa. 316/ 155 A.2d 343 (1959), Sinn v. B4rd, 486 Pa. 146,
404 A.2d 672 (1979). Since the sustaining of a demurrer results .in
a denial of the pleader / s claim or a dismissal of his suit, a
preliminary objection in the nature of a demurrer should .be
sustained only in cases that clearly and without a doubt ,fail to
" Defendants' only "demurrer" in thi.s action is a. groundless
effort to ccl'vert the pure negligence claims of parilgraph 29 (e) i.nto
a claim for lack of informed consent/intentional tort. This claim
will be discussed infra.
9
IItate a claim for which relief may be granted.
schott v.
WelltinClho\lll8 Electric Corp/ 436 Jila. 279/ 269 A.2d 443 (1969). If
the facts as pleaded state a claim for which relief may be granted
under any theory of law, then there is sufficient doubt to require
the preliminary objection in the nature of a demurrer to be
rejected. packler v. Statf;! Emplovees' ~etlrement Bd., 470 Pa. 368/
371, 368 A.2d 673/ 675 (1977),
Paragraph 29(e) of Plaintiff/s Complaint states that;
29. Plaintiff charges that Defendant-Doctors, j6intly
and 'severally, were careless and negligent in (theirJ
aforesaid care and treatment of Decedent in that they;
* . .*
(e) failed to advise decedent as to alternative
treatments for his conditlon.
. . .
Plaintiff/s Complaint, paragraph 29(e).
Defendants attempt to transform the aforesaid portion of
Plaintiff/s negligence allegations into a claim for lack of
informed consent. Defendant / s arguments have absolutely no merit.
,
This is a negligence case. Indeed, paragraph 29/ in its entirety,
charges that
"
. Defendant-Doctors, jointly and severally,
.1
were careless and negligent in (there] aforesaid care and treatment
of Decedent
"
Plaintiff's Complaint, ,paragraph 29.
, .
If the facts pleaded in paragraph 29 (e) state a claim for
which .relief may be granted under Sl.Itl theory of law, then there is
sufficient doUbt to require the Defendants' preliminary objection
in the nature of a demurrer to be rejected. ~ packler v. S~ate
Emcloyment Retirement Board, sucra, 470 Pa. 368/ 371/ 368 A.2d 673'/
10
;-.~.I
675 (1977). Plaintiff does not have to state the legal theory or
theories behind the averments in his Complaint. ~ Weil~s v.
~uibank, supra, 313 Pa. Super. 446/ 460 A.2d 271, 275. The facts
pleaded in paragraph 29 (e) (in combination with the remainder of
paragraph 29 and the other paragraphs of the Complaint, ~ Hock v.
L.B. Smitl:).. Inc., su);>ra, 69 Pa. D & C,2d 420 (1974))/ at an
absolute minimum, state a claim for negligence. Defendants do not
disPLlte this fact, but instead attempt to convert a negligence
claim into an intentional tort claim so that they may more
conveniently demur to it, Their demurrer to paragraph 29(e) is
meritless and should be denied and dismissed.
IV. Conclusion
For the above reasons, Plaintiff respectfully submits that the
Complaint is sufficiently specific under Pa.R.Civ.P. 1019(a) so as
to allow Defendants to formulate and plead their defenses, and that
Defendants' Preliminary Objections for alleged lack of specificity
should be denied and dismissed. Alternatively, Plaintiff requests
that additional discovery be completed before he should be required
to file an Amended Complaint. Defendants' demurrer to paragraph
29 (e) has no merit, as the referenced paragraph, at an absolute
minimum, sets forth or supports a cause of action for negligence
under existing law, and is therefore legally sufficient.
Defendants' demurrer to paragraph 29(e) should therefore be denied
and dismissed.
11
.
Respectfully submitted,
I
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KREITHEN, BARON, VILLARI Ii. GOLOMB
BYIJOHN E. KUSTURISS, JR.
I.O. 1128271, .
1201 CHESTNUT ST., lOth FLOOR
PHILADELPHIA, 'PA 19107 :
(2'15) 563'.'82A6"""
Attorney for plaintiff
"
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EDWARD ZIMMER, Administrator t
of the Estate of Albert t
Zimmer, Deceased t
835 Ridgewood Drive ' :
Mechanic~burg, PA 17055 t
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IN THE COUR~ OF COMMON PLEAS
. CUMBERLAND COUNTY
NO.1
v.
"
HOLY SPIRIT HOSPITAL OF THE .
SISTERS OF CHRISTIA.~ CP~~I~Y
North 21st Street
Camp Hill, PA 17011
and
ALFANO SALVATORE, M.D.
North 21st Street
Camp Hill, PA 17011
, and
JON A. DUBIN, D.O.
North 21st Street
Camp Hill, PA 17011
. .
, ,
.' '
JtTRY TRIAL DEMANDED
..
CIViL ACTION - COMPLAINT
1. . plainti ff is EdwaX'd Zimmer / Administrator of the' Estate.
of Albert Zimmer, Decedent / duly appointed by the Register of Wills
of cumberla~d County, who resides at 835 Ridgewood Drive,
Mechanicsbura, PA 17055.
2. De:endant, Holy Spirit. Hospit.al of the Sist.ers of
Christian Charity', [hereinafter "Defendant-Hospital"], is., a non.
profit pennsylvania Corporation duly organized and existing under
and by virtue of the laws of the Commonwealth 'of pennsylvania, with
\
its principal place of business located at tpe above captioned
address.
3. Alfano Salvatore, M.D., [hereinafter referred to as
"Defendant-Doctor(s)") /
is an adult individual and at all times
\
,
.
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.
material a~d relevant hereto was a duly licensed a~d practicing
physician in the Commonwea~th of Pennsylvania with his prin~ipal
,. place, 0; budn~ss locattld at the above-captioned ad~ress.
4. Defendant, Jon A. Dubin, D.O'. [hereinafter re'ferred to as
.
"Defendant -Doctor (s) "], is an adul t individual and at all times
material and relevant hereto was, a duly license~ and practicing
physician in the 'Commonwealth of Pennsylvani~ with. his principal
place of business located at the above-captioned address.
S. . At all times material ,and relevant hereto, Defendant-
, .
Hospital acted by and through it's agents, serva~ts, workmen,
and/or employees wh~ were then and thereabout acting within the
course and scope of their employment with said Defendants, some of
'whom may have been or were Defendant-Doctor(s) named herein.
6. On or about February 14/ 1994, and thereafter, Decedent
employed Defendant-Hospital and Defendant-Doctors for compensation
to provide emergency/surgical/hospital and associated medical.
care and treatment to Decedent, and said Decedent' thereby came
under the p~ofessional care, attention, control and treatment of
said Defendants.
7. By virtue of the afQ~esaid employment of said Defendants
.' by Decedent, a! physician/patient relationship ensued and said
Defendants did thereby agree to undertake the care and treatment of
said Decedent skillfully and
standards of medical practice
in accordance with the prevailing
\
and pertinent community, state and
national standards and codes.
8. In addition to the aforesaid, at all times relevant
hereto, Defendant-Doctors held themselves out to the public and to
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.
,
,
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.-
, '
Decedent, particularly, as apecialists in the field of emergency
medicine, in!ectious ,disease, internal medic~ne, and related
~:..~ : surgical and, medical care, both !npat!ent and out pat ie.nt, and as
such, ~re and were to be held to a higher standard'of care than a
.
general practitioner within his or her chosen specialty.
9. At all times material and relevant hereto, Defendant-
'. '
,
Hospica,l was engaged through their agents, servants, employees, and
those staff personnel.. hereinafter identified in rendering
profess ior:!l~ and medical care to the public / and ,thereby hel:i
it-sel f out to ,the public generally/and to Decedent specifically,
as being skilled in the practice of, medicine, hospita;J. care and
surgery and thereby accepted responsibility of providing
appropriate and adequate medicai, emergency medical, hosoital and
surgical care to Decedent in accordance with the prevailing
standards of medical, medical provider, and hospital practice and
pertinent community, state and national standards and codes.
10. Defendant-Hospital at all times material and relevant
hereto, owned, maintair.ed a:ld controlled their patie:'.t rooms,
medical services, surgical theaters / treatment rooms and equipment,
all of which were opera:ed by a:'lo for said Defendants by their
,
,
agents, servants, workmen and/or employees 'who were then and
thereabout within the course and scope of, their employment with
said Defendants and/or on the business of said Defendants, and/or'
, . \
under the control and/or right of control of said Defendants.
11. A': all times material a:1d relevant hereto, Defenda:'lt.
Hospital had granted staff or other privileges to the above-named
Defendant -Doctor (s) to pract ice medic ine and/or surgery j to perform
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,
,
.
....,.
"
, .'
radiological or ~ther diagnostic examinations and~or ~tudiesl to
,perform and practice c~lnical medicine;, and/or to use all, of the
facilities, and meaical, services' owned and controlled by' said
. Defenaants.
.
12. At' all times material and relevant hereto, Defendant-
Doctor(s) named afores~id may have ,been or were employees and/or
resident physicians of Defendan~-H05pital and, if so, were then and
thereabout and within the course and scope of their employment with
said De~endant and/o, ,on said Defendant's business, and/or under
the control or right of ~ontrol of said Defendant.
13. At all times material and relevant hereto, the aforesaid-
.
Defendant-Doctors may have been or were independent contractors who
.through their acts and representations, and/or acts and re-
presentations of Defendant-Hospital, had apparent, implied or
ostensible authority to act on behalf of said Defendants regarding
the care and treatment of Decedent, and, if' so, said Decedent.,
acting in good f~ith, had good reason to believe, and did actually
believe, that said Defendant-Doctor(s) possessed such authority,
all of which caused Decedent to justifiably rely upon such
appearance of authority and to reasonably believe that Defendant-
,
Hospital and Defendant-Corporation would be bound by the acts and
omissions of Defendant-Doctor(s) .
14. Jl.s a direct result of the aforesaid, said Defendants
. \
accepted the responsibility for the care and treatment of Decedent,
and, in doing so, understood and assumed the duty to him to provide
safe facilities necessary for the proper practice of nursing,
medicine and surgery and to render competent, proper, adequate,and
\
'.
appropdate medical/general medical, clinical m~dical, diagnostic /
nursing and/or other medical care and treatment, and to take
appropriate pr~ventive and cur~tive measures to tre~t said Decedent
and to avoid harm to him. .
15. As a direct result of the aforesaid, said Defendants had
a duty to Decedent to exerci~e ordinary care wbile he was c~~fined
" .
to their facility and/or received treatment therein and/or was
,assigned to or under their care, which duties included, but is not
limited tOl providing proper medical, ~ursing, surgical, medical
facility anq hospital ca,re; establishing and enforcing by-laws,
procedures and rules which -mandate proper medical, nursing,
surgical and hospital and/or medical facility care; hiring
competent medical personnel; competent nursing personnel; keeping
the hospital or facility free from ordinary hazards, defective
equipment and improper drugs; ensuring that all patients, including
Decede~t, received adequate medical attention; having sufficient.
and properly trained nurs ing personnel, competent and able to
recognize a patient'S condition; establishing and enforcing
procedures and systems to monitor their staff; and to ensure that
their patients are receiving preper care a~d treatment.
, ,
16. On Feb'ruary' 14, 1994/ Decedent presented to
Defendant-Hospital Emergency room with chief complaints of fever,
chills, nausea, vomiting, night
pain for the past four (4) days.
sweats and', generalized' muscular
\
His vital signs at this time were
temperature 102, pulse 108/ respirations 20 and blood pressure
155/75.
17. On the afore noted date. Decedent was seen and examined by
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,
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,
.
.
"
Defendant-Doctor(s) in Defendant-Hospital's Emergency o'epartment.
18. "While under the care of Defe:Jdant-Hospital Emergency
Departmer;t" Decedent's testing and e.xamination (s) :r:eveal.ed certain
abnormal findings, including but not limited tOl White Blood Ceil
counts,
Temperature,
Hemoglobin,
Hematocrit,
urinalysis,
splen~megaly and positive blood cultures.
19. Following treatment and evalua'tion, inclusive of' the
initiation of blood cultures, Decedent was discharged home on
February 14/ 1994 by Defendant-Hospital and D~fendant'Doctors with
prescriptions for,oral antibiotics and ins~ructions for follow up
care ,with his family doctor.
20. At 7:30 a.m. on February 15/ 1994,' the gram !ilmear of
Decedent's blood cul ture was "resulted as "Gram- :?osit i ve Cocci
StreptococCl.:s-Like" / with the final blood culture later reported as
positive for "Streptococcus SP". (Sangui~ II).
21. O~ February 19/ 1994/ Decedent was called by Defendant~
Doctor(s) and a new prescription was ordered changing his
medication from oral Cipro to oral Keflex.
22. On February 24, 1994/ Decedent was admitted to Harrisburg
Hospital with positive blood cultures for streptococcus sanguis II,
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and a new heart'murmur consistent with aortic insufficiency.,
23. The plan on admission to Harrisburg Hospital was to rule
out endocarditis.
24. Decedent
with \subacute
Bacterial
diagnosed
was
Endocarditis by the medical staff of Harrispurg Hospital, and as a
result remained hospitalized there until March 7, 1994.
25. Ce~edent continued to have chronic problems related to
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the aforenoted Bacterial Endocarditis and eventually ex~ired as a
result th~reof on September 9/ 1995.
26.
As a result of the
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careless 'and negl,igent conduct of said
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jointly and/or' severally, 'Decedent
Defendants set forth herein,
suffered severe, painful and permanent physical and mental
,injuries,' including but not limited to I Subacute Bact'erial
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Endocarditis, respiratory distress,' shortnes~ of breath, sepsis,
irreversible damage to his heart vc.l yes I congest i ve heart failure,
extended,hospitalization; significant increase of the risk of harm
that' he will/would suffer complications /
injuries
and/or
-exacerbation of the aforesaid conditions and other related
conditions; severe shock to his nerves and nervous system, all of
which caused Decedent great phys{cal, mental and emotional pain and
suffering and his eventual untimely death.
27. As a direct and proximate result of the aforesaid'
carelessness and negligence of the aforesaid Defendants, jointly
.
and/or severally, Decedent,
(a)
suff~re:.: the aforesaid severe/ painful and permanent
injuries,
(b)
the 1 ike to
conditions,
reauired medical care and attention, suoervision and
attempc ~he cure of, or otherwise' at"leviate / his
,
,
(e) has been or will be prevented from attending his
normal duties, chores, activities and the like, and from assuming
gainful employment,
(dl
and adversely
,
has had his earning capacity,and pO',rer mat~rially
aff'!!ctec; \,
,
(el has incurred medical and other expenses for his
care, treat~ent, suoervision and the like, to effect a cure for, or
otherwise alleviate, his condition;
and
(fl
m~mtal
has suffered severe pain and suffering and emotional
~rauma. a~guish, and humiliation, w~th attendant
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_ (g) suffered ,a pr~Tature death, and/or,
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(h) was in other'waye damaged and' injured to his great
detriment, all of which will be more fully proven at or before the
trial cif this cause. ' .
COUNT I
, PLAINTIFF v. DEFENDANT-DOCTORS
28. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as though set
forth at length herein.
'29. Plaintiff charges that Defendant-Doctors, jointly and
severally, were careless and negligent in there aforesaid care and
treatment of Decedent in that theYl
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(al failed to recognize and timely treat signs and
symptoms of an infection, particularly a bacterial endocarditis;
(bl failec to perform appropriate diagnostic tests to
access the seriousness of Decedent's condition,
(c) failed to adequately and effectively treat
Decedent/s symptoms, including but not limited to ordering
cardiology and infectious disease consultations;
(d) failed to timely diagnose Decedent's condition,
,
(e) failp.d to advise Decedent as to alternative
treatments for his condition;
(f)
failed timely admit Decedent ~ the hospital for IV
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of an:ibiotics and/or otherwise timely ad~inister
adminJ,straticr.
same,
(gl uelayed adequate and appropriate medical treatment
',until Decede;,.::' s cor.dition had markedly deteriorated;
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(h) carelessly,
administered medications;
(i) fai:t.ed to properly and: adequately monitor and
improperly
and
'in'eftectively
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administer appropriate medications including, but not limited to
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choosing oral versus r. V. al".t ibiotic~;
(j) failed to transfer'Decedent on a timely basis to a
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tertiary care center' for appropriate care;
(k). failed to take into account Decedent's pre-existing..
medical condi'tion whe:l rendllring treatment to him;
(l) ordered inappropriate medications;
(m) failed to recognize and take appropriate action as
Decedent's condition ceteriorated;
(n) failed to recognize the seriousness of Decedent's
conditio~ a~d high risk status;
(0) failed to properly communicate with each other and
other co~sulta:lts 'and ~ealth care providers;
(p) failed to fully and/or properly examine Decedent and
evaluate his medical condition prior to ordering antibiotics and
instituting medical care;
(q) failed to appropriat.ely interpret obvious data,
including but not limited to lab values, vital signs and physical
symptoms;
,
(r) failed to adequately monitor and follow ~he
Decedent; \.
(s) failed to ensure that appropriate monitoring of
Decedent would be carried out to det.ect earliest manifestations of
endocarditis and/or other infectious processes, so as to ensure.
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early and aggressive treatment, before it became a setious'threat to
Decedent's life;
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(t)' failed to recog,nhe advanced warning: signs of the
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progression of subacute bacterial'endocarditis in Decedent;:
(u) failed ,to monitor the competency of staff members
and the adequ~cy of their patient treatment assessments; and
(v) were unduly and wrongly influenced by deced.ent' s
.
past medical history of percodan and heroin addition.
WHEREFORE,
Edward Zimmer, Administrator oJ
the Estate of
, '
Albert Zimmer, Deceased, demands jUdgement against Defendants-
Doctors, Alfano Salvatore, M.D" and Jon A. Dubin, D.O., jointly
and/or severally together with other Defendant (s) herein, in an
amount in excess of Twenty-Five'Thousand ($25/000.00) Dollars, plus
interest and costs of suit.
COUNT II
PLAINTIFF v. DEFENDANT-HOSPITAL
30. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as though set
forth at length herein.
31. Ylhile D~cedent 'was under the aforesai<;l care, custody,
control and supervision of Defendant-Hospital, said Defendant
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directly and/or through its agents, servants, or employees, some of
whom may have been or were Defendant-Doc~or(s) named herein, was
careless and negligent in that it;
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(a) failed to have proper rules, regulations, procedures or
systems in place as indicated and required by both state law and
voluntary institutional and accrediting agencies regarding the care
and treatment rendered to Decedent while he was treated therein;
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(b) had actual or constructive knowledge that it failed"to
'properl1' ,select, tra~n and s'.lperv~se its agents, servants,
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employees and staff personnel who treated Decedent whii~ he was a
patient u~der its care, supervision and/or control;
(c) had actual or constructive knowled'ge that it failed to
monitor the competency' of members cif its medical 'staff, the'
adequacy of its patient trea,tment, and the adequacy of the,
equipment available for Decedent's treatment, particularly as to'
the skill (s) of qefendant-90ctor to perform the noted treatment
and/or surgery on said Decedent;
(d} had actual or co~structive knowledge that it failed to
have proper medical and surgical review procedures in place so that
it could obtain knqwledge, regarding the Defendant-Doctor's
perfol:mance and his compliance' with establishfld hospital
procedures;
(e) bad ~ctual or constructive knowledge that it failed to
discharge those doctors and nurses whose medical service and skills
fell below the general recognized standards of acceptable medical
services and skills l:e:ore they came into contact with Decedent; ,
(f) failed to treat D~cedent in. accOl:'dance with accepted
medical and hospital practlCe, particularly the recognition,
control and treatment of infectious diseases, under the soecific
circumstances and during the madical care noted aforesaid"; ,
(g) failed to exercise proper skill, diligence and due care
under the specific circumstances and during the medical care of
Decedent noted aforesaid;
(h) failed to adhere to the standard(s) of medical care in
the community here apJ:llicable under the specific circumstances anG
medical care of Decedent noted aforesaid;
(i) failed to otherwise ~dhere to the pertinent, treatment,
evaluation and diagnostic procedure~ as one would reasonably and
ordinarily expect from medical institutions in the business of
Defendant-Hospital under the specific circumstances and during the
medical care of Decedent noted aforesaid; ,
(j) failed to exercise that degree of skill, care' and
treatment and/or possess that degree of knowledge and competence,
ordinarily possessed by other hospitals under' the specific
circumstances and during the medical care of Decedent noted
aforesaid; and
(k) to the extent that Defendant-Docto',;-S were the agents or
employees cf ~efendant-Hospital, Flaintiff hereby re-alleges and
incorporates by reference thereto sub~paragraphs 29 (a) through
(v) / inclusive, as if the same were set forth at leng:h herein.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
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,Albert Zimmer, Deceased, demands judgement against Defendant, Holy
,
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Spidt Hospital of the Sisters of Chrimtisn Charity, ~oint~Y and/or
severally..with other Defendants herein, in an amo\-lnt in ,excess of
'l'wen,ty-Five Thousa,nd ($'25/,000,00) Dollars, phis interelSt and costs"
of suit'.
.
COUNT III
WRONGFUL DEATH
32. plaintiff incorporates by reference'all the allegations
set forth in paragraphs one (1) thr'ough thirty-one (31), inclusive,
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as though the same were more fully set forth at length herein.
33. plaintiff, ~dward ~im~er, is'the ~xecutoroE the Estate
of Albert Zi~~er, Deceased, having'been appointed by the Register
of. wills of Cumberland County.
34. This civil action is brought pursuant to the Pennsylvania
Wrongful Death Act / 42 Pa. C. S :"Sec. 8301 ~ ~ and Rule 2201
~ ~ of the l?A Rules of Civil Procedu~e.
35. Plaintiff's Decedent, Albert Zimmer, did not bring any
other action during his lifetime and no other action for the death
.
of said Decedent has been commenced againsc the Defendants herein
or by any other persons.
36. The Plaintiff/s Decedent, Albert Zimmer, was survived by
the following testamentary beneficiaries:
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twM. Relat ionshi'O
Edward Zimmer Brother
Michael C. Zimmer Brother
John E. Zimmer Brother
Nancy Zack sister
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37. Tr.is civil action is brought to recover, on behalf of the
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said testamentary beneficiaries, all damages legall~r ,available
under the sa~d act of assembly.
38. ,As'a direct and ap~roximate result of the death of the
, .
Plaint iff / S Decedent / Albert Zimmer, the testamentary beneficiaries
,
have suffered pecuniary losses and have incurred medical bills and
fuperal expenses.
, ,
. WHEREFORE, Edward Zimmer, Administrator of ,the Estate of
Albert Zimmer / ,Deceased / demandiil judgement against Defendants, Holy
?pirit Hospital of the Sisters of Christian Chari.ty, Alfano
Salv.atore, M.D., and Jon A., Dubin, D.O." jointly and/or seve%:'ally,
, .
in an amount, in excess of Twenty~Five Thousand ($25,000.00)
Dollars, plus interest and costs of suit.
COUNT IV
SURVIVAL ACTION
39. Plaintiff incorporates by reference all the allegations
set forth in paragraphs one (1) through thirty~eight (36) as though
the same were more fully set forth at length herein.
40. In his capacity as personal representative of the Estate
of Albert Zimmer, the Plaintiff brings this civil action pursuant
to the Pennsylvania Survival Act, 42 Pa. C.S. Sec. 8302 ~ ~
41. This civil act ion is brought to recover for the Estate of
"
Albert Zimmer, all damages legally recoverable under the said Act
of Assembly.
42. As 'a direct arid proximate result, of the carelessness,
negligence and reckless cond'.lct, as aforem~nt{oned, the Plaintiff's
Decedent, Albert Zimmer, died due to the injuries he sustained as
a result of co~~lications from Defendants' care.
~J. As.. direct and ,proximate result of. the careless and
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VER I FICATION
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EDWARD ZiMMER~ is the plain,tiff, ~n this action and veX-Hie..
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the .tat~m~nts made' in' the' foregoing ple~din9" are t,,-ue and
that
correct to the I best 'of plaintiff's knowledge,' inform.ation'and
belief.
The unci'ersigned understands' that the ,statements therein
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are made subject to the penalties of 18 Pa. C. S. Section 4904
relating to unsworn falsiHcation to authorities.
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1)llAl';CII)l': l"OIlI.lS'I'INO CAS": 1"Oll AIWlIMI':NT
IMu"t Ii.. t)p"wl'ittl'n nlld sulllllitt..d in ""phl'lIt!'1
TO TilE PROTUONO'\'AHY or CUMB..:IU.ANU COUN'I'Vl
I"ells,' list th.. within IIlntt!'" for till' Ill'xt Ar~unll'nt Cuurt.
..............................................----............-..................................................................... .....................................................................-:.....
EDWARD ZIMMER. Administrator
ofth~ Estal~ of Albert Zimmer,
Deceased.
, IN TilE COURT OF COMMON PLEAS
. CUMBERLAND COUNTY, PA
Plaintitl'
NO, 96-744
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1',"1 'illl
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v.
CIVIL ACTION -LAW
HOL Y SPIRIT HOSPITAL OF
THE SISTERS OF CHRISTIAN
CHARITY, ALFANO SALVATORE,
M,D., and JON A. DUBIN, DO.
Dclcndanls
1. Stnte mattl!r to hI! argued (i,ll" plaintifl's motion for new trial,
defllndant's dl!murrer to complaint, etc.l:
Preliminary Objections of Defendants to the Complnint
2. Identify counsel who will nrgue caSI!:
(a) for Plaintiff:
Address:
.John R. Kusturiss, .Jr" Esquire
Kreithen, Baron, Villari & Golomb
1201 Chestnut Strellt, 10th Floor
Philadelphia, PA 19107
(b) for Defendant:
Address:
.Jayson R. Wolfgang, Esquire
Mlltte, Evans & Woodside
3401 North Front Street
Harrisburg, PA 17110
3, I will notify all parties in writing within two days that this case has
been listed for argument.
4. Argument Court Date:
Dated: March 4,1996
48711.!iForlD)
iill:lntil
KREITHEN, BARON, VILLARI Ii. GOLOMB
BY1JOHN E. KUSTURISS, JR.
I.D. #28271
1201 CHESTNUT ST. / lOth FLOOR
PHILADELPHIA, PA 19107
(215) 563-8286
EDWARD ZIMMER, Administrator
of the Estate of Albert
Zimmer / Deceased
835 Ridgewood Drive
Mechanicsburg, PA 17055
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO.1
v.
HOLY SPIRIT HOSPITAL OF THE
SISTERS OF CHRISTT.AN CHARITY
North 21st Street
Camp Hill, PA 17011
and
ALFANO SALVATORE, M.D.
North 21st Street
Camp Hill, PA 17011
and
JON A. DUBIN, D.O.
North 21st Street
Camp Hill, PA 17011
JURY TRIAL DBMANDIP
CI~IL ACTION - COMPLAINT
1. Plaintiff is Edward Zimmer, Administrator of the Estate
of Albert Zimmer, Decedent / duly appointed by the Register of Wills
of Cumberland County, who resides at 835 Ridgewood Drive,
Mechanicsburg, PA 17055.
2. Defendant, Holy Spirit Hospital of the Sisters of
Christian Charity, [hereinafter "Defendant-Hospital"], is a non-
profit pennsylvanJ,a Corporation duly organized and existing under
and by virtue of the laws of the Commonwealth of Pennsylvania, with
its principal place of business located at the above captioned
address.
3. Alfano Salvatore, M.D., [hereinafter referred to.as
"Defendant-Doctor (s) "] / is an adult individual and at all times
material and relevant hereto was a duly licensed and praoticing
physician in the Commonwealth of Pennsylvania with his prinoipal
place of business lo~ated at the above-captioned addresa.
4. Defendant, Jon A. Dubin, D.O. [hereinafter referred to as
"Defendant-Doctor (s) H], is an adult individual and at all times
material and relevant hereto was a duly licensed and practicing
physician in the Commonwealth of Pennsylvania with his principal
place of business located at the above-captioned address.
5. At all times material and relevant hereto, Defendant-
Hospital acted by and through it's agents, servants / workmen,
and/or employees who were then and thereabout acting within the
course and scope of their employment with said Defendants, some of
whom may have been or were Defendant-Doctor(s) named herein.
6. On or about February 14/ 1994/ and thereafter, Decedent
employed Defendant -Hospital and Defendant -Doctors for compensation
to provide emergency, surgical, hospital and associated medical
care and treatment to Decedent, and said Decedent thereby came
under the professional care, attention, control and treatment of
said Defendants.
7. By virtue of the aforesaid employment of said Defendants
by Decedent, a physician/patient relationship ensued and said
Defendants did thereby agree to undertake the care and treatment of
said Decedent skillfully and in accordance with the prevailing
standards of medical practice and pertinent community, state and
national standards and codes.
8. In addition to the aforesaid, at all times relevant
hereto, Defendant ,.Doctors held themselves out to the public and to
Decedent, particularly, as specialists in the field of emergency
medicine, infectious disease, internal medicine, and related
surgical and medical care, both inpatient and outpatient, and as
suoh, are and were to be held to a higher standard of care than a
general practitione~ within his or her chosen specialty.
9. At all times material and relevant het"eto, Defendant-
Hospital was engaged through their agents, servants, employees, and
those staff personnel hereinafter identified in rendering
professional and medical care to the publ ic / and thereby held
itself out to the public generally, and to Decedent specifically,
as being skilled in the practice of medicine, hospital care and
surgery and thereby accepted. responsibility of providing
appropriate and adequate medical, emergency medical, hospital and
surgical care to Decedent in accordance with the prevailing
standards of medical, medical provider, and hospital practice and
pertinent community, state and national standards and codes.
10. Defendant-Hospital at all times material and relevant
hereto, owned, maintained and controlled their patient rooms/
medical services, surgical theaters, treatment rooms and equipment,
all of which were operated by and for said Defendants by their
agents / servants. workmen and/or employees who were then and
thereabout withil". the course and scope of their employment with
said Defendants and/or on the business of said Defendants, and/or
under the control and/or right of control of said Defendants.
11. At all times material and relevant hereto, Defendant-
Hospital had granted staff or other privileges to the above-named
Defendant-Doctor(s) to practice medicine and/or surgery; to perform
radiological or other diagnostic examinations and/or studies, to
perform and practice clinical medicine, and/or to use all of the
facilities and medical services owned and controlled by said
Defendants.
12. At all til)1es material and relevant hereto, Defendant-
Doctor(s) named aforesaid may have been or were employees and/or
resident physicians of Defendant-Hospital and, if so, were then and
thereabout and within the course and scope of their employment with
said Defendant and/or on said Defendant/s business, and/or under
the control or right of control of said Defendant.
13. At all times material and relevant hereto, the aforesaid
Defendant-Doctors may have been or were independent contractors who
through their acts and representations, and/or acts and re-
presentations of Defendant -Hospital/had apparent / implied or
ostensible authority to act on behalf of said Defendants regarding
the care and treatment of Decedent, and, if so/ said Decedent,
acting in good faith, had good reason to believe, and did actually
believe, that said Defendant-Doctor(s) possessed such authority,
all of which caused Decedent to justifiably rely upon such
appearance of authority and to reasonably believe that Defendant-
Hospital and Defendant-Corporation would be bound by the acts and
omissions of Defendant-Doctor(s).
14. As a direct result of the aforesaid, said Defendants
accepted the responsibility for the care and treatment of Decedent,
and, in doing so/ understood and assumed the duty to him to provide
safp. facilities necessary for the proper practice of nursing,
medicine and surgery and to render competent, proper, adequate and
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appropriate medical, general med,i.cal, clinical medical, diagnostic /
nursing and/or other medical care and treatment, and to take
appropriate preventive and curative measures to treat said Decedent
and to avoid harm to him.
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15. As a direct result of the aforesaid, said Defendants had
a duty to Decedent to exercise ordinary care while he was confined
to their facility. and/or received treatment therein and/or was
assigned to or under their care, which duties included, but is not
limited tOl providing proper medical, nursing, surgical, medical
facility and hospital care; establishing and enforcing by-laws,
procedures and rules which mandate proper medical, nursing,
surgical and hospital and/or medical facility care; hiring
competent medical personnel; competent nursing personnel; keeping
the hospital or facility free from ordinary hazards, defective
equipment and improper drugs; ensuring that all patients / including
Decedent, received adequate medical attention, having sufficient
and properly trained nursing personnel/competent and able to
recognize a patient's condition; establishing and enforcing
procedures and systems to monitor their staff, and to ensure that
their patients are receiving proper care and treatment.
16. On February 14, 1994/ Decedent presented to
Defendant-Hospital Emergency room with chief complaints of fever,
chills, nausea/ vomiting, night sweats and generalized muscular
pain for the past four (4) days. His vital signs at this time were
temperature 102/ pulse 108/ respirations 20 and blood pressure
1/
,
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155/75.
17. On the aforenoted date, Dec.edent was seen and examined by
Defendant-Doctor(s) in Defendant-Hospital's Emergency Department.
18. While under the car.e of Defendant -Hospital Emergency
Department, Decedent/s testing and examination(s) revealed certain
abnormal findings, including but not limited t,Ol White Blood Cell
counts / Temperature, Hemoglobin / Hematocrit, urinalysis,
splenomegaly and positive blood cultures.
19. Following treatment and evaluation, inclusive of the
initiation of blood cultures, Decedent was diacharged home on
February 14/ 1994 by Defendant-Hospital and Defendant-Doctors with
prescriptions for oral antibiotics and instructions for follow up
care with his family doctor.
20. At 7130 a.m. on February 15/ 1994/ the gram smear of
Decedent' s blood culture was resulted as "Gram-Positive Cocci
Streptococcus-Like" / with the final blood culture later reported as
positive for "Streptococcus SP". (Sanguis II).
21. On February 19, 1994/ Decedent was called by Defendant-
Doctor(s) and a new prescription was ordered changing his
medication from oral Cipro to oral Keflex.
22. On February 24/ 1994/ Decedent was admitted to Harrisburg
Hospital with positive blood cultures for streptococcus sanguis II,
and a new heart murmur consistent with aortic insufficiency.
23. The plan on admission to Harrisburg Hospital was to rule
out endocarditis.
24. Decedent was diagnosed with Subacute Bacterial
Endocarditis by the medical staff of Harrisburg Hospital, and as a
result remained hospitalized there until March 7, 1994.
25. Decedent continued to have chronic problems related to
the aforenoted Bacterial Endocarditis and eventually expired as a
result thereof on September 9, 1995.
26. As a result of the careless and negligent conduct of said
Defendants set forth herein, jointly and/or severally, Decedent
suffered severe, painful and permanent physical and mental
injuries, including but not limited to~ Subacute Bacterial
Endocarditis; respiratory distress; shortness of breath; sepsis;
irreversible damage to his heart valves; congestive heart failure;
extended hospitalization; significant increase of the risk of harm
that he will/would suffer complications,
injuries and/or
exacerbation of the aforesaid conditions and other related
conditions; severe shock to his nerves and nervous system; all of
which caused Decedent great physical/mental and emotional pain and
suffering and his eventual untimely death.
27. As a direct and proximate result of the aforesaid
carelessness and negligence of the aforesaid Defendants, jointly
and/or severally, Decedent;
(a) suffered the aforesaid severe/ painful and permanent
injuries;
(b) required medical care and attention, supervision .and
the like to at tempt the cure of, or othel'wise alleviate, his
conditions;
(c) has been or will be prevented from attending his
normal duties, chores, activities and the like, and from assuming
gainful employment;
(d) has had his earning capacity and power materially
and adversely affected;
(e) has incurred medical and other expenses for his
care, treatment, supervision and the like, to effect a cure for, or
otherwise alleviate, his condition;
(f) has suffered severe pain and suffering and emotional
and mental trauma, anguish, and humiliation, with attendant
physical and mental sequelae, any or all of which may
be permanent in nature and/or continue indefinitely into the
future;
(g) suffered a premature death; and/or;
(h) was in other ways damaged and injured to his great
detriment, all of which will be more fully proven at or before the
trial of this cause.
~Jm'Ll
PLAINTIPP v. DEPENDANT-DOCTORS
28. plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as . though set
forth at length herein.
29. Plaintiff charges that Defendant-Ooctors, jointly and
severally, were careless and negligent in there aforesaid care and
treatment of Decedent in that they:
(a) failed to recognize and timely treat signs and
symptoms of an infection, particularly a bacterial endocarditis;
(b) failed to perform appropriate diagnostic tests to
access the seriousness of Decedent's condition;
(c) failed to adequately and
etfectively treat
Decedent/s symptoms, including but not limited to ordering
cardiology and infectious disease consultations;
(d) failed to timely diagnose Decedent/s condition;
(e) failed to advise Decedent as to alternative
treatments for his condition;
(f) failed timely admit Decedent to the hospital for IV
administration of antibiotics and/or. otherwise timely adml.rUoter.
same;
<g) delayed adequate and appropriate medioal tr~atment
until Decedent/s condition had markedly deteriorated,
(h) carelessly, improperly and ineffectively
administered medications;
(i) failed to properly and adequately monitor and
administer appropriate medications including, but not limited to
choosing oral versus I.V. antibiotics;
(j) failed to transfer Decedent on a timely basis to a
tertiary care center for appropriate care;
(k) failed to take into account Decedent/s pre-existing
medical condition when rendering treatment to him;
(l) ordered inappropriate medications;
(m) failed to recognize and take appropriate action as
Decedent's condition deteriorated;
(n) failed to recognize the seriousness of Decedent's
condition and high risk status;
(0) failed to properly communicate with each other and
other consultants and health care providers;
(p) failed to fully and/or properly examine Decedent and
evaluate his medical condition prior to ordering antibiotics and
instituting medical care;
(q) failed to appropriately interpret obvious data,
including but not limited to lab values, vital signs and physical
symptoms;
(r) failed to adequately monitor and follow the
Decedent;
(s) failed to ensure that appropriate monitoring of
Decedent would be carried out .to detect earliest manifestations of
endocarditis and/or other infectious processes, so as to ensure
early and aggressive treatment before it; became a serious threat to
Decedent / slife;
(t) failed to recognize advanced warning signs of the
progression of subacute bacterial endocarditis in Decedent;
(u) failed to monitor the compet;ency of staff members
and the adequacy of their patient treatment assessments; and
(v) were unduly and wrongly influenced by decedent' s
past medical history of percodan and heroin addition.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
Albert Zimmer, Deceased, demands judgement against Defendants-
Doct;ors, Alfano Salvatore, M.D., and Jon A. Dubin, D.O., joint;ly
and/or severally together with other Defendant (s) herein, in an
amount in excess of Twenty-Five Thousand ($25,000.00) Dollars, plus
interest and costs of suit.
COUNT U
PLAINTIPP v. DEPENDANT-HOSPITAL
30. Plaintiff incorporates by reference thereto paragraphs
one (1) through twenty-seven (27) inclusive, as fully as though set.
forth at length herein.
31. While Decedent was under the aforesaid care / custody,
control and supt!rvision of Defendant-Hospital, said Defendant
directly and/or through its agents, servants, or employees, some of
whom may have been or were Defendant-Doctor(s) named herein, was
careless and negligent in that it;
(a) failed to have proper rules, regulations, procedures or
systems in place as indicated and required by both state law and
voluntary institutional and accrediting agencies regarding the care
and treatment rendered to Decedent while he was treated therein,
(b)
properly
had actual or constructive knowledge that it failed to
select, train and supervise its agents, servants,
.-..A. \
.
employees and staff personnel who treated Decedent while he was a
patient under its care, supervision and/or control,
(c) had actual or constructive knowledge that it failed to
monitor the competency of members of its medical staff, the
adequacy ,of its patient treatment., and the adequacy of the
equipment available for Decedent's treatment, particularly as to
the skill(s) of Defendant-Doctor to perform the noted treatment
and/or surgery on said Decedent,
(d) had actual or constructive knowledge that it failed to
have proper medical and surgical review procedures in place so that
it could obtain knowledge regarding the Defendant-Doctor'S
performance and his compliance with established hospital
procedures,
(e) had actual or constructive knOWledge that it failed to
disCharge those doctors and nurses whose medical service and skills
fell below the general recognized standards of acceptable medical
services and skills before they came into contact with Decedent,
(f) failed to treat Decedent in accordance with accepted
medical and hospital practice, particularly the recognition,
control and treatment of infectious diseases, under the specific
circumstances and during the medical care noted aforesaid,
(g) failed to exercise proper skill, diligence and due care
under the specific circumstances and during the medical care of
Decedent noted aforesaid,
(h) failed to adhere to the standard(s) of medical care in
the community here applicable under the specific circumstances and
medical care of Decedent noted aforesaid;
(i) failed to otherwise adhere to the pertinent, treatment /
evaluation and diagnostic procedures as one would reasonably and
ordinarily expect from medical institutions in the business of
Defendant-Hospital under the specific circumstances and during the
medical care of Decedent noted aforesaid,
(j) failed to exercise that degree of skill, care and
treatment and/or possess that degree of knOWledge and competence /
ordinarily possessed by other hospitals under the specific
circumstances and during the medical care of Decedent noted
aforesaid; and
(k) to the extent that Defendant-Doctors were the agents or
employees of Defendant-Hospital, Plaintiff hereby re-alleges and
incorporates by reference thereto SUb-paragraphs 29 (a) through
(v) / inclusive, as if the same were set forth at length herein.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
Albert Zimmer, Deceased, demands jUdgement against Defendant, Holy
.
spirit Hospital of the Sisters of Christian Charity, jointly and/or
severally with other Defendants herein, in an amount in exoess of
Twenty-Five Thousand ($25,000.00) Dollars, plus interest and costs
of suit.
COUNT II I
WRONGFUL DIATH
32. Plaintiff incorporates by reference all the allegations
Bet forth in paragraphs one (1) through thirty-one (31), inclusive,
BS though the same were more fully set forth at length herein.
33. Plaintiff, Edward Zimmer, is the Executor of the Estate
of Albert Zimmer, Deceased, having been appointed by the Register
of Wills of Cumberland County.
34. This civil action is brought pursuant to the Pennsylvania
Wrongful Death Act, 42 Pa. C.S. Sec. 8301 ~ ~ and Rule 2201
~ ~ of the PA Rules of Civil Procedure.
35. Plaintiff' a Decedent / Albert Zimmer, did not bring any
other action during his lifetime and no other action for the death
of said Decedent has been commenced against the Defendants herein
or by any other persons.
36. The Plaintiff's Decedent, Albert Zimmer, was survived by
the following testamentary beneficiaries 1
Edward Zimmer
Relationshio
Brother
~
Michael C. Zimmer
John E. Zimmer
Nancy Zack
Brother
Brother.
Sister
II
37. This civil action is brought to, recover, on behalf of the
.
said testamentary beneficiaries, all damages legally available
under the said act of assembly.
38. As a direct and approximate result of the death of the
Plaint iff / S Decedent / Albert Zimmer I the testamentary beneficiaries
have suffered pecuniary losses and have incurred medical bills and
funeral expenses.
WHEREFORE, Edward Zimmer, Administrator of the Estate of
Albert Zimmer, Deceased, demands judgement against Defendants, Holy
Spirit Hospital of the Sisters of Christian Charity, Alfano
Salvatore, M.D., and Jon A. Dubin, D.O. / jointly and/or severally,
in an amount in excess of Twenty-Five Thousand ($25,000.00)
Dollars, plus interest and costs of suit.
COUNT IV
SURVIVAL ACTION
39. Plaintiff incorporates by reference all the allegations
set forth in paragraphs one (1) through thirty-eight (38) as though
the same were mor.e fully set forth at length herein.
40. In his capacity as personal representative of the Estate
of Albert Zimmer, the Plaintiff brings this civil action pursuant
to the Pennsylvania Survival Act, 42 Pa. C.S. Sec. 8302 ~ ~
41. This civil action is brought to recover for the Estate of
Albert Zimmer, all damages legally recoverable under the said Act
of Assembly.
42. As a direct and proximate result of the carelessness,
negligence and reckless conduct / as aforementioned, the PJ,aintiff's
Decedent, Albert Zimmer, died due to the injuries he sustained as
a result of complications from Defendants' care.
43. As a direct. and proximate result of the careless and
< j, 'j I.
H'
.
YSRIfICATION
"
BOWARD ZIMMER;
is the plaintiff in this action and,verifies
that the statements made in the foregoing pleading are true and
correct to the best of plaintiff' s knowledge, information and
belief.
The undersigned understands that the statements therein
are made subject to the penalties of 18 Pa. C. S. section 4904
relating to unsworn falsification to authorities.
SOWARD ZIMM /
Estate of Alber
n strator 0 t e
Zimmer, Deceased
Date: '2,- J;'- f(P
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EDWARD ZIMM~;R, Administrator
of the Estate of AlbeIt Zimlllor,
Deceasod,
; IN TH[<; COURT OF COMMON PLEAS
; CUMBERLAND COUNTY, PA
Plaintiff'
v,
NO, 9(-j-744
HOLY SPIRIT HOSPITAL OF
THE SISTER.."l OF CHRISTIAN
CHARITY, ALFANO SALVATORE,
M,D., and JON A. DUBIN, D,O"
Defendants
CIVIL ACTION. LAW
BRIEF OF' DEFENDANTS IN SUPPORT OF
PRELIMINARY OBJECTIONS TO THE COMPLAINT
, I
METTE, EVANS & WOODSIDE
, '
By:
, ,
"
3401 North [<'ront Street
P.O, Box 5950
Harrisburg, P 17110-0950
(717) 232-5000
I ,-,
Attorneys for Defendants,
Holy Spirit Hospital and Alfano Salvatore,
M.D, and Jon A. Dubin, D.O,
DATE: April Ii, 1996
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I. FACTUAL AND PROCEDURAL IIISTOR'V
Plaintiff Edward Zimmer, administrator of the estate of Albert Zimmer, filed
a Complaint in this medicalllJlllpracticl! action on or ahout February 12, 1996. The
Complaint contain/! lilUr Counts, Count I is directed at Defendants AlIhno Salvatore,
M,D, and .John A Duhin, D,O, and sOli/His in nel{lil{l'lIl'I', Count II is directl!d nt Holy
Spirit Hospital lhl!reinafler "Holy Spirit"). and l!/!sentially contain/! a claim of
corporate negligence undl'r Thomp.'1on v. NaNon Ho.'1pital, fi27 Pa, :1:lO, fi91 A.2d
703 (991), Counts III and IV contain wrongful death and /!urvival claims,
respectively, predicated on thl' theories of liability II/!serted in Count/! I and II.
According to the Complaint, Plaintiffs decedent presented to Holy Spirit's
Emergency Room on February 14, 1994 with chief complaint.~ of fever, chills, nausea,
vomiting, night sweats and I{eneralized muscular pain for thll past four days,
Plaintiffs decedent was allegedly examined by Dr, Salvatore alllVor Dr, Dubin, Test
results allegedly revealed certain abnormal lindinl{s pertaining to white hlood cell
counts. inter alia, Plaintiffs decedent was dischargl!d the same day with
prescriptions for oral antibiotics and instructions for follow-up care with his family
physician,
. 1 .
On February 15, 1994, n gmm Im\llllr of Plnintill'll decelhmt's bloml culture
revealed gram.positive cocci, stroptol'occus.like, with the final blood culture Inter
reported a8 positiVI) for Iltreptococcus 81' (Sanguill \I), On l<'ebruary 19, Hl94, the
Defendant physicians alleg(ldly called lhlccdent with a nl1W prellcription from oral
Cipro to oral Kelll)x,
On Fobruary 24, Hl94, Plaintill's dl1cedent wns admitted to Harrisburg
Hospital with positive blood culturell for streptococcus sanguis 11, and a new heart
murmur consistlmt with aortic insu!liciency, Plaintill' allegell that the plan on
admission to Harrisburg Hospital wall to ruh) out endocarditis, Plain till's decedent
was subsequently diagno.~ed with suhacute hacterial endocarditis, lInd as a result
remained hospitalized at Harrisburg Hospital until March 7, 1994, Plaintiffs
decedent allegedly continued to have chronic probhlms related to his condition, and
eventually expirlld as a result thereof on S(lptember H, 1H95,
Defendants filed preliminary objectionll to the complaint on March 5, 1996.
Specifically, Defendants have objected to certain boilerplate allegations of negligence
against the Defendant physicians, and corporate negligence against Holy Spirit, In
addition, Defendant8 have prelimmarily objected to the inclullion of a claim for lack
of informed consent in paragraph :l9(e) in this nll/l'llurwcal case, This brief is
submitted in support. of the preliminary objections of Defendants,
.2.
allegations, ill thnt Holy Spirit hnd netunl 01' con/ltructivH not!cll thnt Plnintif1's
decedent was n pntillnt /lI!(!I1 in it/l l'nll!rgl!ncy room on Fl!hrnury 14, Iflfl4, .1 U/lt like
the surgery pl!rf(lrnwd in LeaNe, till! ding-nollill of dl!cmll!nt'll condition nl!CI!llllarily
entailed medicnl decillion-making in which till! IlOllpital wnll not involved, Holy Spirit
cannot bp. eXpl!etl!d to mvil!W l!ach and l'very diagnosill hy II phYlliciall, 1111 thill would
impose the n!sponsihility of IIll!dical decisioll-making on tl\l' hOHpital. All thl! court
indicated in LeaNe, such responllihility ill neithl!r leg-nlly n!l(uin!d nor praetical. Holy
Spirit is not strictly liahle fill' decl!dl!nt's injuril's merely hl!CaUlle a dillgnostic test
may have been perfilrlned thl!re,
A plain reading of the Complnint demonstrates thnt Plnintitl' has not alleged
sufficient facts to support a c1llim of corporate negligence against Holy Spirit.
Accordingly, Count II of the Complaint must he dismissed fbr insufficient specificity,
B. Paragraph 29(e) of the Complaint Must Be Dismissed with Prejudice
Because Plaintiff Has Failed to State a Claim of Lack of Informed
Consent UDon Which Relief Can Be Grantl!d
The standards tbr a demurrer are wl'lI-established, A dl!murrer to a complaint
I
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,
must be granted where the court is certain that, as a matter of law, there could be
no recovery upon thl! fhets alleged, See, e.g., Wurth v. Philadelphia, 1:16 Pa,
Commw, 629, 584 A.2d 40:1 (1H90), In determining n demurrer, all sufficiently
. 14.
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pleaded relevnnt liletll nnd inlimmcell Ihirly dl!llucihle therlJfrolll mUllt hl! accepted
as true, Id, Howllver, thc court cllnnot accept 1111 truc conclusions of Illw. Eakell v.
WilBon, 409 Pa. Supl!r. 1:3:.!, 1:1fj lifl7 A.:.!d 69ll, ri9!! (\991). HI!rC, whl!n the
alleglltions of thl! Complnint arc tllken in the light mOllt Iilvornhle to the Plnintill', it
is certllin as II matter of law that Plnintill' cllnnot prevnil on Il theory of Illck of
informed consent.
Under Pennsylvanilllaw, a physician must discuss with his pntient those risks
materilll to Il surgiclll procedure IInd nlternativl!s thereto, Goulle v. Cassel, 5:3:.! Pa.
197,615 A.2d :j31 <199:.!); Stoveru. Association o{Thoracic and Cardiovascular
Surgeons, 4:H Pa, Super, 11, 6:15 A,:.!d 1047 <1mJ:lj, In the absence of such
disclosures, the trllating physician will be considered tn have committed a technical
bllttery on his patient, and is liable Illr any injuries resulting therefrom. Gray v.
Grunnagle, 4:.!:3 Pa, 144, :.!:.!:l A.:.!d 66:3 (Hl66L It is well-settled that a lack of
informed consent can only occur when! a surgical procedure is involved, See Boyer
u. Smith, 345 Pa, Super, 66,497 A:.!d ll4G (1985) <n!fusing to expand informed
consent to include the administration of therapeutic drugsL
In paragraph 29(e) of the Complaint, Plaintiff Illleges the following:
.15.
29. Plllintill' Chllrl{l!i'l thllt lll!/imdllnt-dodori'l, jointly and
sevel'ally, worl! carclci'li'l and m!gligl!nt in their uforclluid curcand
treatment of decedcnt in thut thl!Y:
iil :/I:/<
(cl fhill!d to allvii'll! dl!fimdant 1111 to alu!n1utlve treatment
for hill condition,
See Complaint, paragraph 2fJ (I!l, 1'hillullegation clearly reprcllentllan attempt by
Plaintiff to aSllert a claim for luck of informed conllent.
The fucts of' thill callI! do not Ilupport a claim for lack of informed consent.
First, this calle doell not involvl! a surgical procedure, According to the Complaint,
the only care rendefl!d by the Defi!ndants to Plaintifl's decedlmt involved examination
including certain tests, There is no allegation of' a surgical proccdure upon which a
claim for lack of' infimned consent could possihly he based, Moreover, Plaintiffll
allegationll are couchl!ll in terms of Ill'gligencl!, Lack of informl!d conllent has always
been a battery theory under PI!llllsylvania law, thus the requirement of' a surgical
procedure. In t.he absence of' such facts, Plaintiff has fhiled to state a claim of'
informed consent upon which relief can be granted, and paragraph 29(e) of the
Complaint must be dismissed, with prejudiCI!,
.16.
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KREITIIEN. BARON, VILLARI &. GOLOMB
BY:
KUSTURlSS. JR.. ESQUIRE
oy for Plaintiff
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I. pROeEOllRAL AND FAC'tVALJII81'OBI
~
Plaintiff Edward Zimmcr, administrator of the estate of Albert Zimmer,
commenced this medical malpractice action by filing a Complaint on or about
February 12, 1996. This action involves medical treatment and care rendered to
Albert Zimmer from February 14, 1994 until on or about February 24, 1994.
The Complaint contains four Counts. Count I is directed at Defendants
Alfano Salvatore, M.D. and Jon A. Dubin, D.O. and sounds in negligence. Count
II is directed at Holy Spirit Hospital (hereinafter "Holy Spirit"), and contains
essentially a claim of corporate negligence under Thompson v. Nason HosDital, 527
Pa, 330, 591 A.2d 703 (991). Counts III and IV contain wrongful death and
survival claims, respectively, predicatcd on thc theories of liability asserted In
Counts I and II.
On or about March 5, 1996, Defendants filed Preliminary Objections to the
Complaint. Specifically, Defendants objected to certain boilcrplate allegations of
negligence against the Defendant physicians, and corporate negligence against
Holy Spirit. In addition, Defendants preliminarily objected to the inclusion of a
claim for lack of informed consent in paragraph 29(e) of the Complaint in this non-
surgical case.
By Order dated July 23, 1996, this Court granted Defendants' Preliminary
Objections, allowing Plaintiff twenty (20) days within which to amend the
.
;
4
Complaint. So the Court's Order of July 23, 1996, attached as Exhibit "A" to
Defendants' Motion for Protective Order filed concurrently with this Brief.
Subsequently, the parties stipulated to dismissing Defendants Holy Spirit and
Dr. Salvatoro from the lawsuit.
On or about September 4, 1996, Plaintiff unilaterally filed a Motion to Stay
Proceedings and for Leave to Conduct pre-Amended Complaint Discovery.
Attached to thE' motion was a Request for Production of Documents Plaintiff
intended to be included in the pre-Amended Complaint Discovery. ~ the
Request for Production of Documents attached os Exhibit "B" to the Defendants'
Motion for Protective Order filed concurrently with this Brief.
On or about September 6, 1996, without the benefit of a Reply or Brief from
Defendants, this Court entered an Order granting the Motion. ~ Court's Order
of September 6, 1996, attached as Exhibit "C" to Defendants' Motion for Protective
Order filed concurrently with this Brief, The September 6. 1996 Order further
directed Defendants to provide responses to Plaintiffs Request for Production of
Documents within thirty (30) days. Plaintiffs Request for Production of
Documents seeks material that is protected and non-discoverable pursuant to the
Pennsylvania Peer Review Protection Act, 63 Pa,e.S.A *425.1 et seq., which
prohibits t,he discovery of information and documents subject to peer review.
Defendant, Jon A Dubin, D.O. has filod a Motion for Protective Order
simultaneously with this Brief which is submitted in support of that Motion.
2
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.
~
~Bctua' HlltorY
According to the Complaint, Plaintill's decedent prcsented to Holy Spirit's
Emcrgency Room on Fcbruary 14, 1994 with chicf complaints of fever, chills,
nausea, vomiting, night tlwenttl and generalized muscular pain for the past four
days. Plaintill'tl decedent watl allegedly examined by Dr. Salvatore and/or Dubin.
Test results allegedly revealed certain abnormal findingtl pertaining to white blood
cell counts, inter alia, Plaintill's decedent was discharged the same day with
prescriptions for oral antibiotics and instructions for follow-up core with his family
physician.
On February 15, 1994, a gram smear of Plaintill's decedent's blood culture
revealed gram-potlitive cocci, streptococcus-like, with the filial blood culture later
reported as positive for streptococcus SP (Sanguis 11). On February 19, 1994, the
Defendant physicians allegedly called decedent with a new prescription from oral
Cipro to oral Keflex.
On February 24, 1994, Plaintill's decedent was admitted to Harrisburg
Hospital with positive blood cultures for streptococcus sanguis II, and a new heart
murmur consistent with aortic insufficiency, Plaintiff alleges that the plan on
admission to Harrisburg Hospital was to rule out endocarditis. Plaintill's
decedent was subsequently diagnotled with subacute bacterial endocarditis, and as
a result remained hospitalized at Harrisburg Hospital until March 7, 1994.
Plaintiffs decedent allegedly continued to hove chronic problems related to his
condition, and eventually died as 0 result thereof on September 9, 1995.
3
.
..
Obviously, the broad prohibition against discovery of matters that are before
peer review organizations and the grant of immunity demonstrate the legislature's
intent to foster the greatest condor and frank discussion of medical review and
professional qualification review committees. Sanderson v. Bryon, 361 Pa. Super.
Ct. 491, 522 A.2d 1138, 1140 (1987), citing, Steel v. Weisberl/, 347 Pa. Super. Ct.
106, 600 A.2d 428 (1986). This is consistent with the purposes of a peer review
committee: "[Tlo (1) improve the quality ofthe care; (2) reduce morbidity and
mortality; landl (3) establish and enforce guidelines designed to keep the cost of
health core within reasonable bounds," Sanderson, 522 A,2d at 1141: 63 Pa.C.S.A.
~426.2.
When the legislature enacted the Act, it recognized that in order to achieve
the aforementioned goals it hod to encourage physicians and other health care
providers to evaluate their peers openly and honestly, and it did this by removing
the fear of disclosure. If the reports, memos, notes, proceedings, actions, and
recommendations of peer review committees, or individuals acting in what is
defined to be peer review, are permitted to be used in lawsuits against the
committee members, hospitals, or other persons, including the physicians who are
reviewed, the review committees would be hesitant to fully investigate and
critically evaluate the quality and efficiency of medical services rendered, as well
as the qualifications of staff members and applicants, The legislature realized this
problem and addressed it in the Act by providing for 0 broad prohibition against
discovery of matters that are the subject of peer review.
6
.
would include residoncy evaluathm reports which review the qualifications/
activities of medical residents and credential committee records. Records of a .
Credential Committee filII within the definition of "application" and
"qualifications" and is not discoverable.
In Request No, 4, PlnintitT seek/! "Any and all notes, memoranda, or
correspondence relatcd to Jon A. Dubin'/! loss of practicing privileges at prior
hospitals or health cure facilitie/!." Again, thc PlaintitT seeks materials which are
part of the credcntialing process, As stated previously, the Act protects such
documents.
In his Mcmorandum of Law in Support of Motion to Stay Procccdings and
for Leave to Conduct pre-Amendcd Complaint Discovcry, PlaintitT citcs two (2)
Philadelphia County cascs as supporting thc discoverability of the items sought in
his Request for Production of Documcnts. Howcver, Philadclphia County, unlike
ncighboring York County, narrowly construcs the Pennsylvania Pecr Rcview Act.
For these reasons, thCBC Philadelphia County opinions arc not indicativc of thc
status of this issue in all counties.
Also, the protection of peer review information sought in Plaintiffs Request
for Production of Documents Nos. 1 through 4 will not unrcasonably projudice
PlaintitT. PlaintitT still has access to its own mcdical records, can depose fact
witnesses and hire its own expert witness(es) to prove its case. ~ SandersoQ,
522 A.2d at 1143; .Gili1l! at 656. Therefore, protcction of the peer review
12
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York HOSpital answered that this material ~s "bpyond
the IICOpP of discovpry, ;aght to pnvacy, pepr rpvuw."
,
Baspd on a rpading of Fattflrman v. Hdba, 47 D...c. 3d
435 (c:. P. ,:pf;!prson County. 1987), tha COUrt finrjs
thp York Hospital's OblpCtion to bp consistpn~ ~ith
"
that. dPC1S1on Wh1Ch hpld,
that uocumpnts that bflcomp thp rpcords of ~
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rpviPW comm1ttpp or arp part of thp procppd-
lr,gs of thp rpvipw committpp arp protpctpd
by thp act. .
~ dt 4';0, (RpfPrring to thp P"pr RpVl.PW PrOtpction
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I\Ct, oJ Pa, c.S. S ';25,1 ~ ~). HOWpVpl:, bpcausp
t~p Ln~armatLon conCprn1ng staff app~lcatlon Pl:1V1Lpgp
',~,\s Il'Jbm L t tPd b'I' Doctor Ryscavagp rplatlng to coursp
it Study compLplPd w1th rpsppct to rp'cprtl~lCat~on,
'\\'p d.:.rf'lc,= t.:iP HOSp~tQl to provldp t~3t :nrormac:or.:
hOWPv_r, ~P pptuap PLaintiff's Motlon ~or S.n~~lons
'In thu rp9ard,
Pattp~Gon npxt argups tha~ York Hospltal's objpctlon,
to Plaintiff's firSt Rpquast for Production of Oocuml'nts
Numbprs 20, 21. and 22, is also impropPr. :'-lumbprs 20.
21, and 22, arp rpqupsts for the pprsonnl>1 fill'S of
thp includpd phYSiCians, copies of their applications
to practicp at York Hospital, ahd all investigations
-4-
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IN THe COURT or ~OMMON P~~A6 or VORK COUNTY, ~ENNSY~VANIA
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\
CHAR~ES PATTERSON, JR" and
ANNETTE PATTERSON
:':0. 86-5U-01244-01
VS,
::IVI~ ACTION
THOMAS 5. RVSCAVAGE, M.D"
YORK HOSPI't'M..
~HE REHAB HOSPITA~ FOR
SPECIAL SERVICES and'
DR., ~OHN DOE '
JURV TRIA~ DEMANpEO
V5.
I NO. 86-5U-04919-01
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~ CIVI~ ACTIO:-l '
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CHAR~ES PATTERSON, JR., and
ANNETTE PATTERSPN
R~HAB HOS~ITAL fOR
SPECIAL SERVICES,
ROBERT D. SELSON, M.D.,
DAVID KENT, M,D.,
GEORG" ,E. l';DER, :.\.0., and
DAVID L. C~HE~. ~,D..
;URV TRIA~ CEMANDEO
APPEARANCES I
,
,STEPHEN !, SALT~, Esquire
For Plalnuffs
,
,
,
JOHN R. SPARKS, JR.. EsquirE!
For Dpfpndants Doctors RyscavIIgp,and Cohen
ANDREW H. DOWLING, EsquirE!
JAMES W. EVANS. EAquire
For DpfE!ndant York Hospital
J. MICHAEL FLANAGAN, Esquire
bOUGLAS R. DRUCKER, Esquire
For DefE!ndant RPhab,Hospital
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IN THE COURT OF CO~ION PLEAS OF 'iORK COUNT'i, PENNS'ij:.VANIA
~
JEFFRE'i A. CAIN, Adm~nls~ratorl CiVll hction - Law
ot the Estate of SHERI ANN I
LEBER, Deceased I
I
V. I Jury Tri.1l De.manded
I
CHARLES W. HASH, In., D.O.; I
~~MORIAL HOSPITAL SURGICAL I
ASSOCIATES, INC.; WILLARD I
STITZELL, D.O.1 and ;
MEMORIAL HOSPITAL I ~o. S6-SU-0319B-Ol
APPEARANCES:
TERR'i S. H'iMAN, ESQUIRE
for the Plaintiff
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ARTHUR K. HOFFMAN, ESQUIRE
for the Defendants, Charles W. Hash,
and Memorial Surgical Associates
CRAIG A. STONE, ESQUIRE
for the Defendant, Memorial Hospi~~l
OPINIO:\
This matter is before the ':curt on the plaintiH's,
Jeffrey A. Cain, Administcator of :ehe Estate of Sheri Ann
Leber, Deceased, motion to compel discovary.
The relevant pleaded facts are as follows. On
September 7, 1984, Sheri Ann Leber, :!rove while intoxicated,
and had a head-on collision. She sustained severe injuries.
She was taken to Memorial Hospital, where despite medical
treatment, she died. Plaintiff has i~itiated two actions as a
result of Ms. Leber's death. Plaintiff filed a "dram shop"
----
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. action against the restaurant who served decedent while she
was visibly intoxicated.
Plaintiff also filed a lawsuit
against defendant, Charles W. Hash, Jr., D.O., the surgeon who
coordinated decedent's treatment, for medical malpractice. In
this action, plaintiff has als~ ~amed Dr. Stitzell, the
consulting neurosurgeon, ~emorial Surgical Associates and
Memorial Hospital. Plaintiff has sued Memorial Hospital on a
theory of corporate negligence based on an alleged failure to
select and supervise physicians to whom it can entrust the
diagnosis and treatment of patients with certain severe
injuries.
Plaintiff now seeks to compel discovery of information
which it contends is within the exclUSive control of Memorial
Hospital.
Plaintiff contends that this order compelling
discovery is necessary due to defendants' unwillingness to
disclose information regarding Hash's qualifications which
plaintiff alleges is essential to plaintiff's corporate
negligence action. Plaintiff seeks the production of certain
documents, answers to interrogatories, second depositions of
Ors. Hash and Scott, depositions of certain other individuals
and the dates, topics, participants and documents involved in
any peer review proceeding conducted regarding the Sheri Leber
case.
Although we do not have Exhibit A and 9, mentioned in
plaintiff's proposed order and motion to compel, we believe we
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sources are not to be construed as
immune from discovery or use in
any such civil action merely because
they were presented during pro-
ceedings of such committee, nor
should any person who testifies before
such commi t tee or who is a member
of such committee be prevented
from testifYlng as to matters within
his knOwledge, but the said witness
cannot be asked about his testimony
before such a committee or opinions
formed by him as a result of sald
committee hear~~gs.
The purpose of this act is to encourage lncreased peer
review of physician activity in a confidential atmosphere to
result in improved health care. This act has been interpreted
in several court cases.
The Court has reviewed the briefs
submitted by
counsel for ooth parties.
\~e find that
plaintiff's counsel has omH:ed recent, relevant case law.
~herefore, we will briefly discuss the law concerning the Act.
In Sanderson v. Frank 3ryan, M.D., Ltd., 361 Pa.Super.
Hl, 522 A.2d 1138 (1987/, allocatur denied, 538 A.2d 877
(1988/, the court held that the Peer Review Protection Act
prevented disclosure of documents and recordings maintained by
hospi tal review organizations, which concerned patients other
than plaintiff.
The COurt poi~ted out that plaintiff's access
,
to other patients' medical records would violate those
patients' right to privacy and would violate the legislative
intent since depending on the identity of tbe plaintiff, all
-4-
..
peer l;'eview records would be discoverable. 'rhus, pllllntif!
cannot discover documents and recordings of peer review
proceedings evaluating a physician on other patients' care. A
plaintiff, in a malpractice action, certainly has access to
,
his medical records and may compel thE! testimony of persons
with first-hand knOWledge of the alleged malpractice.
In Steel v. Weisberg, 368 Pa.Super. 590, 534 A.2d 814
(1987), allocatur granted, 562 ;".2;! 827 (1989), the court
found that a letter which complained of a dentist's conduct
and initia~ed the peer review process was a proceeding of the
peer review committee. As such, the letter was immune from
discovery as it related to the review process. However, the
court held that the individual who wrote the letter could
testifY as to his own knowledge of whether the letter ',.;as
received and to whom it was distributed.
In Torres v. Hanover General Hospital, 102 York Leg,
Rec. 195 (1989), the Honorable Richard H. Horn refused to
allow discovery of all incident reports filed against
defendant physicians by other patients since it is violative
of the fundamental right of privacy. See ~, Sanderson,
supra. In addition, Judge Horn held that the Joint Commission
on the Accreditation of Hospitals (hereinafter JCAH) is a
review committee as defined by the Act and therefore JCAH
reports are protected from discovery. ~ also 0 I Neill Y..
-5-
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MCKeesoort, 48 O,&C.3d 11S (1987).
The court in Fetterman v. Haba, 47 O.&C.3d 435 (1987)
held that the Peer Review Protection Act, 63 p,S. 5425
protects, a doctor's application :or staff privileges, the
qualifications therein and the delineation of privileges of a
doctor to a private facility since they anse out of review of
the hospital's documents which are part of the review
commi ttee I s proceedings or which become the commi ttee 's
records. The court, in Hanz sek v. :olcOonouqh, 44 D. &C. 3d 639
(1987), held that incident reports prepared by nurses in
connection with IS patient I s malpractice action are
diScoverable. These items were deemed documents from original
Sources, They are IS part of the patient's ~edical records and
are not protected by the act.
After a review of the case :aw and the Peer Review
Protection Act, we conclude that plaintiff cannot discover
documents, proceedings and records set forth in a cOmmittee
review meeting. This inc ludes reports on morbidity and
mortality, tissue review committee reports, and
qualifications, restrictions or limitations on privileges of
physicians. All these proceedings are specifically protected
.'
. by the act. I t is simply a matter of common sense that in
order to promote improved health care, the legislature has
protected proceedings of peer review cOmmittees to encourage
-~-
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retterman, supra. PlIlintif! alBo seeks information regarding
thole hWluits involving Dr. Hash of which the hospital lS
aware. Although s\lch information may not be relev4nt to this
lawBui t, it ill a matter of public record and not protected by
the act.
:n the interests of expediting discovery, we will
order the hospital to ~roduce information regarding its
itnowledge of such lawSUlts.
However,
once again, the
hospi tal's actions regardi::g Dr. Hash 's pn'lileges after
itnowledge of the lawsult are protected by the act since such
are peer ~eview proceedings.
Plaintiff finally requests
information
regarding the
system whereby the hospital
administratlon is informed that an attorney is requesting
patient records. We conclude that this procedural information
is discoverable and not protected by the act. However, the
persons implementing the system and the reasons for such
system are within the scope of the act and therefore not
discoverable.
Such information involves "comnllttee members"
and proceedings within the meaning of the act.
Plaintiff next requests this Court to order \'arious
depositions.
Defendants do not object to the depositions of
Ors.
Lasky and
Sarama.
Defendants Oppose the second
depositions of Ors. Hash and Scott.
Plaintiff may have the
opportunity to redepose these defendants on subjects not
previously asked by plainti ff,
However, any questions
-12-
----.,. -
regarding credentialing, restrictions, and privil~ges are
.
protected by the act. Plaintiff may allk queations regarding
duties of Dr. Hash, his title, and his performance, providing
such questions were not previously asked and the individual
testifies according to his own knowledge. We refuse to order
Dr. Hash to Ust lawsuits in which he has been named since
such request is irrelevant to this malpractice actlon
regarding
Sheri
~eber's
treatment.
Goodrich-Amram2d
S4011 (blll.l. Questioning of prior lawsuits is unreasonably
annoy ing and burdensome wi thin the meaning of Pa. R. C. P. No.
4011. Plaintiff may also question other deponents on certain
incJ.dent reports regarding Sheri Leber's case of which t:hey
have first-hand kno'~ledge, ?roviding such deponent does ::ot
delve into proceedings of the peer review commlttee.
Defendant
last
states
that
plaintiff
requests
information on any peer review proceeding regarding Sheri
Leber, including the dates, topics, participants and documents
rev18wed.
This information is clearly protected by the act
and is not discoverable.
After reviewing plaintiff's extensive requests ~or
compelled discovery, we wi 11 refuse and deny most of them.
Much of which plaintiff seeks is protected by the Peer Review
Protection Act, which promotes improved health care through
confidential review of physicians' actions. Should we grant
.._~----
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bU'densome and nol calculaled 10 leed 10 Ihe
dlSCOyery 01 admissable evidence", Ihe Defen.
danl, In a laudable allempl 10 an amlc,'ble
,esolullon 01 Ihe dlspule, .upplemenled II.
response 10 read:
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I.,) The hospllal has nol .ponsorad any
cOnllnUlng medical education le<:flJre$ or
prooram!S speCifically addreSSing the
,!Ssue 01 Inlormod consont Wllh'n the
past Ilye years
(b) PhYSICl;ln5 al Hl)no'J~r Ganeral
Hospital have a dUly 10 pilrll~ipallJ In
continUing medical "dueatlon in order 10
maintain sla" Privileges, HolnovOr
General HOl5pilal has no abilIty 10
monitor Ihe conlenls 01 programs 01.
fered outSide of the hOSPII,11 laclllly,
IhlJ~, the hospllal cannot :"itate It Delen
lJ.lnltl PhYSICians Polfllclpaled In pro,
grams wh'ch addressed tho ISsue or In.
'armed consen!. This Interrogatory 15
more properly directed ill e,len of the
Delp.ndanl Ph~5jclan5 since fhls m/orma.
tlOIl WOUld be CllCIl,/51~ely In IIlolr
knowledQe.
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Similarly. in Questions 24 al'l(j 25, Plajnlllls
ask "whelhur an~ InCident ropons were filed
concorning any of the {defendantl phYSicians
tn connectIon WIlh care gl~en to Jull A. Torres
or GmclOI Grace Torres on January 10, 198~."
Hanover General responded simply "No,"
AS the Defendant has fulty and completely
answered tl1e,,'? '1l)""''''Jnc;, Pl:l'nltl':l' motion as
10 lhese Interrogatotlco Will be dismissed .1S
being mool,
In f1u%tion 23 Plalnlllls InqulrQ "whether any
Incld':nt reports have e~ar been Illed concern.
ing c.1re given by the (defendantl phYSicians",
and request copies, if any. In lis Supplemen,
tary Answers. Defendant HoSpil:l1 replied'
ObJection, As phrased. thl5 Interrogatory
StJel\s ,1"'rr" ll"Jn wtl,ch tS protected
from dl'" ' /"ry plHsuant to the Penn.
'iylvlll'.t Pel~r p) n," PrOloctton Act By
.\'.Jy of IlJWllu obJCCt'0n !111S 'n',~r.
rogatory 15 overbroad and StJeks Irrele.
vanl inform,Jt,on which is nol reasonably
calclJlated 10 lead 10 Ihe discovery ot ad.
mlssable evIdence since the Inter.
rogatory seeks any incidenl reports evor
Itled and does nol limllltselt 10 a tlmo
prior to Ihe date 0' the Occurrence 91V'
mg rise to this lawsLJlt neJr does /1 seck
10 restrict itsel' to Incrdent reporls con.
cernlng reasonably relevant medical pro.
cedures. Without waving the foregOing
objection, eerendunl Hanover General
Hospital responds as 101l0wl5:
IDoclo's Alandele, Lo,sl., and Trescol',
There are no Incldenl reports on file
which can be deemed relevant to thiS
aCllon,
Dr. Samuel Klrkpal,lck,No Incldenl
reports ha\lIJ been Wed.
rred/(
t,lh:W
. SUI
ollh.
C')l.lnl
361 I
11110CC:
I\)n, I
pilla I
Ill)aln
v.vlal
Cl,)nSI
WOUII
480,9\
cho,,;
cesSI'
Although Plalnt"f!)' mollon as 1(') Oocln(
Kirkpatrick 1$ mool as 'ully an5wered, It re,
mains vlahle as 10 the Incldenl reports of Doc.
tors AlilndOIU, lOISler ilnd Trescol
Suction 425 4 of the Peer AI!YI6W Protection
Act Slates Ihal
l'lhe prOCeedings Bnd records of a rOView
commlttoe Shall be held In confidence
.lnd shall not be subject 10 dlscoyery or
IntrOduction into eYldence In Bny eMI dC-
lion against a pro'esslonal health care
prOVider iltlsing oul ollhe milllers whIch
ilrc the subject of evaluation and review
by SUCh committee and no person who
was In atlerH1ancl! at B meeting 0' Such
committee shall be permltled or reqUired
to testify In any such ciVil ilc!ion as 10
any eVidence or olher mallcrs produced
or presenled during Iho proceedings of
such commlllee or o1S to any findings,
recommendations, eYaluations. opinions
or other actions 0' such commlltoe or
any members thereof: PrOYldtxj, hOwQver,
Thallnformatlrm, documents or records
otherwlso llv.1ilable Irom orlOlnal sources
are nollo be construed as immune 'rom
dlscoyery or use In any such Clyil aCIIOn
merfjly because Ihey .....ere presenled dur-
Ing proceodlngs 01 such CCmmllteu, nor
should any person who testlr/es before
such committee or who 15 a member 0'
such commlltee be prevenled from test I,
tying as to matters wllhln hiS knowlodge,
but Ihe said Witness cannot be asked
about hiS lestlmony before such a com.
mlltee or opInIons 'armed by him as a
resull of ~ald committee heanngs
ASI
whicr
1t'1~ re,
pursu
wordE
the r
dl')mlt
23,
Th.
Dttler
andfl
mlSSI
repor
danl
1m
pc
ar
ar
ae
Ii
d'
p'
ti,
P'
P
R
II
A'
cant,
01 re
a "rE
Peer ReView Prole~llon Act, Act 0' July 20,
1974, P L 564, No, 19,1, as amended 1078, Oc,
lober 5, PL. 1121, No 262, Po. Sial, Ann. 1,1.
63 ~ 4251 el seq IPurdon Supp, 19881 lem,
pholSIS added) (hereinafter the Act).
ar
ir
Cl
a
he
Ie,
'.
rr,
Until recenlly, the fow cases Interpreting the
Act have Involved Only frial Court deCisions and
have baan almost equally split on the issue 01
whether a Slrlct or lIberal inlerprelation at Ihe
Act shOuld be u5p.d' In PennsylvanIa. the lor.
rent at debates between malpractIce plainllffs,
.,
-
~
r.
,I
:a
i
,,,..
, .
198
151 nallonal organization and IS nor specifically
mentioned In the Act as being a review com.
millee; howeve" the following examination 0'
the ,ellponslbllUles, purposelS and actions or
the JCAH .how. fhot III. Intended 10 be 'n,
cluded under Ihe Act,
In order to quall'y 'or reimbursement at
fund, Ihrough Ihe government's Medicare and
Medicaid mediCI' aSSlslance proQraml!'o,
ho~,pllall mu~lt meetlhe federally appro'1ed ac.
crCdllaUon sfandards as reviewed by !he JCAH
SII, NOle, PII' ROYI.w Pralle lion, at 337 The
JCAH Hacl' is an organization compfl5ed or the
Amellean College 0' SurQeon$, the American
Coltegv 0' PhYSicians, and Ihe American
Hospllal Assoclallon Bnd lis pu,poses, as
:$llUed in ils Certlllcale 0' Incorporallon, are:
(1) To establish standi1rr1s for Ih~
Opluallon of hOSpitals an(j Olhl!r nCiJllh
rolaled facilities and se"'lces;
(21 To conduct SU"'O)' and accredita-
tton proglams 1"31 WIll encourage
members of rhe health professions.
hOspitals. and Olhor health related
f,ICllltros and StnV:(L"3 vOlunlarlly
la) To promoto hllJh Quality 01 care
in all a5~ecf5 In older to gi....e patients
tne opllmal benefIts Ihal ll1edrcal
science has to after,
Ib) To apply certain bas,c p"nciple.
01 phYSical plllnl M'ely and m,lm.
tenance, Bnd of ,~r," lnt.!Jllon ,lnd
Jdministlalion of f 1" '01 effiCient
caro of Il1e pJ110nl, dn(j
Ie) To maintaIn the essential services
In Ihe facllllies through coordInated
ellon 0' the organized 51aHs and Ihe
governing bodies 01 Ihe faCtlltills;
(3) To recognil& compliance with stan.
dards by i~<;lllnr'l of CertlflCJt~s 0'
ACC(L't1ItJII()Il,
(4) To ,:",,..,j, :r:! programs 0' educalion
and re~Ij,JI\.ll, ",(1,; publish lhe re51J1Is
thereof which '....dlItHth'H the other plJr.
poses 0' Ihe Cl.:. ,..ullt'<)n and to accopt
gran Is, gifts, bequesls, and de....lces In
support of the purposos ollhe corpora.
lion: and
(5) To assume such other respon,
aiblllties olnd to conduct such other ae.
tl....llies as aro compatible With Ihe opera.
lion 01 su~h stand.seltmg, survey and Be,
credUation programs.
The legtslafure. in en.1ctlng the P€l'1r Roview
Protection Act, Chose not 10 define "revrew
organizations" by Irsttng cerlaln orgJntlJI'ons
and COmmitlees alS specifically Included
Iherlin, rather. they delineti thallerm loosely
150 as to encompass iii wide Vaflely 0' olganlli'
lions sharing the stated goals.
ThiS elo,
prl....,'eaes,
pllvile,;e 01
Immediate I
bocause 0'
son. Beel ..1
190, 17a A,
holding Iho
munlcahon
anginal SOu
or Informall
lion while p'
formal Ion t
Sonde,,"on,
Fowl" I. dlO
hit supplle
thai tho JC,
tlon of Ihelr
lion Manual
We hold that when Ihe above In'ormatlon 15
considered with a liberal conatrucllon 0' the
Actin acco,dance wllh S.nd""on, the JCAH
IS wlthm Ihe pUf'\Ilew 01 Ihe Act IJS a "re....lew
commlllee," More 'Plcllleolly, Ihe JCAH "1.
"""tthln all 01 the foHowlng de',nIUonal phrases:
(1) a "commUlee establiShed pursuanl
10 a medlcaf aSSHSlance program'
(2) "a commlllee of an association 0'
profesSional health care provlllors
revieWing fhe opelatlon 01 hospitals. nur.
Sing homes, convafescent homes or
other health care 'acll.IIQS"
(3) "any commillee engaging In peer
re'/I8W"
(<4, "any hospital board, commillee or
individual re....iewlng Ihe profeSSional
qualifiCations or actlvilios 0' itS IndiVidual
stat' or .tppllCants 'or admISSIon
theleto"
(a/II Inlo,
Comml.,
process,
Interview
report .r,
matters I
and Ihe
,eport \\
.urveyed
report p
ho.plto' ,
the dlscrl
required
.hall nOI
ed Ihrou
Wllhoul
authonza
Further. as Ihe Court in Fowler must have
I:rst determined Ihat the JCAH was m fact a
revIew commillee In ardor to reach the subse,
quent question 0' the Original source rule, the
only case supportIng tno PlaIntiffs on their se.
cond Issue is n.Uuratly against thom on the
r~SlJe 01 the JCAH being a review commlllcQ,
FJJwlel at ~3J; c'. Note, Peer Review Prol.e,
lion, al 331.39; Comment, Medico' Pe., Review,
al 555>56, Niven v, Slquelra, 109 III. 2d J57, 487
N E2d 937 (1985)
w~ now turn 10 an examInation of tno 'mal
Question be'ore Ihe Court. whether the JCAH
reports ,ve discoverable under the Fowler
Court.s Interpretation 0' lhe Act.
Furthe" [
SUP", as or
the IIlIgallo,
with its ,ep
Supreme Cc
fidentlal unl
denied Ihe
Delendant
special sign
.eek Ihe aid
jurisdictIon
Ihe P,oducl
The portion 0' the Fowler deCISion dedicated
fa thiS questton IS a mere one p.lragraph and
''1 devoid 0' CIlJtlon$, The Court concluded With
~.'rome bre....lty that Since the de'endant
hospital aHered no support for hIS theory 1l1al
fne JCAH would deny access to their leport$
10 thfl ptalntltf, that they were therelore ob.
latnable from Ihe original SOurce (Ie. the JCAH),
We conclude differently for two reasons
la~lIy, PI
able 10 provr
,"'ormation
argument Ih
Iha Sand.r.:
Ihl. "doe.
judgl1"ent It
SIItI ha....e ac
as well as ar
Persons wit:
First, we find that Ihe Court In Fowler
miSinterpreted Ihe intention of the original
source rule 0' the Act which states "fIJhatll'.
'ormarlon, documents QI records otnerwls8
ayaildble trom origInal sources are nol to be
r.on5lrued as rmmune from dlsco....ery or use In
any such CIVil action merely because they were
preSented during proceedings of such commit.
tees
,'. 4' - ,
I ....4..~_ ' ~1"'''~'''''tl'''~'''II''.l~l'''''''It<ftf'' ......:I'........-...r'.Ii1.tfII.,.'j..,
k'lIned tnat lerm loo:iel~'
I wide ...artCI)' of organlZ&'
lted goals
ThiS clause lIS analagou!5 to e...identliJf)'
pn~lleg8s, such BI5 the ph)'&iclanpalicnt
prl,lIege of 42 Pa CS ~929, In Ihalll doe. nol
Immediately make Informatlon prl...lleged
bUCBUS8 0' Its communlCBlIon 10 the right per,
son Se., ',g., Sween.y 'I. Orren 116 Pa Super.
190, 176 A 649 (1035110no ollho many ca.os
holding that more Is rcqljlrl;U to muf e n com.
munication to 11 doctor pfi"'II(Ooud). Rather, the
orIginal source rule relalns Ihp dl5coverabillly
of Inlormallo" dJ!lcoverablt.' pilar te r""'~~'
lion while prOler.lIng "'Ie com~i1allon oltnal!li
lormatlon by the peer re...iew commillee Cl"
Sandlrlon, al501, 522 A 2d al1143 Socondl.,
Fowl., lIS dl6linguishllble as the Defendant hlHf
hi. supplied the Court wIth e"ldcnce show', tr.~
Ihal the JCAH would nol permll the d"tr,Ou'
lion of Ihelr reportlS. As noled In Ihe Accredlta.
lion Manual lor Hospitals. cited by bolh par1I(!S.
I-'e abo...e lnlonnatlon 16
)(:ral con61ruclton at Ihe
'Ih Slndereon, Ihe JCAH
01 the Acl as 8 "review
)eclllc,"'y, Ihe JCAH IIts
~ino ddmtlional phrases:
~ nfabll$hed pUr!iUanl
stance program'
e 01 an association of
B'th cafc prOvl(hH6
allan 01 h06pllals. nur.
\Vlllescenl homes or
facilities"
ttoe engBglng In peer
II board, commlllee or
Ing Ihe professional
:!lvilteG Ofl15 Indl'o'lduill
3,nts lor admls$lon
lalll Informallon oblalnad by Ihe jolnl
CommiSSIon In the accredltallon lSUf\ley
process, Including 1he public Information
inlervlew, end the conlcnt 01 the 5urve~
report are considered 10 be conlld(''''~!c'
mBlters between the Joinl CommiSSion
and Ihe su"eyod hospllol. Thl. su"oy
'eport will bo pro,'ded only 10 Ihe
surveyed hospital. Conlonls ollhe su"ey
report j:lfO'llded to the participating
ho.pltal may Oe dlssomlnaled solely al
Ihe dlscrellon of the Hospital. Except as
required by law, the Joint CommiSSion
shalt not rerelJ~e any Information obtain.
ed Ihrough the surve)' at an)' hospllal
Without the hospllal's wrltlen
authorlzallon.
lur1 In Fowler musl have
the JCAH was In facl a
()(der 10 reach the subse.
e Orloin~1 source rule, the
I Ihe PI,)I f tlll:l on their 50'
[lIly 0'],1'n51 thorn on the
l "0 a ft:Vlew commillfl'!,
ne, Peer Review Protee,
l( nl, Pl.erlical Peer Revlow,
quolra, 109 III ,2d 357,467
, cxarr.ln.1tlon of the ft' al
Courl . y.~ether the JCAH
Hable un.jer lhe Fowle,
n of the Act.
Further, Defendant cites the Niven case,
.upr.1 as one where the JCAH, not B party 10
the litigation. refused to suppl)' the Plaintiff
with lis repor1s In NI'Iens, .uprl, Ihe lllinOi&
Supreme Court Ileld thai the lepor1s are con.
fldential under lhe illinOIS Pel'r Ac...icw Act and
denied the Plaintiff's discovery request The
Oefenda"t also notes Ihal Ihls case is 01
special signlllcance as the Plaintiffs t'lc:'e must
lSeek the aid of the illinois Cour1!S, wt'llch nave
jurisdiction over lhe JCAH. In order 10 compel
Ihe production of lhe repOr1!.
Fowler d('CISIon dedlcaled
mere (,('\{: paragraph and
Tl1e C('ur1 concluded With
.11 since the delenrjant
;u~pOr1 for his theory lhat
ly access 10 lheir reports
they w(;re tnerelore ob,
llnal source lie .the JCAHlr
?nlly for Iwo reasons.
lastly, Plalnllfl. claim that Ihey will nol be
able 10 pro...e tholr causes of action aMen I this
Inlormalion. The slatute itself addrened thiS
argument through the original source rule and
the Slndereon Court uplalned, startlnQ thai
this "does nol result In Immediate summary
jUl1gmanl tor Ihl defendanlO 'The pla'nlilf will
!Still tle...e Bccen 10 hiS own medical records
8S well 8S an)' other relevant business records
Pereon. WIth "..t-hand knowledge Of Ithll In,
lat the Cour1 In Fowl.,
mtenltOn of the original
,cl which slales "jljhwt In.
1'S or recordS othcl"INise
1al sou'ces are nol to be
,e frorTI Ol5co...ery or use '"
merely because the)' were
) ;E'edtngs of such commIt.
1:}9
c'denl could be compel lId 10 lestlly, Finally,
the malprocllce Victim can hlr.. hll own ..pert
wllness to evaluate and give his opinion ot th.
d"clos<'~ ,.CIO'" Id (citing Nole, /lO Mo, L R.
al 475): NNen, IlUprl (addressing Ihl "corporall
Mgllgante" elalm 01 the IlIlno.. Plalntl" recent,
Iy lound y11011 In Pennsyl..nle by Thomplon
v, N..on Ho.p" 370 Pa Super, 11~, m A,2d
117/, alloc.lur granled!>42 A,2d 1371).'/1 (19661),
r", th(' lor('oolng rea!!lonlS we agree v.lIh
F"L\tHIUH Ju;J\jl.: Sweet's dlMenlln Fow., and
tlOIl1lha1 the JCAH rcportfl OfIJ protected flom
dl5CO"'ury b)' the provl5ionfl 01 the Peer Re...lew
ProtecllOn Act
Accordingly, "a I..ue the lollowlng Order,
BY THE COURT,
Richard H, Horn, Judgl
Daled, March 21, 1989
ORDER
AND NOW, TO WIT, this 2151 day of 1969,
Ihe objections 01 Dolendanl Hano,er General
Hospllalto Plalnlllls' Int.rrogalies are suslaln.
ed by the COU" and Plaint Ills' Motion to
Dismiss them Is denied,
BY THE COURT,
Richard H, Horn, Judgl
FOOTNOTES
'Cases upholding prolectlon: SchwlrU ., Tn.
County Hosp,. 74 Pa, D. & C 2d 52 (Phlla, 19751:
Holliday Y. Kllmowlkl, 75 Pa, D, & C,2d 406
(Wash, 1976): Blndes y, Kllmow.kl, 3 Pa. D, &
C:ld 11 (Fayeli. 1977): Obenlkl y, Brook., 7 PI.
D, & C,3d 253 (Phlla 1976), Case. permllling
dl,coyery: BollIn ., Holy SpIrit HOIP. 106
Oauph, Co, Aep. 40. 40 D, & C,3d 372 (1964);
Trlnl ., lenc..ter Gen" Hasp. 70 lane, LAe"
(1966)
I Se'1 Note, P.er R.vl.w FrolBellon: '.nn.
Iyl..n'" APPrlllch e' the Croll roedl, 91 DiCk,
LAoy, 329 (Fall 19B6); Commont, Modlcal Peer
Ae,'ew Prolecllon In the Health Caretndustry,
52 Temp, La, 552 (19791; N~te, The MI.leu"
Aule: HOlplllt PHr Review '" Olleov.rable In
Mldlcal M.lprletlce C...., /lO Mo, LA, 4W
11965),
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