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HomeMy WebLinkAbout2006-2044 Civil SUSAN BULZONI, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 06-2044 CIVIL GREGORY HANKS, M.D., and : ORTHOPEDIC INSTITUTE OF : PENNSYLVANIA, : Defendants : JURY TRIAL DEMANDED IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE BAYLEY, P.J. AND HESS, J. OPINION AND ORDER This is a medical malpractice action in which the plaintiff, Susan Bulzoni, alleges that she was misdiagnosed and mistreated by the defendant, Gregory Hanks, M.D., an “employee, contractor, subcontractor, agent, and/or servant” of the defendant Orthopedic Institute of Pennsylvania. Compl., p. 4. The preliminary objections of the defendants include a motion to strike for insufficiency of pleading. In her brief, the plaintiff states that: Defendants are on notice that they applied an inappropriate cast on the plaintiff, failed to advise the plaintiff not to bear weight on her left lower extremity, failed to perform surgery on plaintiff’s left ankle injury, failed to recognize and treat the talus fracture, failed to recognize the nonunion of plaintiff’s left ankle fracture, and, most importantly, failed to follow the recommendations set forth in the 1998 Orthopedic Knowledge Update – Foot and Ankle from the American Academy of Orthopedic Surgeons. Therefore, plaintiff’s complaint is sufficiently specific to overcome Preliminary Objections as Defendants are on notice of the allegations made against them. Unfortunately, the allegations of negligence against Dr. Hanks and the Orthopedic Institute of Pennsylvania contain far more than the foregoing. In fact, they contain numerous overly broad NO. 06-2044 CIVIL and vague allegations giving rise to the problem stated in the now famous footnote in Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). A few examples include: 33.(a) Failing to exercise the care and judgment of a reasonable physician under like circumstances; (b) Failing to exercise the care and judgment of a prudent physician in the method employed; (c) Exercising improper care and skill; (d) Failing to conform [sic] the requisite standard of reasonable medical care under the circumstances; (e) Failing to possess the required degree of skill and knowledge required under the circumstances … etc., etc., etc. We would normally attempt to cull out the offending paragraphs but, in this case, the lack of 1 specificity is so pervasive as to require that the plaintiff replead. One encounters similar problems in paragraph 36 of the complaint though, as those allegations relate only to allegations of negligence in hiring or failing to supervise Dr. Hanks, we are satisfied that they can withstand preliminary objection. The matter is, in any event, rendered moot inasmuch as the plaintiff agrees that she is not asserting a corporate liability claim against Orthopedic Institute of Pennsylvania P.C. but, rather, is asserting a vicarious liability claim only. The defendant has also filed a preliminary objection to the plaintiff’s claim for punitive damages. The complaint describes the conduct of the defendants as “negligent, reckless, careless and gross misconduct.” Compl. p. 30, 36. In the count against Dr. Hanks, however, the plaintiff alleges only that the doctor was “careless and negligent.” Compl. p. 33. The complaint, therefore contains an anomaly whereby it is alleged that the agent was merely “negligent” 1 We note, also, that the introduction to paragraph 33 contains the word “interalia [sic]” which, alone, suggests that the plaintiff intends to later assert allegations of negligence not previously pled. 2 NO. 06-2044 CIVIL whereas the vicariously liable principal was “reckless.” Thus, the complaint does not and cannot state a cause of action for punitive damages. While punitive damages may be awarded on the basis of vicarious liability, see Shiner v. Moriarity, 706 A.2d 1228 (Pa. 1998), it is axiomatic that the principal cannot be reckless when the agent causing the harm was merely negligent. In addition, punitive damages cannot be awarded against Orthopedic Institute of Pennsylvania P.C. founded upon vicarious liability unless it is alleged that Orthopedic Institute “knew of and allowed” the conduct of Dr. Hanks. 40 P.S. 1303.505(c). There is no allegation in the complaint in the count against Orthopedic Institute that it either knew of or allowed Dr. Hanks’s conduct. While it may not be necessary to do so, we will, for the clarity of the record of this case, sustain a preliminary objection to any purported claim for punitive damages. ORDER th AND NOW, this 20 day of September, 2006, by agreement of the parties, the preliminary objection of Orthopedic Institute of Pennsylvania to any purported claim for corporate liability is SUSTAINED. The preliminary objections of the defendants to any purported claim for punitive damages is SUSTAINED. The preliminary objection of the defendant, Gregory Hanks, M.D., to paragraph 33 of the plaintiff’s complaint is SUSTAINED and said paragraph is stricken with a direction to the plaintiff to file an amended complaint. BY THE COURT, _______________________________ Kevin A. Hess, J. 3 NO. 06-2044 CIVIL Aaron S. Decker, Esquire For the Plaintiff Craig A. Stone, Esquire For the Defendants :rlm 4 SUSAN BULZONI, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 06-2044 CIVIL GREGORY HANKS, M.D., and : ORTHOPEDIC INSTITUTE OF : PENNSYLVANIA, : Defendants : JURY TRIAL DEMANDED IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS BEFORE BAYLEY, P.J. AND HESS, J. ORDER th AND NOW, this 20 day of September, 2006, by agreement of the parties, the preliminary objection of Orthopedic Institute of Pennsylvania to any purported claim for corporate liability is SUSTAINED. The preliminary objections of the defendants to any purported claim for punitive damages is SUSTAINED. The preliminary objection of the defendant, Gregory Hanks, M.D., to paragraph 33 of the plaintiff’s complaint is SUSTAINED and said paragraph is stricken with a direction to the plaintiff to file an amended complaint. BY THE COURT, _______________________________ Kevin A. Hess, J. Aaron S. Decker, Esquire For the Plaintiff Craig A. Stone, Esquire For the Defendants