HomeMy WebLinkAbout98-3107 CivilBETTY K. DORSEY,
Plaintiff
Vo
MARK E. PINKER, D.P.M., and
CARLISLE HOSPITAL,
Defendants
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION--LAW
No. 98-3107 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 4th day of August, 1999, upon consideration of Defendants'
preliminary objections to Plaintiff's complaint, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. The preliminary objection regarding the initial absence of a
verification by a party from the complaint is deemed moot;
2. The word "reckless" is stricken from paragraph 14(i) of the complaint;
3. The words "inter alia" in the introductions to paragraphs 14 and 15,
and paragraph 14(i) in its entirety ("[b]eing otherwise negligent,
careless and reckless as may be demonstrated at trial or terminer [sic]
through discovery"), are stricken from the complaint;
4. Plaintiff is directed to file a more specific pleading as to the remaining
averments of negligence in paragraph 14 of the complaint, with the
exception of paragraph 14(g), and as to the averments of negligence in
paragraphs 15(b) and 15(d) of the complaint.
5. The demurrers to paragraphs 14(e) and 14(0 as they relate to Carlisle
Hospital and the demurrer to paragraph 15(c) are sustained.
6. In all other respects, Defendants' preliminary objections are denied.
Plaintiff is granted 20 days from the date of this order in which to file an amended
complaint in accordance with the order.
James J. Kayer, Esquire
Liberty Loft
4 East Liberty Avenue
Carlisle, PA 17013
Attorney for Plaintiff
Kendra D. McGuire, Esquire
Robert A. Evarts, Esquire
126 East King Street
Lancaster, PA 17602-2893
BY THE COURT,
esley 01er(~J, J. ~t
Attomeys for Defendant Mark E. Pinker, D.P.M.
Susan Simpson Brown, Esquire
John F.X. Monaghan, Jr., Esquire
7837 Old York Road
Elkins Park, PA 17602-2893
Attorneys for Defendant' Carlisle Hospital
BETTY K. DORSEY,
Plaintiff
Vo
MARK E. PINKER, D.P.M., and
CARLISLE HOSPITAL,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION--LAW
No. 98-3107 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HESS and OLER, JJ.
ORDER and OPINION OF COURT
OLER, J., August 4, 1999.
In this professional negligence action, a patient has sued a podiatrist and hospital
for personal injuries allegedly arising out of improper treatment of a bunion. For
disposition at this time are preliminary objections filed by the defendants to the plaintiff's
complaint.
Preliminary objections of the podiatrist relate to the absence of a proper
verification on the complaint, the complaint's characterization of the doctor's conduct as
reckless, the inclusion of general allegations of negligence, and a lack of specificity as to
agents of the doctor. Preliminary objections of the hospital relate to the inclusion in the
complaint of general allegations of n6gligence, lack of specificity as to agents of the
doctor and hospital, and failure to state a claim for improper practice of medicine upon
which relief can be granted.
For the reasons stated in this opinion, the preliminary objections will be sustained
in part and denied in part.
STATEMENT OF FACTS
The present action was commenced by praecipe for writ of summons on June 3,
1998. A complaint was filed on July 21, 1998.
The allegations of the complaint may be summarized as follows: On February 7,
1996, Plaintiff Betty K. Dorsey consulted Defendant Mark E. Pinker, D.P.M., in
connection with a condition of her right foot which was diagnosed as hallux
abductovalgus deformity with metatarsus primus varus deformity.~ Dr. Pinker "was the
actual or apparent agent of Defendant, Carlisle Hospital.''2
4. At all times material [to the case], Plaintiff was under the
treatment, care and attendance of the Defendants individually, jointly,
severally through their agents, servants and employees, who were acting
with (sic) the course and scope of their agency or employment, and under
control or right of control of Defendants.3
Dr. Pinker recommended a bunionectomy.4 Plaintiff was admitted to Defendant
Carlisle Hospital on June 4, 1996, for this purpose.5 At the hospital, Dr. Pinker "or
agents of the Defendant, Carlisle Hospital, obtained an oral medical history of the
Plaintiff,''6 Dr. Pinker examined Plaintiff,7 and Dr. Pinker performed "a modified
McBride bunionectomy with Reverdin/Green osteotomy, first metatarsal.''8
Also at the hospital, "Defendant, Carlisle Hospital, and Dr .... Pinker caused
laboratory testing to be performed on material excised from the Plaintiff's foot,''9 and
"caused a radiological examination of the Plaintiff's foot.''~° In addition, Dr. Pinker
"discussed the surgery with the Plaintiff.'d~
Plaintiff's complaint, paragraphs 1-2, 6-7.
Id., paragraph 5.
Id., paragraph 4.
Id., paragraph 8.
Id., paragraph 9.
Id., paragraph lO(a).
Id., paragraph 10(b).
Id., paragraph lO(c).
Id., paragraph lO(d).
~o Id., paragraph lO(e).
ild., paragraph 10(f).
2
Subsequent to the surgery, "Plaintiff has continued to suffer severe persistent and
chronic pain, particularly when she ambulates.''t2 Plaintiff's "second metatarsal on her
right foot has become longer than the first metatarsal and has become the weight bearing
toe.,,13
Because of negligence on the part of Defendants, Plaintiff has been "compelled to
undergo additional treatment from other health care providers,'d4 and "is prevented from
resuming a normal lifestyle due to her continued pain and suffering that she experiences
when standing, walking or otherwise putting weight on her right foot.'ds
14. The negligence of the Defendant, Dr. Mark E. Pinker, D.P.M.,
his agents, servants and or employees, consisted inter alia of the
following:
a. Failure to provide the degree of care and skill
ordinarily exercised in similar cases by other
physicians and doctors;
b. Failure to exercise the requisite degree of care and
skill;
c. Failure to possess the degree and knowledge of
skill ordinarily possessed bY other physicians and
doctors;
d. Failure to conform to the requisite standards of
care under the circumstances;
e. Failure to properly diagnose and treat the untoward
conditions which resulted in Plaintiff's continued
go
suffering;
Failure to
on June 4,
properly examine and treat the Plaintiff
1996 and on occasions prior to that date;
Failure to properly and adequately supervise
Defendant, Carlisle Hospital's agents, servants or
employees during the examination and surgical
treatment of Plaintiff;
12 Id., paragraph 11.
13 Id., paragraph 12.
14 Id., paragraph 17(a).
~5 Id., paragraph 17(b).
h. Failure to exercise reasonable care in the diagnosis
and treatment of PlaintiWs condition for which
prompt diagnosis and treatment were critical for
effective medical treatment;
i. Being otherwise negligent, careless and reckless as
may be demonstrated at trial or terminer (sic)
through discovery;
j. Negligence as a matter of law.~6
15. The negligence of Defendant, Carlisle Hospital, its officers,
doctors, nurses, agents, servants or employees, consisted inter alia of the
following:
a. Plaintiff incorporates by reference the acts of
negligence as stated in the previous paragraph;
b. Failure to exercise reasonable care under the
circumstances;
c. Failure to diagnose and respond in the timely manner
to PlaintiWs condition;
d. Negligence as a'matter of law;
e. Failure to properly supervise its agents, servants or
employees.~7
16. Defendant, Carlisle Hospital, is responsible for the negligent
acts and omissions of its agent, Defendant, Dr. Mark E. Pinker, D.P.M.,
and its other agents, servants or employees.~8
The verification for Plaintiff's complaint was signed by her attorney.~9 A
praecipe to substitute a verification signed by Plaintiff was filed on August 13, 1998,
accompanied by the new verification.
Preliminary objections to the complaint were filed by Defendant Pinker and
Defendant hospital on July 29, 1998, and August 6, 1998, respectively. The preliminary
objections of Defendant Pinker (1) noted the filing of the complaint without a verification
~6 Id., paragraph 14.
~7 Id., paragraph 15.
~8 Id., paragraph 16.
19 The verification indicated that Plaintiff was "unavailable."
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signed by a party, but the preliminary objection did indicate not what relief Defendant
was requesting for this deficiency,2° (2) requested that the reference to reckless conduct
in item 14(i) be stricken in the absence of factual allegations supportive of punitive
damages,21 (3) requested that paragraph 14 of the complaint be stricken pursuant to the
Connor doctrine,22 due to the generality of allegations of negligence,23 and (4) requested
that references to unnamed agents be stricken or subjected to an order for more
specificity, due to their imprecise nature.24
Preliminary objections of Defendant hospital consisted of (1) a motion to strike
items 14(b), 14(c), 14(i), 14(j), 15(b), and 15(d), as well as the words inter alia at the
beginning of paragraphs 14 and 15, from the complaint, pursuant to the Connor doctrine,
due to the generality of allegations of negligence,25 (2) a motion for a more specific
pleading with respect to paragraph 4, items 14(g) and 15(e), and paragraph 16 relating to
unidentified agents of the doctor and hospital,26 and (3) a demurrer with respect to items
14(e), 14(f) and 15(c), due to a legal disqualification of hospitals from the practice of
medicine .27
Oral argument was held on Defendants' preliminary objections on March 3, 1999.
At the argument, it was agreed that the substituted verification rendered moot any issue
as to improper verification of Plaintiff's complaint. In addition, Plaintiff's counsel
20 Preliminary objections to Plaintiff's complaint, filed by Defendant Pinker, paragraph 2.
2~ Id., paragraphs 4-5.
22 See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).
23 Preliminary objections to Plaintiff's complaint, filed by Defendant Pinker, paragraphs
6-73.
24 Id. paragraphs 74-78.
25 Preliminary objections to Plaintiff's complaint, filed by Defendant Carlisle Hospital,
paragraphs 4-9.
26Id. paragraphs 10-19.
27 Id., paragraphs 20-26.
conceded the validity of the demurrer of Defendant Carlisle Hospital based upon the legal
disqualification of hospitals from the practice of medicine?
DISCUSSION
Preliminary Objections of Defendant Pinker
Request to strike characterization of Defendant's conduct as "reckless." In
characterizing the conduct of Defendant Pinker as reckless, Plaintiff intended to describe
his mental state as one of a "conscious disregard of or indifference to a situation creating
a high risk of physical harm to the Plaintiff." Plaintiff's Brief in Opposition to
Preliminary Objections of Defendants, Mark E. Pinker and Carlisle Hospital, at 3.
"Punitive damages may be awarded where the defendant's conduct evidences a reckless
indifference to the rights of others." Taylor v. Albert Einstein Medical Center, 923 A.2d
1027, 1037 (Pa. Super. Ct. 1998).
"[A]lthough malice, intent, knowledge, and other conditions of mind may be
averred generally in a pleading,29 the attendant material facts pled must support such an
averment." Robbins v. Cumberland County Children and Youth Services, 48 Cumberland
L.J. 82, 94 (1999); see Waklet-Riker v. Sayre Area Education Association, 440 Pa. Super.
494, 656 A.2d 138 (1995); see also Miketic v. Baron, 450 Pa. Super. 91,675 A.2d 324
(1996). In the case sub judice, no underlying facts have been pled which support an
averment of a reckless state of mind on the part of Defendant Pinker (which might be
used as a basis for a claim for punitive damages). For this reason, the request of
Defendant that the characterization of his conduct as reckless in the complaint be stricken
will be granted.
Connor objections. In Connor v. Allegheny General Hospital, 501 Pa. 306, 461
A.2d 600 (1983), the Pennsylvania Supreme Court held that the use of the language
"otherwise failing to use due care and caution under the circumstances" enabled the
plaintiff to amend the complaint to specify "the other ways in which [the defendant] was
28 See Plaintiff's Brief in Opposition to Preliminary Objections of Defendants, Mark E.
Pinker and Carlisle Hospital, at 6; Act of December 20, 1985, P.L. 457, §10, 63 P.S.
{}422.1 (practice of medicine in general limited to medical doctors).
29 See Pa. R.C.P. 1019(b).
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negligent in [that] case." Id. at 310, 461 A.2d at 602. The court elaborated on this
holding by noting that, "[i]f [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[plaintiff's] complaint." Id. at 311 n.3,461 A.2d at 602 n.3.
However, in appropriate cases an allegation which is somewhat general in nature
may be construed in the context of the complaint as a whole and regarded as surplusage
rather than as impermissibly broad. Ramsey v. Barnett, 7 Pa. D. & C.2d 693, 695
(Mercer Co. 1956). In addition, a motion to strike is not a substitute for a motion for a
more specific complaint. Borough of New Cumberland v. Gates, 47 Cumberland L.J. 21
(1997).
In the present case, the use of the term "inter alia" in the introduction to paragraph
14 of Plaintiff's complaint, and item 14(i) ("[b]eing other~vise negligent, careless and
reckless as may be demonstrated at trial or terminer [sic] through discovery"), fall within
the ambit of the Connor holding and these words ~vill be stricken from the complaint.
The other individualized averments of negligence contained in paragraph 14 of Plaintiff's
complaint, with the exception of item 14(g) ("[f]ailure to properly and adequately
supervise Defendant, Carlisle Hospital's agents, servants or employees during the
examination and surgical treatment of Plaintiff"), are overly broad and more
particularized averments in the pleading which might suffice to limit their import are
lacking; for this reason, Plaintiff will be directed to file a more specific pleading as to
those items.
Request to strike references to unnamed agents. "[D]eficiencies of specificity
will generally not result in relief on preliminary objections where the objecting party may
be presumed to have at least as much information as does the pleader." Clark v. General
Mills, Inc., 48 Cumberland L.J. 124, 127 (1999) (citation omitted). In addition, a
preliminary objection based on lack of particularity may, in certain cases, be denied on
the ground that discovery is a more appropriate vehicle to resolve the matter. See 2
Goodrich-Amram 2d §1017(b):24, at 268 (1991).
In the present case, it would appear that Defendant Pinker is in a better position
than Plaintiff to know what agents may have been involved in her treatment. It is the
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court's view that this matter can be relegated to the discovery process without prejudice
to Defendant. As a result the request that certain references to unidentified agents in
Plaintiff's complaint be stricken will be denied.
Preliminary Obiections of Defendant Carlisle Hospita!
Connor objections. Based upon the foregoing discussion of Defendant Pinker's
preliminary objections pursuant to Connor v. Allegheny General Hospital, 501 Pa. 306,
461 A.2d 600 (1983), the preliminary objection of Defendant Carlisle Hospital in the
form of a motion to strike various allegations of negligence due to generality will be
sustained as to the term "inter alia" in the introduction to paragraphs 14 and 15 of
Plaintiff's complaint and as to item 14(i) of the complaint ("[b]eing otherwise negligent,
careless and reckless as may be demonstrated at trial or terminer [sic] through
discovery"), and Plaintiff will be directed to file a more specific pleading with respect to
the remaining items referred to in this motion.
Motion for a more specific pleading. "The question to be decided when a
preliminary objection in the form of a motion for a more specific pleading is interposed
... is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a
response ...."2 Goodrich-Amram 2d §1017(b):21, at 265 (1991). A motion for a more
specific pleading will be denied when "the objecting party may be presumed to have at
least as much information as does the pleader." 5 Standard Pennsylvania Practice 2d
§25:60, at 170 (1993); see Clark v. General Mills, Inc., 48 Cumberland L.J. 124 (1999).
In addition, a preliminary objection based on lack of particularity may, in certain cases,
be denied on the ground that discovery is a more appropriate vehicle to resolve the
matter. See 2 Goodrich-Amram 2d §1017(b):24, at 268 (1991).
Based on these principles and the discussion above regarding preliminary
objections of Defendant Pinker to averments concerning unidentified agents, the court is
of the view that the motion of Defendant Carlisle Hospital for a more specific pleading as
to unidentified agents should be denied. It would seem that the hospital would be in a
better position than Plaintiff to know of the involvement of agents in her care, and that
the matter may properly be relegated to the discovery process for further particulars. For
this reason, the motion for a more specific pleading will be denied.
8
Demurrer. As noted in the Statement of Facts above, Plaintiff's counsel has
conceded the validity of the demurrer of Defendant Carlisle Hospital to any claim based
upon its practice of medicine.
sustained.
For this reason, the demurrer in this regard will be
ORDER OF COURT
AND NOW, this 4th day of August, 1999, upon consideration of Defendants'
preliminary objections to Plaintiff's complaint, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. The preliminary objection regarding the initial absence of a
verification by a party from the complaint is deemed moot;
2. The word "reckless" is stricken from paragraph 14(i) of the complaint.
3. The words "inter alia" in the introductions to paragraphs 14 and 15,
and paragraph 14(i) in its entirety ("[b]eing otherwise negligent,
careless and reckless as may be demonstrated at trial or terminer [sic]
through discovery"), are stricken from the complaint.
4. Plaintiff is directed to file a more specific pleading as to the remaining
averments of negligence in paragraph 14 of the complaint, with the
exception of paragraph 14(g), and as to the averments of negligence in
paragraphs 15(b) and 15(d) of the complaint.
5. The demurrers to paragraphs 14(e) and 14(f) as they relate to
Defendant Carlisle Hospital and the demurrer to paragraph 15(c) are
sustained.
6. In all other respects,-Defendants' preliminary objections are denied.
Plaintiff is granted 20 days from the date of this order in which to file an amended
complaint in accordance with the order.
9
BY THE COURT,
/s/J. Wesley Oler,
J. Wesley Oler, Jr., J.
James J. Kayer, Esquire
Liberty Loft
4 East Liberty Avenue
Carlisle, PA 17013
Attorney for Plaintiff
Susan Simpson Brown, Esquire
John F.X. Monaghan, Jr., Esquire
7837 Old York Road
Elkins Park, PA 19027
Attorneys for Defendant Mark E. Pinker, D.P.M.
Kendra D. McGuire, Esquire
Robert A. Evarts, Esquire
126 East King Street
Lancaster, PA 17602-2893
Attorneys for Defendant Carlisle Hospital
10