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HomeMy WebLinkAbout97-1879 CivilPATRICIA S. GORDON and · ROBERT GORDON, her husband, · Plaintiffs · VS. : : JAMES D. TAGGART, M.D., : CARLISLE IMAGING ASSOC. : INC., LAWRENCE K. THOMPSON: M.D., AESTHETIC & : RECONSTRUCTIVE SURGERY : OF CENTRAL PA., P.C., : HENRY S. CRIST, M.D.and : CARLISLE HOSPITAL, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1879 CIVIL TERM 'JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE DEFENDANTS BEFORE HESS, J. AND NOW, this ORDER z ~-~day of July, 1998, upon consideration of the preliminary objections to plaintiff's complaint filed by Defendants Lawrence K. Thompson, M.D., and Aesthetic & Reconstructive Surgery of Central PA, P.C., and for the reasons stated in this accompanying opinion, it is ORDERED and DIRECTED as follows: 1. Defendants' motion for more specific pleading with regard to plaintiff' s allegations of negligence contained in subparagraphs A, B, C, K, and Y of paragraphs 94 and 102 is DENIED. 2. Defendants motion for more specific pleading with regard to the breach of informed consent cause of action in Count II contained in subparagraphs A, B, C, D, E, F, and G of paragraph 97 is DENIED. 3. Defendant's preliminary objection to plaintiffs claim for punitive damages is SUSTAINED, with leave granted to plaintiff to file an amended pleading within ten (10) days of the date of this order, consistent with the court's opinion, if they can do so. Defendant is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, thirty (30) days from the date of this opinion to file an answer. Robin J. Marzella, Esquire Patrick Lauer, Esquire For the Plaintiffs Evan Black, Esquire April L. Chamberlain, Esquire Francis E. Marshall, Jr., Esquire S. Walter Foulkrod, III, Esquire For the Defendants BY THE COURT, :rlm PATRICIA S. GORDON and · ROBERT GORDON, her husband, · Plaintiffs ' VS. : JAMES D. TAGGART, M.D., : CARLISLE IMAGING ASSOC. : INC., LAWRENCE K. THOMPSON: M.D., AESTHETIC & : RECONSTRUCTIVE SURGERY : OF CENTRAL PA., P.C., : HENRY S. CRIST, M.D.and : CARLISLE HOSPITAL, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1879 CIVIL TERM JURY TRIAL DEMANDED IN RE: PRELIMINARY' OBJECTIONS OF THE DEFENDANTS BEFORE HESS, J. OPINION AND ORDER This cause of action arises from events occurring between June of 1994 and April 1996. The following facts are alleged in plaintiff's complaint. After consulting with her family physician about problems she was experiencing with her left breast, plaintiff Patricia S. Gordon was advised to have performed, and did have performed, a pair of mammograrns. These mammograms produced suspicious findings that prompted the plaintiff's referral to defendant Thompson, a surgeon with defendant Aesthetic & Reconstructive Surgery of Central Pennsylvania, P.C. At the time, plaintiff, was complaining of changes and pain in her left breast. As a result of her complaints and the radiographic and physical examination f'mdings, a breast biopsy was performed on or about September 9th, 1994, at defendant Carlisle Hospital by defendant Thompson, Taggart, and/or agents, apparent agents, servants, and/or employees of 97-6684 CIVIL TERM defendant Carlisle Hospital and defendant Carlisle Imaging Associates, P.C. According to the plaintiff, the named defendants failed to properly identify and localize the abnormality. The tissue specimens from the biopsy were then sent to the pathology department of defendant Carlisle Hospital where they were interpreted by defendant Crist and/or the agents, apparent agents, servants, and/or employees of defendant Carlisle Hospital. It is alleged that defendant Crist failed to properly examine the tissue specimens and reported that there was no evidence of malignancy in the tissue specimens. The plaintiff continued to follow-up with defendant Aesthetic & Reconstructive Surgery of Central Pennsylvania, P.C., because of problems she was continuing to experience. Over the course of the next year and a half, no additional diagnostic studies were recommended, ordered, or performed, and the plaintiff was assured repeatedly that she did not have breast cancer. In January of 1996, the plaintiff was diagnosed with Stage IIIB breast cancer. In the following three months, the plaintiff underwent chemotherapy and a left total mastectomy. The plaintiff continues to receive chemotherapy daily in an attempt to prevent recurrence. Plaintiffs filed their complaint on April 1, 1998. Thereafter, defendants Thompson and Aesthetic & Reconstructive Surgery of Central Pennsylvania, P.C., filed preliminary objections to the complaint. I. Defendant's Motion for More Specific Pleading Defendant's Thompson and Aesthetic & Reconstructive Surgery of Central PA, P.C., move to have plaintiff plead more specifically the material facts that give rise to the plaintiffs 2 97-6684 CIVIL TERM negligence claim contained in subparagraphs A, B, C, K, and Y of paragraphs 94 and 102 of the complaint~. The purpose of pleadings are to put the defendant on notice as to what he can expect at trial so as to enable the defendant to prepare a defense. The plaintiff's complaint, when taken as a whole, clearly establish the grounds for the plaintiff's negligence cause of action and informs the defendants what to expect to defend against. The standard was stated in Com. by Zimmerman v. Bell Telephone Co. of Pa.: Considering the complaint as a whole, we conclude that the complaint pleads [the cause of action] with the requisite particularity. The complaint alleges specific facts which if proven would constitute [the cause of action]. The facts alleged are sufficient to enable [the defendant] to prepare a defense. Com. by Zimmerman v. Bell Telephone Co. of Pa., 121 Pa. Cmwlth 642, 649, 551 A.2d 602, 605 (1998). Because the plaintiff' s complaint meets this standard, the defendant's motion for more specific pleading is denied. II. Defendant's Motion for More Specific Pleading for Count II, Breach of Informed Consent The defendants move to require more specific pleading of the material facts surrounding the plaintiff's cause of action for breach of informed consent contained in subparagraphs A, B, C, XSubparagraphs A, B, C, K, and Y of paragraphs 94 and 102 state that Defendants Thompson and Aesthetic and Reconstructive Surgery of Central Pennsylvania, P.C. failed to properly examine, monitor, diagnose and treat Plaintiff's breast as well as improperly performing the needle localization procedure and improperly interpreting and responding to the mammographies. 97-6684 CIVIL TERM D, E, F, and G of paragraph 972. For the same reasons stated in the previous section of this opinion, we find this to be unnecessary. As stated above, the standard is that the complaint, taken as a whole, must plead with particularity the nature of the cause of action so as to put the defendant on notice of the allegations giving rise to the cause of action and allow the defendant to prepare a defense. The complaint, when taken as a whole, clearly accomplishes this goal_. III. Defendants' Motion to Strike Plaintiff's Claim for Punitive Damages As stated in an earlier opinion issued by this court in this same matter, punitive damages may be awarded for conduct that is outrageous, because of a defendant's evil motive or reckless indifference to the rights of others. Gordon v. Taggart, No. 97-6684 (C.P. Cumberland) (quoting Feld v. Merriam, 506 Pa. 383,485 A.2d 742 (1984). As the complaint stands, the facts alleged, even when viewed in the light most fav6rable to the plaintiff, do not establish the necessary criteria for punitive damages. But, as noted in Judge Oler's earlier opinion in this case: Where it is apparent that a pleading can be cured by amendment, the ... court may not sustain a [preliminary objection based on legal insufficiency] that would put an end to a controversy without 2Subparagraphs A, B, C, D, E, F, and G of paragraph 97 state that Defendant Thompson failed to realize that proposed procedure would result in an offensive bodily contact, that Defendant Thompson proceeded without fully advising the Plaintiff as to the extent of her condition or the proposed procedure, that Defendant Thompson proceeded without the Plaintiff's informed consent, that Defendant Thompson caused permanent injury to the plaintiff as a result of the non-consensual procedure, and that Defendant Thompson failed to disclose all information material to the decision to undergo the procedure. 4 97-6684 CIVIL TERM giving the pleader an opportunity to file an amended complaint, if there exists a reasonable possibility that a cause of action may be sustained. (Oler opinion (cite)) (quoting Del Turco v. Peoples Home Saving Association, 329 Pa. Super. 258, 273,274, 478 A.2d 456, 464 (1984). Judge Oler went on to grant leave to amend. While we see less clearly than our colleague how punitive damages can ever properly be pled in this case, we will, nonetheless, allow the plaintiff the opportunity to amend her complaint. The defendant's motion to strike the punitive damages claim is sustained, pending that amendment. ORDER AND NOW, this 2~ 4day of July, 1998, upon consideration of the preliminary objections to plaintiff's complaint filed by Defendants Lawrence K. Thompson, M.D., and Aesthetic & Reconstructive Surgery of Central PA, P.C., and for the reasons stated in this accompanying opinion, it is ORDERED and DIRECTED as follows: 1. Defendants' motion for more specific pleading with regard to plaintiff's allegations of negligence contained in subparagraphs A, B, C, K, and Y of paragraphs 94 and 102 is DENIED. 2. Defendants motion for more specific pleading with regard to the breach of informed consent cause of action in Count II contained in subparagraphs A, B, C, D, E, F, and G of paragraph 97 is DENIED. 3. Defendant's preliminary objection to plaintiffs claim for punitive damages is SUSTAINED, with leave granted to plaintiff to file an amended pleading within ten (10) days of the date of this order, consistent with the court's opinion, if they can do so. Defendant is granted twenty (20) days from service of any such amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, thirty (30) days from the date of this 97-6684 CIVIL TERM opinion to file an answer. Robin J. Marzella, Esquire Patrick Lauer, Esquire For the Plaintiffs Evan Black, Esquire April L. Chamberlain, Esquire Francis E. Marshall, Jr., Esquire S. Walter Foulkrod, III, Esquire For the Defendants :rim BY THE COURT, ./4 ess, J. ~ 6