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HomeMy WebLinkAbout98-3422 CivilFRANCIS O. TINDAL, Pro Se and KENNETH JAMES TINDAL, Plaintiffs VS. JONATHAN P. WHITNEY, M.D. and HOLY SPIRIT HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF .CUMBERLAND COUNTY, PENNSYLVANIA 98-3422 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, HOLY SPIRIT HOSPITAl, BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this ~! ~' day of August, 1998, the preliminary objection of defendant, Holy Spirit Hospital, to the plaintiff's complaint, alleging a lack of capacity to sue, is SUSTAINED and the complaint of'the plaintiff as to Holy Spirit Hospital is DISMISSED with prejudice. Francis O. Tindal, Pro Se Plaintiff Craig A. Stone, Esquire For Defendant Holy Spirit Hospital Lauralee B. Baker-Star, Esquire For Defendant Jonathan P. Whitney, M.D. :rim BY THE COURT, Ke/~. Hess, J. FRANCIS O. TINDAL, Pro Se and KENNETH JAMES TINDAL, Plaintiffs VS. JONATHAN P. WHITNEY, M.D. and HOLY SPIRIT HOSPITAL, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-3422 CIVIL CIVIL ACTION - LAW JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, HOLY SPIRIT HOSPITAl, BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER The pro se plaintiff, Francis O. Tindal, has commenced this action for medical malpractice and wrongful death on behalf of his deceased brother, Kenneth James Tindal. Francis Tindal filed a complaint on June 19, 1998, listing himself and his brother, who had died on June 8, 1997, as plaintiffs. The "medical malpractice complaint" generally alleges that the defendants, Jonathan P. Whitney and Holy Spirit Hospital, were negligent in the care and treatment of Kenneth Tindal and that he.died as a result of this negligent treatment. Although the plaintiff has not pled that he is bringing this action under the Wrongful Death Act, the nature of his pleadings infer that this is the case. The plaintiff also claims damages for loss of consortium. The Wrongful Death Act (the "Act") mandates that one who brings a wrongful death action must be in a certain family relationship to the deceased or be the deceased's personal representative to have standing to sue. The applicable provisions are set forth as follows: § 8301. Death Action (a) General rule.--An action may be brought, under the procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same 98-3422 CIVIL damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery. (b) Beneficiaries.--Except as provided by subsection (d), the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere ... (d) Action by personal representative.--If no person is eligible to recover damages under subsection (b), the personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S.A. Section 8301 The requirement that one must have standing to sue under the Act is also set forth in Pa.R.C.P. 2202. The applicable provisions are set forth as follows: Rule 2202. Parties Entitled to Bring Action for Wrongful Death (a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. (b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such 'action as trustee ad litem on behalf of all persons entitled to share in the damages ... Pa.R.C.P. 2202 The right to bring a wrongful death action is given only to certain enumerated parties 98-3422 CIVIL listed in the Wrongful Death Act. "At common law, there existed no right of action to recover damages for the wrongful death of a relative in this Commonwealth; rather, such a right of action has been made possible by statute." Hodge v. Loveland, 456 Pa. Super. 188, 191,690 A.2d 243, 245 (1997) (citing Frazier v. Oil Chemical Co., 407 Pa. 78, 179 A.2d 202 (1962)). The only parties given the right to bring a wrongful death action are "the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime." Frey v. Pennsylvania Electric Company, 414 Pa. Super. 535,539-40, 607 A.2d 796, 798 (1992). It is well settled that the purpose of the Act "is 'to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived.'" Berry v. Titus, 346 Pa. Super. 376, 381,499 A.2d 661,664 (1985) (quoting Manning v. Capelli, 270 Pa. Super. 207, 211, 411 A.2d 252, ~254 (1979)). In the case sub judice, Francis Tindal has brought a wrongful death action against the defendants, alleging that the care and treatment of his deceased brother was negligent. One can only bring a wrongful death action if they are the spouse, child, or parent of the deceased and have suffered pecuniary loss as a result of negligent conduct that caused the person to die, or have been appointed the personal representative of the deceased to recover various expenses of administration necessitated by the person's death. Thus, Francis Tindal does not have standing to bring this action. Francis is the deceased's brother and has not been appointed his personal representative. Also, Francis is not a party enumerated in the statute. The person who would have standing is Jacquelyn I. Tindal, the wife of Kenneth. 3 98-3422 CIVIL Jacquelyn has chosen not to bring a wrongful death action against the defendants, and filed an affidavit on August 6, 1998, which stated in part: 7. No personal representative has been appointed for decedent Kenneth James Tindal ... 9. I do not have, and have never had, any agreement with Francis O. Tindal whereby I approved, endorsed, encouraged or permitted him to bring the instant action. 10. In fact, I have previously refused to authorized the release of my deceased husband's medical records to Francis O. Tindal. 11. I do not approve of the filing of the instant action because, in my opinion, my deceased husband Kenneth James Tindal received the best of care from Dr. Whitney and from Holy Spirit Hospital. Affidavit of Jacquelyn I. Tindal, August 6, 1998. The plaintiff contends in his answer to defendant Holy Spirit Hospital's preliminary objections that he "did have an agreement to enter into an action with Kenneth Tindal's wife, Jacquelyn I. (Artley) Tindal, the executor on record to Kenneth Tindal's estate, for a remedy or relief.''~ The existence of such an agreement is, we believe, irrelevant to our inquiry. In any event, Mrs. Tindal's affidavit belies this contention. The law is also well settled that "[a] dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect." Valentin v. Cartagena, 375 Pa. Super. 493,495,544 A.2d 1028, 102.9 (1988) (citing Thompson v. Peck, 320 Pa. 27, 30, 181 t"Preliminary Objections of Pro Se Plaintiff, Francis O. Tindal, to Defendants Holy Spirit Hospital's Preliminary Objections" at 4. 98-3422 CIVIL A. 597, 598 (1935)). Mr. Tindal has attempted to make his brother a party to this action, but his brother had died more than a year before this action was filed. The plaintiff also claims that he is entitled to damages for loss of consortium as a result of his brother's death. However, the right to sue for loss of consortium is limited and arises "out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together." Bums v. Pepsi-Cola Metro. Bottling Co., 353 Pa. Super. 571,575,510 A.2d 810, 812 (1986). Loss of consortium damages are not available to siblings of deceased persons. ORDER AND NOW, this 3'! v, day of August, 1998, the preliminary objection of defendant, Holy Spirit Hospital, to the plaintiWs complaint, alleging a lack of capacity to sue, is SUSTAINED and the complaint of the plaintiff as to Holy Spirit Hospital is DISMISSED with prejudice. Francis O. Tindal, Pro Se Plaintiff Craig A. Stone, Esquire For Defendant Holy Spirit Hospital Lauralee B. Baker-Star, Esquire For Defendant Jonathan P. Whitney, M.D. BY THE COURT, [~~ SS, J.