HomeMy WebLinkAbout97-6684 CivilPATRICIA S. GORDON and
ROBERT GORDON, her husband,
Plaintiffs
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JAMES D. TAGGART, M.D.; :
CARLISLE IMAGING ASSOCIATES, :
P.C.; 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
CIVIL ACTION - LAW
NO. 97-6684 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
.. BEFORE HESS ann'.OLER, JJ.*
ORDER OF COURT
AND NOW, this Z~ay of July, 1998, upon consideration of the
preliminary objections to Plaintiffs' complaint filed by Defendants
James D. Taggart, M.D., and Carlisle Imaging Associates, P.C., and
of the preliminary objections to Plaintiffs' complaint filed by
Defendant Carlisle Hospital, and for the reasons stated in the
accompanying opinion, it is ORDERED and DIRECTED as follows:
1. With respect to the preliminary objections filed by
Defendants James D. Taggart, M.D., and Carlisle Imaging Associates,
P.C.:
a. Defendants' preliminary objection to
Plaintiffs' claim for damages for increased
risk of future harm is SUSTAINED.
b. Defendants' preliminary objection to
Plaintiffs' claim for damages for fear of
future harm is DEEMED MOOT, because Plaintiffs
have agreed to file a stipulation withdrawing
their claim for such fear.
c. Defendant Taggart's preliminary
objection to Plaintiffs' claim for punitive
damages is SUSTAINED, with leave granted to
Plaintiffs to file an amended pleading within
10 days of the date of this order, consistent
with the court's opinio~,., if they can do so.
Defendant is granted 20 days from service of
any such amended complaint to file an answer
or preliminary objections, and, in the absence
of an amended complaint, 30 days from the date
of this order to file an answer.
d. Defendant Carlisle Imaging
Associates' preliminary objection to
Plaintiffs' claim for punitive damages is
DEEMED MOOT, because Plaintiffs have agreed to
file a stipulation withdrawing their claim for
punitive damages against this Defendant.
2. With respect to the preliminary objections filed by
Defendant Carlisle Hospital:
a. Defendant's preliminary objection to
Plaintiffs' claim for damages for increased
risk of future harm is SUSTAINED.
b. Defendant's preliminary objection to
Plaintiffs' claim for damages for fear of
future harm is DEEMED MOOT, because Plaintiffs
have agreed to file a stipulation withdrawing
their claim for such fear.
c. Defendant's preliminary objection to
Plaintiffs' claim for punitive damages is
DEEMED MOOT, because Plaintiffs have agreed to
file a stipulation withdrawing their claim for
punitive damages against this Defendant.
Patrick F. Lauer, Jr., Esq.
2108 Market Street
Aztec Building
Camp Hill, PA 17011
Attorney for Plaintiffs
Robin J. Marzella, Esq.
3513 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Walter S. Foulkrod, Esq.
Suite 35
2215 Forest Hills Drive
P.O. Box 6600
Harrisburg, PA 17112-0600
Attorney for Defendants
BY THE COURT,
James D. Taggart, M.D., and
Carlisle Imaging Associates, P.C.
Francis E. Marshall, Jr., Esq.
20 South 36th Street
Camp Hill, PA 17011
Attorney for Defendant
Carlisle Hospital
April Chamberlain, Esq.
811 University Drive
State College, PA 16801-6699
Attorney for Defendants
Lawrence K. Thompson, M.D., and
Aesthetic & Reconstructive
Surgery of Central PA, P.C.
Evan Black, Esq.
240 Grandview Avenue
Camp Hill, PA 17011
Attorney for Defendant
Henry S. Crist, M.D.
:rc
* Guido,· J., did not participate in the consideration or
disposition of this case.
PATRICIA S. GORDON and :
ROBERT GORDON, her husband, :
P~aintiffs :
Vo
JAMES D. TAGGART, M.D.;
CARLISLE IMAGING ASSOCIATES,
P.C.; 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
CIVIL ACTION - LAW
NO. 97-6684 CIVIL TERM
I · N T ' PR M ET
BEFORE HESS and OLER, jj,
QPINION and ORDER' OF COURT
Oler, Jr., July 2, 1998.
In this medical malpractice case, the Plaintiffs, Patricia S.
Gordon and her husband, Robert Gordon, allege that the named
Defendants failed to timely diagnose and properly treat Ms.
Gordon's breast cancer. Presently before the court are a set of
preliminary objections filed by Defendants James D. Taggart, M.D.,
and Carlisle Imaging Associates, P.C., and a set of preliminary
objections filed by Defendant Carlisle Hospital.~
~ Preliminary objections filed by Defendants Lawrence K.
Thompson, M.D., and Aesthetic & Reconstructive Surgery of Central
PA, P.C., were at one point listed for argument but were not argued
pursuant to an understanding of counsel and are not presently
before the court. Preliminary objections filed by Defendant Henry
S. Crist, M.D., were not listed for argument and are also not
presently before the court.
NO. 97-6684 CIVIL TERM
For the reasons stated in this opinion, the preliminary
objections of Defendants Taggart and Carlisle Imaging Associates,
P.C., in the form of a motion to strike paragraphs 78, 81, 89 and
90 of Plaintiffs, complaint regarding a claim for damages for
increased risk of future harm will be sustained. The preliminary
objection of Defendants Taggart and Carlisle Imaging Associates,
P.C., in the form of a motion to strike paragraph 82 of Plaintiffs,
complaint concerning Plaintiffs, claim for damages for fear of
future harm will be deemed moot, because the Plaintiffs have agreed
to file a stipulation striking paragraph 82 and withdrawing their
claim for damages for fear of such harm.2 The preliminary
objection of Defendant Taggart in the form of a motion to strike
Plaintiffs, claim for punitive damages against him. will be
sustained, with leave granted to Plaintiffs to amend their
complaint if they can do so. The preliminary objection of
Defendant Carlisle Imaging Associates, P.C., in the form of a
motion to strike Plaintiffs, claim for punitive damages will be
deemed moot, because Plaintiffs have agreed to file a stipulation
withdrawing their claim for punitive damages against Defendant
2 Plaintiffs indicated at oral argument that they would be
filing a stipulation withdrawing their claim for damages for fear
of future harm, their claim for punitive damages against Defendant
Carlisle Imaging Associates, P.C., and their claim for punitive
damages against Defendant Carlisle Hospital.
NO. 97-6684 CIVIL TERM
Carlisle Imaging Associates, P.C. The preliminary objection of
Defendant Carlisle Hospital in the form of a motion to strike
paragraphs 78, 81, 89 and 90 of Plaintiffs, complaint regarding
Plaintiffs, claim for damages for increased risk of future harm
will be sustained. The preliminary objection of Defendant Carlisle
Hospital in the form of a motion to strike paragraph 82 of
Plaintiffs, complaint concerning Plaintiffs, claim for damages for
fear of future harm will be deemed moot, because Plaintiffs have
agreed to file a stipulation striking.paragraph 82 and withdrawing
their claim for damages for fear of such harm. Finally, the
preliminary objection of Defendant Carlisle Hospital in the form of
a motion to strike Plaintiffs, claim for punitive damages will be
deemed moot, because Plaintiffs have agreed to file a stipulation
withdrawing their claim for punitive damages against Defendant
Carlisle Hospital.
STATEMENT OF FACT~
The following facts are alleged in Plaintiffs, complaint.3
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
3 The recitation of facts alleged in Plaintiffs, complaint is
not intended to indicate any view of the court as to their
accuracy.
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NO. 97-6684 CIVIL TERM
mammograms-4 These mammograms produced suspicious findings that
prompted Ms. Gordon's referral to Defendant Thompson, a surgeon
with Defendant Aesthetic & Reconstructive Surgery of Central
Pennsylvania, p.c.5 At the time, she was complaining of
architectural changes and pain in her left breast.6 As a result of
her complaints and the radiographic and physical examination
findings, a breast biopsy was performed on or about September 9,
1994, at Defendant Carlisle Hospital by Defendants Thompson,
Taggart, and/or agents, apparent agents, servants, and/or employees
of Defendant Carlisle Hospital and Defendant Carlisle Imaging
Associates, ?.C.7 The named Defendants failed to properly identify
and localize the abnormality. 8
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 agent, apparent agents,
servants, and/or employees of Defendant Carlisle Hospital.9
Complaint, paragraphs 14-17.
Complaint, paragraphs 20-21.
Complaint, paragraphs 21, 22.
Complaint, paragraphs 28, 29.
Complaint, paragraphs 20, 30.
Complaint, paragraph 31.
NO. 97-6684 CIVIL TERM
Defendant Crist failed to properly examine the tissue specimens and~
reported that there was no evidence of malignancy in the tissue
specimens.~0
After this was conveyed to Ms. Gordon, she continued to follow
up with Defendant Aesthetic & Reconstructive Surgery of Central PA,
P.C., because of problems which she was continuing to experience
with her left breast and which she complained of in her follow-up
sessions. Over the course of the next year and a half, no
additional diagnostic studies were recommended, ordered, or
performed, and she was assured repeatedly that she did not have
breast cancer.n
In January of 1996, Ms. Gordon's biopsy revealed infiltrating
lobular carcinoma.~2
In the following three months, Ms. Gordon
underwent chemotherapy and a left total mastectomy.~3 Ms. Gordon
continues to receive chemotherapy daily in an attempt to prevent
recurrence.TM
Complaint, paragraphs 31-33.
Complaint, paragraphs 37, 38.
Complaint, paragraph 71.
Complaint, paragraphs 72, 73.
Complaint, paragraph 77.
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NO. 97-6684 CIVIL TERM
Plaintiffs filed their complaint on April 1, 1998.
Thereafter, Defendants Taggart and Carlisle Imaging Associates,
P.C., Defendant Carlisle Hospital, Defendants Thompson and
Aesthetic & Reconstructive Surgery of Central PA, P.C., and
Defendant Crist filed preliminary objections to the complaint.
future harm. Defendants Taggart and"Carlisle Imaging Associates,
P.C., have filed a preliminary objection in the form of a motion to
strike Plaintiffs, claim for increased risk of future harm on the
ground that there is no legal basis for such a claim. Defendants
Taggart and Carlisle Imaging Associates, P.C., contend that
Plaintiffs, claim for an increased risk of the recurrence of cancer
in the future cannot be successfully asserted as an item of damages
in the medical malpractice action sub judice. Defendants rely on
Klein v. Weisberg, ~ Pa. Super. , 694 A.2d 644 (1997), in
support of this position.
In Klein, the Pennsylvania Superior Court extended the "two-
disease rule," previously applicable to asbestos cases, to a
medical malpractice action where a plaintiff with a liver condition
sought to recover damages for an increased risk of liver cancer.
NO. 97-6684 CIVIL TERM
Id. at ~ 694 A.2d at 644 The "t
' - wo-alsease rule" traditionally
has precluded a plaintiff with one asbestos-related injury from
asserting a claim for an increased risk of cancer at a time when
the disease has not yet developed. Id. at ~, 694 A.2d at 645-46.
The Defendants contend that the "two-disease rule" precludes the
Plaintiffs in this case from asserting a claim for an increased
risk of the recurrence of cancer in Ms. Gordon.
The Court agrees with this contention. It would appear that
the same rationale and policy considerations that prompted the
Supreme Court in Klein to extend the two-disease rule to a medical
malpractice action where a plaintiff with a liver condition sought
to recover damages for an increased risk of liver cancer, are
applicable in the present case. Accordingly, Defendants,
preliminary objection in the form of a motion to strike Plaintiffs,
claim for damages for increased risk of future harm will be
sustained.
Defendants, preliminary objection to Plaintiffs, claim for damages
for fear of future harm will be deemed moot, because the Plaintiffs
have agreed to file a stipulation withdrawing their claim for
damages for fear of such harm.
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NO. 97-6684 CIVIL TERM
itiv dam e ' D n · 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. Feld
v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984).
In Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088
(1985), the Pennsylvania Supreme Court stated that in order to
establish "reckless indifference to the rights of others,', so as to
justify punitive-damages, it must be shown that "the actor knows,
or has reason to know, ... of facts which create a high degree of
risk of physical harm to another, and deliberately proceeds to act,
or to fail to act, in conscious disregard of, or indifference to,
that risk." Id. at 171, 494 A.2d at 1097. Under Pennsylvania law,
only a showing of the above mental state or evil motive is
sufficient to create a jury question on the issue of punitive
damages. SHV Coal, Inc. v. Continental Grain Co., 529 Pa. 489,
495, 587 A.2d 702, 704-05 (1991).
In this case the Plaintiffs have failed to suggest in their
complaint that Defendant Taggart acted with an evil motive or
e~lDerately proceed[ed] to act, or to fail to act, in conscious
disregard of, or indifference to, Iai risk." Consequently,
Defendant Taggart's preliminary objection in the form of a motion
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NO. 97-6684 CIVIL TERM
to strike Plaintiffs' claim for punitive damages against him will
be sustained.
In the event that a preliminary objection in the form of a
motion to strike on grounds of legal insufficiency of the pleading
is sustained, the question arises as to whether the court should
permit the filing of an amended pleading by the adverse party or
whether it should enter judgment on the issue in favor of the party
moving to strike. 2 Anderson, Pennsylvania Civil Practice
~1017.175 at 570 (1975). "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 giving the pleader an opportunity to file an
amended complaint, if there exists a reasonable possibility that a
cause of action may be sustained." Del Turco v. Peoples Home
Savings Association, 329 Pa. Super. 258, 273-274, 478 A.2d 456, 464
(1984). Since there exists a possibility that Plaintiffs,
defective claim for punitive damages against Defendant Taggart can
be cured by amendment of the complaint, the court will grant leave
to Plaintiffs to file an amended pleading within 10 days of the
date of this order, if they are able to do so.
Defendant Carlisle Imaging Associates' motion to strike
Plaintiffs, claim for punitive damage:~. Defendant Carlisle Imaging
NO. 97-6684 CIVIL TERM
Associates' preliminary objection in the form of a motion to strike
Plaintiffs' claim for punitive damages against it will be deemed
moot, inasmuch as Plaintiffs have agreed to. file a stipulation
withdrawing their claim for punitive damages against this
Defendant.
Preliminary Objections on Behalf of Defendant Carlisle Hospital
Motion to strike Plaintiffs' claim for increased risk of
~/%Igr~_h~. For the reasons stated in this opinion with respect
to the preliminary objections of D~fendants' Taggart and Carlisle
Imaging Associates, P.C., in the form of a motion to strike
Plaintiffs' claim for increased risk of future harm, Defendant
Carlisle Hospital's preliminary objection to Plaintiffs' claim for
increased risk of future harm will be sustained.
Motion to strike Plaintiffs' claim for damages for fear OI
future harm. Defendant Carlisle Hospital's preliminary objection
in the form of a motion to strike Plaintiffs' claim for damages for-
fear of future harm will be deemed moot, because Plaintiffs have
agreed to file a stipulation withdrawing their claim for damages
for fear of such harm.
Motion to strike Plaintiffs' claim for punitive damages
against Defendant Carlisle Hospital. Defendant Carlisle Hospital's
preliminary objection in the form of a motion to strike Plaintiffs'
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NO. 97-6684 CIVIL TERM
claim for punitive damages against Defendant Carlisle Hospital will
also be deemed moot, because Plaintiffs have agreed to file a
stipulation withdrawing their claim for punit, ive damages against
this Defendant.
ORDER QF COURT
AND NOW, this 2nd day of July, 1998, upon consideration of the
preliminary objections to Plaintiffs' complaint filed by Defendants
James D. Taggart, M.D., and Carlisle Imaging Associates, P.C., and
of the preliminary objections to 'Plaintiffs' complaint filed by
Defendant Carlisle Hospital, and for the reasons stated in the
accompanying opinion, it is ORDERED and DIRECTED as follows:
1. With respect to the preliminary objections filed by
Defendants James D. Taggart, M.D., and Carlisle Imaging.Associates,
P.C.:
a. Defendants' preliminary objection to
Plaintiffs' claim for damages for increased
risk of future harm is SUSTAINED.
b. Defendants' preliminary objection to
Plaintiffs' claim for damages for fear of
future harm is DEEMED MOOT, because Plaintiffs
have agreed to file a stipulation withdrawing
their claim for such fear.
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NO. 97-6684 CIVIL TERM
c. Defendant Taggart,s preliminary
objection to Plaintiffs' claim for punitive
damages is SUSTAINED, with leave qranted to
Plaintiffs to file an amended pleading within
10 days of the date of this order, consistent
with the court's opinion, if they can do so.
Defendant is granted 20 days from service of
any such amended complaint to file an answer
or preliminary objection~,.~ and, in the absence
of an amended complaint, 30 days from the date
of this order to file an answer.
Associates'
Plaintiffs'
Defendant Carlisle Imaging
preliminary objection to
claim for punitive damages is
DEEMED MOOT, because Plaintiffs have agreed to
file a stipulation withdrawing their claim for
punitive damages against this Defendant.
2. With respect to the preliminary objections filed by
Defendant Carlisle Hospital:
a. Defendant's preliminary objection to
Plaintiffs' claim for damages for increased
risk of future harm is SUSTAINED.
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NO. 97-6684 CIVIL TERM
b. Defendant's preliminary objection to
Plaintiffs' claim for damages for fear of
future harm is DEEMED MOOT, because Plaintiffs
have agreed to file a stipulation withdrawing
their claim for such fear.
c. Defendant's preliminary objection to
Plaintiffs' claim for punitive damages is
DEEMED MOOT, because Plaintiffs have agreed to
file a stipulation withdrawing their claim for
punitive damages against this Defendant.
BY THE COURT,
Patrick F. Lauer, Jr., Esq.
2108 Market Street
Aztec Building
Camp Hill, PA 17011
Attorney for Plaintiffs
Robin J. Marzella, Esq.
3513 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Walter S. Foulkrod, Esq.
Suite 35
2215 Forest Hills Drive
P.O. Box 6600
Harrisburg, PA 17112-0600
Attorney for Defendants
s/ J. Wesley Oler, Jr..
J. Wesley Oler, Jr., J.
13
NO. 97-6684 CIVIL TERM
James D. Taggart, M.D., and
Carlisle Imaging Associates, P.C.
Francis E. Marshall, Jr., Esq.
20 South 36th Street
Camp Hill, PA 17011
Attorney for Defendant
Carlisle Hospital
April Chamberlain, Esq.
811 University Drive
State College, PA 16801-6699
Attorney for Defendants
Lawrence K. Thompson, M.D., and
Aesthetic & Reconstructive
Surgery of Central PA, P.C.
Evan Black, Esq.
240 Grandview Avenue
Camp Hill, PA 17011
Attorney for Defendant
Henry S. Crist, M.D.
:rc
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