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HomeMy WebLinkAbout2003-5043 CivilRODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs VS. JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043 CIVIL IN RE: DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS BEFORE HESS AND GUIDO, J.J. OPINION AND ORDER Plaintiffs, Rodney K. and J.P. Rountree, are co-Administrators of the Estate of decedent, Phyllis O'Hare. The plaintiffs instituted this action by filing a praecipe for a writ of summons in the Court of Common Pleas of Dauphin County, Pennsylvania, on or about September 17, 2002. Thereafter, the defendants filed preliminary objections to venue. Ultimately, the parties stipulated that venue in this matter would be transferred to Cumberland County. Eventually a complaint was filed. In their answers, the defendants raised the statute of limitations. Before the court, now, are the motions of the defendants for judgment on the pleadings. Plaintiffs' decedent died on September 19, 1998. Her alleged cause of death was the result of elevated cisapride blood levels which caused cardiological complications. The cardiological complications which were the cause of Ms. O'Hare's death were allegedly brought about by her ingestion of incompatible drugs, Propulsid and Biaxin. Plaintiffs allege that defendant, Jon A. Dubin, D.O., an emergency room physician and employee of Holy Spirit Health System, was at fault for prescribing the antibiotic, "Biaxin", on September 11, 1998. In 03-5043 CIVIL their complaint, plaintiffs allege that the decedent was taking Propulsid at the time when Dr. Dubin prescribed the contraindicated drug, Biaxin. Plaintiffs also allege that decedent's prescription for Propulsid as well as the prescription for Biaxin were filled at a pharmacy owned and operated by defendant, Rite Aid of Pennsylvania, Inc. The defendant, Holy Sprit Hospital, is faulted on vicarious and corporate liability theories with respect to Dr. Dubin's alleged negligence in the emergency room treatment of the decedent. The plaintiffs have brought their claims under our wrongful death and survival statutes. According to the Judicial Code, a cause of action brought under the wrongful death statute must be brought within two years of the death of the individual involved. The praecipe for a writ of summons was filed in this case two years after the statute of limitations had run. The plaintiff contends, however, that the statute of limitations was tolled by virtue of the discovery rule because, for some period of time, the cause of Ms. O'Hare's death was not known nor was it reasonably ascertainable even by the exercise of due diligence. The case law, in Pennsylvania, is clear that the discovery rule does not toll the statute of limitations for matters brought pursuant to the wrongful death or survival statutes. In Anthony v. Koppers Co., Inc., 436 A.2d 181 (Pa. 1981), survival and wrongful death actions were brought by the estate of certain employees against the employer and builders of coke ovens claiming that emissions from the ovens caused the employees to contract lung cancer that ultimately resulted in their deaths. The then applicable statute of limitations for wrongful death actions stated "the action shall be brought within one year after the death, and not thereafter." The Supreme Court held that the clear wording of the statute militated against the application of the discovery rule. 2 03-5043 CIVIL In Pastierik v. Duquense Light Co., 526 A.2d 323 (Pa. 1987), the Supreme Court dealt with the present statute of limitations. This statute provides, "The following actions and proceedings must be commenced within two years ... (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another." 42 Pa.C.S.A. 5524(2). Notwithstanding the considerable difference between this language and the statute dealt with in Anthony, the Supreme Court again concluded that there was no application of the discovery rule for wrongful death cases. With respect to the survival action, the Supreme Court concluded that the date on which the victim could ascertain the existence of a cause of action could not be later than the date of death. Thus, both the wrongful death and survival actions were barred. In his dissent, Justice Larson observes that the decision in Anthony was no more than a plurality. He emphasizes the change in the language of the statute of limitations provision. He goes on to make the case that there is no logical basis for barring the application of the discovery rule in wrongful death cases. Justice Larson's dissent was joined, however, by only one other justice of the Supreme Court. Were the issue before us one of first impression, it is possible that we would give the arguments of the plaintiffs favorable consideration. Since the Supreme Court has spoken to the issue, however, we are bound by its pronouncements.~ ~ The plaintiffs also advance certain constitutional arguments in support of the application of the discovery nde to wrongful death actions. These arguments do not, however, address themselves to the constitutionality of legislation but rather to the constitutionality of the Supreme Court's interpretation of that legislation. It would surprise us greatly to learn that we had the authority to declare unconstitutional a holding of the Pennsylvania Supreme Court. 3 03-5043 CIVIL ORDER AND NOW, this 20th day of April, 2004, the motion of the defendants for judgment on the pleadings is GRANTED. BY THE COURT, Kevin A. Hess, J. Luther Milspaw, Esquire For the Plaintiffs Thomas R. Miller, Esquire Timothy McMahon, Esquire For the Defendants :rlm 4 RODNEY K. and J.P. ROUNTREE, co-Administrators of the Estate of Phyllis O'Hare, deceased, Plaintiffs VS. JON A. DUB1N, D.O., HOLY SPIRIT HEALTH SYSTEM t/a HOLY SPIRIT HOSPITAL and RITE AID OF PENNSYLVANIA, INC., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-5043 CIVIL IN RE: DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS AND NOW, this judgment on the pleadings is GRANTED. BEFORE HESS AND GUIDO, J.J. ORDER 20th day of April, 2004, the motion of the defendants for BY THE COURT, Luther Milspaw, Esquire For the Plaintiffs Thomas R. Miller, Esquire Timothy McMahon, Esquire For the Defendants Kevin A. Hess, J. :rlm