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HomeMy WebLinkAbout2001-2581 CivilBRANDY MILLS ROBERT BEAUDRY, JR. D.M.D.; BEAUDRY ORAL SURGERY; and ROBERT J. BEAUDRY, JR., P.C. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-2581 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HESS, GUIDO, JJ. OPINION AND ORDER OF COURT This professional negligence action was commenced by writ of summons on May 1,2001. On November 3, 2003, plaintiff filed a five count complaint. Defendants responded by filing the preliminary objections which are currently before us. Those objections include 1) a request that paragraph 15 (h) of Count I be stricken for lack of specificity and 2) a demurrer to the claims contained in Counts II and III. We will address each objection in the opinion that follows. Lack of Specificity. Dr. Beaudry's alleged negligence is set forth in paragraph 15 of the complaint. It provides as follows: 15. At the times and places aforesaid and at all times material hereto, Defendant Robert Beaudry, Jr. failed to have and exercise that degree of knowledge, skill and care as that exercised by the average practitioner in his profession under the same or similar circumstances and was negligent in that he: NO. 2001-2581 CIVIL Plaintiff goes on to detail the doctor's alleged negligence in the subparagraphs that follow. Subparagraph (a) through (g) contain very specific instances of the doctor's errors and omissions. Subparagraph (h) goes on to provide: h. failed to have and exercised that degree of knowledge, skill and care as that possessed and exercised by the average practitioner in his profession under the same or similar circumstances; Defendants contend that this last subparagraph contains exactly the type of "catch-all" allegation which should be dismissed under Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1982). We agree. Demurrer. The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader' s right to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. County ofA//egheny v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402 408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). NO. 2001-2581 CIVIL Counts II and III are premised upon the alleged "corporate negligence" of Defendants Beaudry Oral Surgery and Beaudry Oral Surgery, P.C. Count II makes the following relevant allegations against Defendant Beaudry Oral Surgery: 24. 25. At the times and places aforesaid, and at all times material hereto, defendant Beaudry Oral Surgery, by and through its agents, servants and employees including, but not limited to defendant Robert J. Beaudry, Jr. undertook the diagnosis, treatment and care of plaintiff Brandy Mills. At the times and places aforesaid and at all times material hereto, defendant Beaudry Oral Surgery was negligent in the diagnosis and/or treatment and/or care of plaintiff Brandy Mills by: a. failing to properly review and supervise the care and treatment rendered by surgeons, nurses, technicians and other staff members, including but not limited to defendant Robert J. Beaudry, Jr.; b. failing to assure that all surgeons, nurses, technicians and other staff members including, but not limited to, defendant Robert J. Beaudry, Jr. have and exercise that degree of knowledge, skill and care as that possessed and exercised by the average professional practicing in that field under the same or similar circumstances; c. failing to maintain and enforce proper and medically reasonable policies and/or procedures and/or protocols for performing oral surgeries including, but not limited to, those pertaining to the removal of wisdom teeth as well as follow-up treatments; Count III makes the identical allegations against Beaudry Oral Surgery, P.C. In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) the Supreme Court of Pennsylvania adopted the doctrine of corporate negligence. In overruling the grant of summary judgment in favor of the defendant hospital the court held: Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party. NO. 2001-2581 CIVIL The Court fully embraced the following four categories of duties owed by a hospital to its patients: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. (citations omitted) 591 A.2d 703 at 707.~ We can see no reason why those same duties would not be owed to a patient of a professional corporation or partnership.2 ~ The Superior Court extended the theory of corporate negligence to HMO's in Shannon v. gdc'Nulty, 718 A.2d 828 (Pa. Super. 1998). 2 Defendant correctly points out that there are no Pennsylvania appellate decisions which have extended Thompson's theory of direct corporate liability to professional medical corporations. We note, however, that the converse is also true, i.e. there are no appellate decisions which have refused to extend the theory to professional medical corporations. There are a number of trial court decisions which have addressed the issue with varying results. See for example, Milan v. American Vision Center, 34 F. Supp. 2d 279 (E.D. Pa. (1998), (corporate negligence doctrine does not apply to an optometrist's office); Dowhouer v. dudson, 119 Dauphin. 366 (2000), (corporate negligence doctrine does not apply to physician practices); Dibble v. Penn State Geisinger Clinic, 98 CV 2281 (Lackawanna County 1999), (theory of direct corporate negligence does not apply to professional corporations which are not comprehensive medical care facilities). On the other hand, there are several cases which have allowed such causes of action. See Fox v. Horn, Pics 1480- 03-00 (E.D. Pa. 2000), (theory of direct corporate negligence applies to medical group where the plaintiff was constrained in his choice of medical options); Rivera v. Lawrence, No. 4325 Civil 1998, (Monroe County 1998), (corporate negligence applicable to a professional medical corporation); and Risser v. Pepper, 116 Dauphin. 109 (1996), (theory of corporate liability applicable to dental partnership). NO. 2001-2581 CIVIL ORDER OF COURT AND NOW, this 30TM day of JUNE, 2004, for the reasons set forth in the attached opinion it is hereby ordered and decreed as follows: (1.) Defendants' Preliminary Objections to paragraph 15(h) of the complaint is SUSTAINED and said paragraph 15(h) is STRICKEN. (2.) The remainder of Defendants' Preliminary Objections are DISMISSED. By the Court, Kevin Haverty, Esquire For the Plaintiff Thomas A. McCormack, Esquire For the Defendants :sld /s/Edward E. Guido Edward E. Guido, J.