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HomeMy WebLinkAbout99-1257 civilJULIANNE M. HAMAKER and DONALD G. HAMAKER, SR., PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo LINDA F. JOHNSON and MILTON S. HERSHEY MEDICAL CENTER n/b/m PENN STATE GEISINGER, DEFENDANTS 99-1257 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT MILTON S. HERSHEY MEDICAL CENTER n/blm PENN STATE GEISlNGER TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND OLER, J. OPINION AND ORDER OF COURT Bayley, J., November '12, '1999:-- Plaintiffs, Julianne M. Hamaker and her husband Donald G. Hamaker, Sr., filed a complaint against defendants, Linda F. Johnson and Milton S. Hershey Medical Center n/b/m Penn State Geisinger. In counts I and II against defendant, Linda F. Johnson, plaintiff Julianne M. Hamaker claims damages for personal injury, and Donald G. Hamaker, Sr., for loss of consortium arising out of injuries his wife alleges she incurred in an automobile accident on March 7, 1997, in which Johnson was the driver of a vehicle that collided with her vehicle. Plaintiff alleges that her ankle was fractured in that accident for which she was operated on March 7th at the Hershey Medical Center. Against defendant, Hershey Medical Center, the allegations in the complaint are as 99-1257 CIVIL TERM follows: 17. On the morning of March 11, 1997, agents of Defendant Milton S. Hershey Medical Center contacted Plaintiff Donald G. Hamaker, Sr. and informed him that he needed to come to the center right away and pick up his wife, as she was being discharged. 18. Plaintiffs were informed by hospital personnel that she was being discharged because there was no bed space for her. 19. When Plaintiff Donald G. Hamaker, Sr. arrived, he attempted to discuss the situation with a doctor, but was told that no doctor was available. 20. At the time of her discharge, Plaintiff Julianne M. Hamaker was still receiving morphine intravenously and was only intermittently conscious; she was not ambulatory and she has no recollection of her stay at the hospital or her discharge. 21. At the time of discharge, a nurse employed by Defendant Milton S. Hershey Medical Center demonstrated to Mr. Hamaker, who has no medical training, how to change the dressing through a window in the cast. When he protested that he was not competent to conduct dressing changes, he was reassured that a visiting nurse and a hospital bed would be provided. 22. Plaintiff Donald G. Hamaker, Sr. transported his wife to their home in his private car. 23. When Plaintiff Donald G. Hamaker, Sr. attempted to transfer Plaintiff Julianne M. Hamaker from the family car when he reached their home, he strained his shoulder, neck and back, causing personal injuries for which damages are claimed. 24. As soon as Plaintiff Donald G. Hamaker, Sr. arrived at his home he made efforts to contact Defendant Milton S. Hershey Medical Center regarding the promised visiting nurse as well as hospital supplies. 25. When the promised bed failed to arrive, Plaintiff Donald G. Hamaker, Sr. was forced to sleep with his back against the sofa on which Julianne M. Hamaker was lying to keep her from falling off of the sofa. Despite this, Ms. Hamaker did sustain a fall in attempting to crawl to the bathroom. 26. A visiting nurse never arrived until approximately 6:00 p.m. March 12, 1997. Upon inspecting Plaintiff Julianne M. Hamaker, she recognized that Ms. Hamaker needed to be in a hospital and said that the Visiting Nurses nurse service could not be responsible for her care given her serious medical condition. After approximately three hours, Plaintiffs were able to secure the admission of Plaintiff Julianne M. Hamaker to -2- 99-1257 CIVIL TERM Carlisle Hospital on March 12, 1997, where she remained until March 15, 1997. 27. It was reasonably foreseeable that Plaintiff Donald G, Hamaker, St. was within the zone of danger created by the premature discharge of his wife, Plaintiff Julianne M. Hamaker. (Emphasis added.) In the complaint against Hershey Medical Center, plaintiff, Donald G. Hamaker, Sr., makes the following claims: Count III negligence for the injuries he alleges he suffered when he was transferring his wife from the car to their house after she was released from the hospital; Count IV intentional infliction of emotional distress for prematurely discharging his wife from the hospital; Count V punitive damages, and Count VI negligent infliction of emotional distress for prematurely discharging his wife from the hospital. Julianne M. Hamaker's complaint against the Hershey Medical Center is as follows: Count VII negligence; Count VIII intentional infliction of emotional distress; Count IX punitive damages; Count X negligent infliction of emotional distress, and Count Xl loss of consortium due to her husband's injuries from his alleged fall. Hershey Medical Center filed preliminary objections to all claims against it in plaintiffs' complaint. Plaintiffs have withdrawn the claims in Counts VI and X. The issues were briefed and argued on October 13, 1999. In Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), the issue before the Supreme Court of Pennsylvania was whether a physician may be held liable for injuries suffered by a third party in an automobile accident caused by the physician's patient. The plaintiff alleged that the defendant ophthalmologist had failed to inform his patient -3- 99-1257 CIVIL TERM and the Pennsylvania Department of Transportation of the patient's poor visual acuity, and subsequently, the patient, because of that poor visual acuity, injured plaintiff while driving an automobile. The Supreme Court affirmed an order of the Superior Court of Pennsylvania that had affirmed an order of the trial court granting a demurrer to plaintiffs complaint. The Supreme Court stated: Appellant... makes a general assertion that Dr. Kiskaddon owed a duty to Appellant's decedent as a foreseeable victim of the physician's omissions. That is, Dr. Kiskaddon breached a duty to Ms. Witthoeft by failing to inform Ms. Myers of her poor visual condition, and this failure to notify constituted a direct and proximate cause of Ms. Witthoeft's death. In support of his argument, Appellant cites to this court's decision in DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990). In DiMarco, this court held that a physician may be liable to a non- patient third person who is injured because of the physician's negligent treatment of a patient. In that case, a physician misinformed his patient, a blood technician who had been accidentally exposed to the communicable disease hepatitis B, that if she remained symptom free for six weeks she was not infected with the disease. The physician told the patient to refrain from sexual relations for six weeks. In fact, the patient abstained from sexual relations with her boyfriend for eight weeks. Still being symptom free, the patient resumed sexual relations with her partner. Subsequently, both the patient and her boyfriend were diagnosed with hepatitis B. The patient's boyfriend brought suit against certain physicians, alleging their negligence in failing to warn the patient that having sexual relations within six months could expose her sexual partner to the disease. This court found that the physician's duty encompassed third parties whose health could be threatened by contact with the diseased patient, i.e., the duty of the physician in such circumstances extended to those within the foreseeable orbit of risk of harm. Thus, foreseeability was the essence of the determination of duty. Appellant contends that like the plaintiff in DiMarco, Witthoeft fell within the foreseeable risk of harm when Dr. Kiskaddon failed to inform Ms. Myers of her poor eyesight. We believe that DiMarco is distinguishable for a number of reasons. Initially, the focus of the court in DiMarco was on the unique 99-1257 CIVIL TERM medical condition at issue. Specifically, the court placed great emphasis on the fact that the injury involved was a communicable disease. Thus, the threat of the spread of communicable disease was paramount in the court's mind. See Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71,675 A.2d 314 (1996), alloc, denied, 546 Pa. 668, 685 A.2d 547 (1996). In the context of a communicable disease, the physician's duty to provide accurate information is critical because information regarding the risks of contacting the disease or the dangers of transmitting the disease are often times not known to the general public. Thus, in this context, the education and advice provided by the physician about the communicable disease are of great import and the finding of a duty may have been reasonable. However, in the case sub judice, we are faced with poor vision, certainly not a communicable disorder or a disorder of imminent threat to health. Finally, it is a condition of which the patient is well aware. Thus, the policy reasons present in DiMarco are noticeably absent in this case. Additionally, DiMarco dealt with the giving of incorrect advice by the health care professional. In DiMarco, the third party actually relied upon the erroneous medical advice. Here there was no incorrect advice but an allegation that the physician failed to inform his patient that she had poor eyesight, again, a condition of which the patient would have been aware. There is no indication that Ms. Witthoeft or Ms. Myers relied to their detriment upon erroneous advice from Dr. Kiskaddon to his patient. Indeed, Ms. Myers was in the best position to know the effects, if any, that her visual acuity would have on her driving. Thus, we find DiMarco inapposite to the present matter and will not extend its holding to impose liability upon a medical provider under the circumstances of this case. Although not directly on point, both the Franklin County Court of Common Pleas and the Superior Court found the decision in Crosby by Crosby v. Sultz, 405 Pa. Super. 527, 592 A.2d 1337 (1997) to be instructive. The decision in Crosby, like the case sub judice, involved Motor Vehicle Code reporting requirements. The facts of that case disclose that plaintiffs, who were pedestrians, were injured by a vehicle operated by James Jackson. Plaintiffs brought suit against a Dr. Marvin Sultz alleging that Jackson had sustained a temporary lapse of consciousness and lost control of the vehicle because of his diabetic condition. The plaintiffs claimed that Dr. Sultz not only should have counseled Jackson not to drive, but also should have reported him to PennDOT pursuant to the Motor Vehicle Code. The relevant reporting requirement, 67 Pa. Code§ 83.5(a)(2), mandated notification if the patient -5- 99-1257 CIVIL TERM suffered from unstable or brittle diabetes, unless there has been a continuous period of at least six months freedom from a related syncopal attack. The Crosby court held that the doctor did not breach a duty of care to the plaintiffs injured when the doctor's patient lost consciousness while operating a motor vehicle. While the loss of consciousness allegedly arose from a diabetic condition known to Dr. Sultz, the court noted that Jackson had not previously suffered a loss of consciousness as a result of his diabetes. Thus, the notification obligation under 67 Pa. Code§ 83.5 never arose. However, the court went on to state that: [e]ven if Dr. Sultz did have a duty to disclose Jackson's name to the Department of Transportation, we find no logical connection between that obligation and a duty of care to the [plaintiffs]. The [plaintiffs] were not foreseeable victims of Dr. Sultz's actions or inactions. See Zanine v. Gallagher, 345 Pa. Super. 119,497 A.2d 1332 (1985) (scope of duty is limited to those risks that are reasonably foreseeable by the actor under the circumstances); Alumni Ass'n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987) (accord), afl'd, 524 Pa. 356, 572 A.2d 1209 (1990). See also Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 207, 199 A.2d 875, 878 (1964) (duty extends to those 'falling within the foreseeable orbit of risk of harm.'). To discount the important element of foreseeability here is effectively to overrule well-established and precedential tort law, as well as to extend liability limitlessly to treating physicians vis-a-vis third-party victims. Crosby, 592 A.2d at 1345 (emphasis in original). [FN6] FNe. Additionally, cases involving mental health professionals' duty to warn third parties of threats by their patients are consistent with this rationale. Although not directly on point, case law from this Commonwealth, including the recent decision from this court in Emerich, makes clear that a duty to warn in this context only arises where there is an identifiable and foreseeable third party victim. Emerich; see also Leonard v. Latrobe Area Hospital, 425 Pa. Super. 540, 625 A.2d 1228 (1993); Dunkle v. Food Service East, Inc., 400 Pa. Super. 58, 582 A.2d 1342 (1990). -6- 99-1257 CIVIL TERM Thus, the court noted a lack of foreseeable risk and refused to find a duty on the part of the physician. The court added that to hold otherwise would be to render a doctor strictly liable for the conduct of his patients. Having considered these cases, we agree with the Superior Court that the issue in the present matter is more akin to Crosby than to the situation in DiMarco. It may be reasonably foreseeable that a patient exposed to an infectious and communicable disease will injure a third party unless properly informed to prevent the spread of the disease. However, we believe that it is an unreasonable extension .of the concepts of duty and foreseeability to broaden a physician's duty to a patient and hold a physician liable to the public at large within the factual scenario of this case. This is especially true where, as here, Dr. Kiskaddon did not cause or aggravate a medical condition that affected the patient's driving and the patient was necessarily aware of her medical condition. Appellant's decedent is simply not a foreseeable victim that this court will recognize. We will not stretch foreseeability beyond the point of recognition for to do so will be to make liability endless. To allow liability in this case would be to make physicians absolutely liable for the various acts of their patients. This we will not countenance. We recall the admonition eloquently stated by Chief Justice Flaherty in his concurring opinion in Emerich; it is a point equally applicable to the matter sub judice; Yes, one can reason in so many instances that an extension of liability is merely a small step flowing naturally and logically from the existing case law. Yet each seemingly small step, over time, leads to an ever proliferating number of small steps that add up to huge leaps in terms of extension of liability. At some point it must stop and I would draw the line in this area of the law with what is expressed by the court in this case--no further. Emerich, 720 A.2d at 1045. (Emphasis added.) Applying the reasoning in Witthoeft, we conclude in the case sub judice, that even if Hershey Medical Center was negligent in prematurely discharging Julianne Hamaker, no duty extends to her husband that could create liability for any injuries he incurred in a fall when he was caring for her because he was not within the foreseeable orbit of risk of harm. Therefore, we will grant defendant Hershey Medical Center's -7- 99-1257 CIVIL TERM demurrer to the claims against it by plaintiff Donald G. Hamaker, Sr. The claim of plaintiff, Julianne M. Hamaker, against defendant Hershey Medical Center, is grounded upon her allegation that the Medical Center prematurely discharged her from its care. That is a medical negligence claim the elements of which are (1) a duty owed by defendant to the patient, (2) a breach of that duty from the defendant to the patient, (3) that the breach of duty was a substantial factor in bringing about harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54 (1990). Defendant, Hershey Medical Center, has demurred to this claim noting, correctly, that Julianne M. Hamaker has not pleaded any damages arising from the alleged negligence of the hospital in prematurely discharging her. Pa. Rule of Civil Procedure 1019(f) provides that "Averments of time, place and items of special damages shall be specifically stated." Rather than granting a demurrer to plaintiffs' complaint, we will allow plaintiffs to file a more specific pleading to aver such special damages if there are any. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this /~ day of November, 1999, IT IS ORDERED: (1) Counts VI and X of plaintiffs' complaint having been withdrawn in their brief and at oral argument, ARE DISMISSED. (2) The demurrer of defendant Hershey Medical Center n/b/m Penn State Geisinger to the complaint of Donald G. Hamaker, Sr., IS GRANTED. The claim for -8- 99-1257 CIVIL TERM loss for consortium of Julianne M. Hamaker against defendant in Count XI, IS DISMISSED. (3) The demurrer of defendant, Hershey Medical Center n/b/m Penn State Geisinger, to the complaint of Julianne M. Hamaker, IS DENIED; however, Julianne M. Hamaker shall file an amended complaint setting forth any special damages as there may be in support of her claims. Neil L. Albert, Esquire For Plaintiffs By the Cou'rt,~,/// Edgar B. B~ley~, J. / Grant H. Fleming, Esquire For Defendant Hershey Medical Center n/b/m Penn State Geisinger Thomas E. Brenner, Esquire For Defendant Linda F. Johnson :saa -9-