HomeMy WebLinkAbout99-1257 civil appeal3. A29006/00
.1ULIANNE M. HAMAKER AND
DONALD G. HAMAKER, SR.
Mm
LINDA F. JOHNSON & MILTON S.
HERSHEY MEDICAL CENTER, n/b/m
PENN STATE GEISINGER,
Appellees
APPEAL OF: DONALD G. HAMAKER, SR.
IN THE SUPERIOR COURT OF
PEN NSYLVANIA
NO. 268 MDA 2000
Appeal from the Order in the Court of
Common Pleas of Cumberland County,
Civil Division, No. 99 1257 Civil Term
BEFORE: CAVANAUGH, DEL SOLE and TAMILIA, ]].
MEMORANDUM:
I= I L E DJUL ! 9 ~00
Appellant, Donald Hamaker, Sr., appeals the November 12, 1999
Order sustaining the preliminary objections in the nature of a demurrer of
appellee, Hershey Medical Center, and dismissing appellant's complaint
seeking recovery and punitive damages for negligence and intentional
infliction of emotional distress.
On March 7, 1997, appellant's wife, ]ulianne Hamaker, was involved in
an automobile accident and sustained a fractured ankle as a result. She
underwent surgery at the Hershey Medical Center and remained there until
March 11th, when she was discharged to appellant's care. Appellant
allegedly strained his shoulder, neck and back while carrying his wife from
his automobile to their home following her discharge. Almost two years
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later, on March 4, 1999, appellant and his wife instituted a medical
malpractice action by writ of summons and, thereafter, filed their complaint,
· wherein they alleged the following with regard to Hershey Medical Center:
17. On the morning of March 11, 1997, agents of
[appellee] contacted [appellant] and informed
him that he needed to come to the center right
away and pick up his wife, as she was being
discharged.
18. [Appellant and his wife] were informed by
hospital personnel that she was being
discharged because there was no bed space for
her.
19. When [appellant] 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, [appellant's wife]
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.
2:~. At the time of discharge, a nurse employed by
[appellee] demonstrated to [appellant], 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 hospital bed would be
provided.
22. [Appellant] transported his wife to their home in
his private car.
23. When [appellant] attempted to transfer [his
wife] from the family car when he reached their
home, he strained his shoulder, neck and back,
causing personal injuries for which damages are
claimed.
(Appellant's complaint at 4-6.) On May 27, 1999, appellee responded to
these paragraphs by filing preliminary objections in the nature of a demurrer
asserting: 1) they owed no duty to appellant; 2) appellant did not suffer any
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physical manifestation of emotional distress; and 3) their conduct was not
outrageous, wanton or willful (Appellee's preliminary objections at 4-10).
The trial court agreed and, by Order dated November 12, 1999, dismissed
appellant's claims for negligence, intentional infliction of emotional distress
and punitive damages. On December 13, 1999, appellant filed this appeal,z
Our standard of review is well settled:
Where a preliminary objection in the nature of a
demurrer is sustained, an appellate court's review is
limited. All material facts set forth in the complaint
as well as all inferences reasonably deducible
therefrom are admitted as true for [the purpose of
this review.] The question presented by the
demurrer is whether, on the facts averred, the law
says with certainty that no recovery is possible.
Where a doubt exists as to whether a demurrer
should be sustained, this doubt should be resolved in
favor of overruling it.
Moser v. Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996)
(citation omitted).
Appellant argues his complaint set forth sufficient facts to support a
negligence cause of action against appellee and, thus, the trial court erred
by sustaining appellee's preliminary objections. He states,
~ According to appellant's counsel's February 22, 2000 letter to this Court, all
claims against Linda .lohnson were resolved prior to this appeal when her
liability carrier, Erie Insurance, paid its policy limits to appellant and his wife
and they executed a joint tortfeasor release in an interpleader action at
1;CV-99-0809 U.S. District Court, Middle District. On December 7, 1999,
appellant's wife voluntarily discontinued her claims against appellee Hershey
Medical Center and, thus, the court's November 12, ::[999, Order is final and
appealable to this Court. See Pa.R.A.P. 341, Final Orders; Generally; and
Pa.R.C.P. 229, Discontinuance.
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[Appellan, t] pleaded that [his wife] was not
ambulatory, was stuporous from medication, and
was not medically ready for discharge. [Appellee]
discharged her without either providing proper
services to the parties or in warning [appellant]
regarding the dangers that her condition presented.
He was injured in an attempt to transport his wife.
[Appellee] was negligent in placing him in that
situation.
(Appellant's brief at 12.) He makes a general assertion that appellee owed a
duty to him as a foreseeable victim of its omissions. In support of his
argument, appellant cites to our Supreme Court's decision in Di~arco v.
Lynch Homes-Chester County~ Xnc., 525 Pa. 558, 583 A.2d 422 (1990).
In DiMarco, our Supreme Court held that a physician may be liable to
a third party who is injured because of the physician's negligent treatment of
a patient. In DiAfarco, a blood technician, who had been stuck by a needle
and exposed to Hepatitis B, was told by her physician that if she remained
symptom free for six weeks, she could resume sexual relations without the
risk of infecting her partner. After eight weeks of abstinence, the patient
had sexual relations with her partner and, thereafter, her partner became
infected with Hepatitis B. The patient's partner brought an action against
the physician alleging his negligence in failing to inform the patient that
having sexual relations within six months of exposure to Hepatitis B could
infect her partner. Our Supreme Court stated,
If a third person is in that class of persons whose
health is likely to be threatened by the patient, and if
erroneous advice is given to that patient to the
ultimate detriment of the third person, the third
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person has a cause of action against the physician
because the physician should recognize that the
services rendered to the patient are necessary for
the protection of the third person.
Xd. at 563, 583 A.2d at 424-25. The Court, therefore, extended a
physician's liability to a third party whose health could be compromised by
exposure to a patient suffering from a communicable disease, i.e. a third
party within the "foreseeable orbit of risk of harm". Xd, at 562, 583 A.2d at
424.
Appellant claims that, like the plaintiff in DiMar¢o, he fell within the
foreseeable risk of harm when appellee prematurely discharged his wife and
failed to warn him of the danger her condition presented. We decline,
however, to find appellee owed a duty to appellant, who was not within the
foreseeable orbit of risk of harm. Unlike treatment of a communicable
disease, we cannot conclude that keeping appellant's wife in the hospital for
treatment of a fractured ankle was necessary for his protection. Appellee
had no way of knowing its discharge of appellant's wife would threaten
appellant's health and no way of anticipating the events which occurred off
of the hospital grounds. Accordingly, we find appellant did not fall within the
foreseeable risk of harm and that appellee did not owe a duty to appellant.
See Troxel v. A._~. Dupont Znst., 675 A.2d 314 (Pa. Super. 1996) (a
determination of foreseeability is the essence of a determination of duty),
citing DiMarco, supra.
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Appellant also claims appellee's conduct in discharging his wife was
sufficiently outrageous to warrant his cause of action for intentional infliction
of emotional distress and punitive damages.2'3 In regard to the intentional
infliction of emotional distress claim, the complaint asserts that:
30. The conduct of [appellee] as described above, in
discharging [appellant's wife] prematurely, in forcing
[appellant] to accept responsibility for her when
[appellee] has no reason to believe that he had the
ability to manage her treatment, and in falsely
promising that medical nursing services would be
provided by Visiting Nurses and that hospital
equipment would be supplied, constitute extreme
and outrageous conduct which is not to be tolerated
in a civilized society.
31. As a result of the action of [appellee],
[appellant] has suffered and continues to suffer
emotional distress.
2 Although appellant failed to include these issues in his "Statement of
Questions Involved", in violation of Pa.R.A.P. 2116, Statement of
questions involved, (a), General Rule, we decline to find them waived
and address their merits herein. See Lar$on v. Diveglia, 674 A.2d 728,
729 n. I (Pa. Super. 1996), rev'd on other grounds, 549 Pa. 118, 700 A.2d
931 (1997) (appellate review of issues not presented in Statement of
Questions proper where appellant's brief suggests issues on appeal and
failure to present them in statement does not impede court's ability to
address the merits).
3 The trial court failed to address these issues in its Opinion in support of the
November 12th Order, in violation of Pa.R.A.P. 1925, Opinion in Support of
Order, (a), General Rule; however we will address them herein. The
reasoning of the trial court is not crucial to our determination because we
are reviewing preliminary objections in the nature of a demurrer and, as
such, we are addressing a question of law. See Halpin v. LaSalle Univ.,
639 A.2d 37, 39 (Pa. Super. 1994) ("In deciding an issue of law, an
appellate court need not defer to the conclusions of the trial court.") (citation
omitted).
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(Appellant's complaint at 7.)
The elements necessary to sustain a cause of action for intentional
infliction of emotional distress are provided in the Restatement (Second) of
Torts § 46, Outrageous conduct causing severe emotional distress:
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other
results from it, for such bodily harm.
(2) Where such conduct is directed at a third person,
the actor is subject to liability if he intentionally or
recklessly causes severe emotional distress
(a) to a member of such person's immediate
family who is present at the time, whether or not
such distress results in bodily harm, or
(b) to any other person who is present at the
time, if such distress results in bodily harm.
See Taylor v. Albert Einstein Med. Ctr., 2000 Pa. LEXIS 1206, '6 (2000)
(although not formally adopted, R.2d Torts § 46 sets forth minimum
elements necessary to sustain intentional infliction of emotional distress
action). This Court has noted, "[the] conduct must be so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society." R.2d Torts § 46, comment (d). See also Buczek v. First
Nat'l Bank, 531 A.2d 1122, 1125 (Pa. Super. 1987) (citation omitted). A
plaintiff must also allege the outrageous conduct caused him to seek medical
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treatment. Kazatsky v. King David Memorial Park, 515 Pa. 183, 197-98,
527 A.2d 988, 995 (1987).
]:n this case, it is clear appellant's complaint fails to set forth sufficient
facts upon which a cause of action for intentional infliction of emotional
distress can be based. "While our courts recognize a cause of action for
intentional infliction of emotional distress, we have allowed recovery in only
very egregious cases." Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super.
1997), affirmed by, 554 Pa. 134, 720 A.2d 745 (1998). We cannot, as a
matter of law, find appellee's course of conduct demonstrates the amount of
outrageousness required as an element of this action. Accepting the
averments in appellant's complaint as true, the fact that appellee discharged
appellant's wife into his care, when he could not manage her treatment, is
not shocking or outrageous. Moreover, appellant does not claim appellee's
conduct caused him to seek medical treatment. Accordingly, we agree with
the trial court's conclusion that the facts, as set forth by appellant in his
complaint, are insufficient to support a claim of intentional infliction of
emotional distress.
In light of the foregoing discussion, appellant's claim for punitive
damages cannot be sustained on the facts averred in his complaint. See
G.$.D.v. $ohnson, 552 Pa. 169, 713 A.2d 1127 (1998) (punitive damages
are awarded to punish a defendant for certain outrageous acts); and
Strickland v. University of Scranton, 700 A.2d 979 (Pa. Super. 1997)
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(where appellant failed to establish each cause of action raised in his
complaint, court need not address claim for punitive damages).
Order affirmed.
Pn ~onotary
Date: .JIJ[ 19 ~
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