HomeMy WebLinkAbout2004-4743 Civil
FRANCES M. ANGELOFF,
Individually and as Administratrix
Of the Estate of
SELENA M. ANGELOFF, deceased:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
JACK L. ARMSTRONG, M.D.,
et al
NO. 2004 - 4743 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
JACK L. ARMSTRONG, M.D., JOAN M. MONTELLO, M.D.
AND MEDICAL ARTS, ALLERGY, P.C.
BEFORE HOFFEK P.L OLEK GUIDO, JJ.
OPINION AND ORDER OF COURT
Defendants have filed numerous preliminary objections. For the reasons
hereinafter set forth we will 1) grant the objections to the claim for punitive damages and
to the claim based upon the theory of corporate negligence and 2) dismiss the preliminary
objection to the claim for damages in the wrongful death action. The remaining
preliminary objections will be dismissed without discussion.
The tragic incident giving rise to this action occurred on August 14,2003.
Defendants had developed an anti-allergy regimen for plaintiff s decedent approximately
9 months earlier. Pursuant to that regimen she had received a series of allergy specific
immunotherapy shots in progressively larger dosages. The shots were typically
administered by nurse practitioner Defendant Jodi Johnson.
On August 14,2003, nurse practitioner Johnson administered a shot and left
plaintiff s decedent sitting alone in the examination room. Within a few minutes she
emerged with signs of an allergic reaction to the shot. The nurse immediately
NO. 2004 - 4743 CIVIL TERM
administered drugs to counter the reaction. When plaintiff s decedent collapsed, 911 was
called immediately. Attempts to resuscitate her at defendants' office were futile. She
eventually died at Holy Spirit Hospital later that day.
Punitive Damages
Punitive damages may not be awarded for ordinary negligence, even gross
negligence. Hutchison v. Luddy, 763 A.2d 826, 827 (Pa.Super. 2000). As the Superior
Court has stated:
It is well settled that punitive damages will lie only in cases of
outrageous behavior, where defendant's egregious conduct shows
either an evil motive or reckless indifference to the rights of others.
Punitive damages are appropriate when an individual's actions are
of such an outrageous nature as to demonstrate intentional, willful,
wanton, or reckless conduct.
Slappo v. J's Development Associates, Inc. 791 A.2d 409,417 (Pa.Super. 2002) quoting
from Bannar v. Miller, 701 A.2d 232,242 (Pa.Super. 1997).
In the instant case plaintiffs' counsel contends that punitive damages are justified
for the following reasons:
. The defendants knew of decedent's history of uncontrolled asthma.
. They knew she had previously experienced allergic reactions to the
shots.
. They left her alone in an examination room without observation.
. The nurse practitioner administered the shot with no physician on
the premises.
. The resuscitative equipment on premises was not adequate for this
type of emergency.
2
NO. 2004 - 4743 CIVIL TERM
The above allegations amount to no more than negligence or gross negligence. They do
not evidence "an evil motive or reckless indifference to the rights of others". Therefore,
the claim for punitive damages cannot stand.
Corporate Negligence
In Thompson v. Nason Hospital, 27 Pa. 330, 591 A.2d 703 (1991) the
Pennsylvania Supreme Court adopted a "corporate negligence" theory of liability for
hospitals. As the Supreme Court stated:
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.
591 A.2d at 707.
In the recent case of Sutherland v. Monongahela Valley Hospital, 856 A.2d 55
(Pa. Super. 2004) the Superior Court refused to extend the theory of corporate negligence
to physician practice groups. Consequently, we must sustain the demurrer to the claim of
corporate negligence against Defendant Medical Arts Allergy, P.C.1
Wrongful Death Damages
In paragraph 92 of the complaint plaintiff avers the following:
Plaintiff claims on behalf of the above statutory beneficiary(ies), all
damages available under the Pennsylvania Wrongful Death Act, such as
pecuniary losses, loss of society, tutelage, advice, assistance and counsel,
funeral andlor burial expenses, as well as costs of administration.
1 We note that plaintiffs have pled a valid claim against Defendant Medical Arts Allergy, P.c. based upon
its vicarious liability for the acts of its employees. That claim is not affected by this decision.
3
NO. 2004 - 4743 CIVIL TERM
The statutory beneficiary is identified as the decedent's nine year old son.2 Defendants
object to the claim for "loss of society, advice and assistance and counsel."3 To the
extent that the plaintiffs' claim includes the type of loss of comfort and society normally
associated with a loss of consortium claim, defendant is correct. Pennsylvania does not
recognize a claim for "loss of parental consortium". Machado v. Kunkel, 804 A2d 1238,
1245. However, as the Machado court also stated:
Under Pennsylvania law, a child can recover in a wrongful death action
for the loss of companionship, comfort, society and guidance of a parent.
This element of damages had also been described as "loss of guidance,
tutelage, and moral upbringing."
804 A2d at 1245 quoting from Walton v. Avco Corp., 383 Pa.Super. 518557 A2d 372,
388 (1989). (citations omitted). Therefore, defendants' objection must fail.
ORDER OF COURT
AND NOW, this 13TH day ofMA Y, 2005, Defendants' Preliminary Objections
are GRANTED in part and DENIED in part. The Preliminary Objections to the claim for
punitive damage and corporate negligence are GRANTED. The remaining preliminary
objections are DENIED.
By the Court,
Isl Edward E. Guido
Edward E. Guido, J.
Peter M. Villari, Esquire
Paul D. Brandes, Esquire
Marianne K. Currie, Esquire
Leigh AJ. Ellis, Esquire
Francis E. Marshall, Esquire
Thomas M. Chairs, Esquire
2 Complaint, paragraph 5.
3 See Preliminary Objections, paragraph 44.
4