The URL can be used to link to this page

Home My WebLink About01-1300 CivilREBECCA GARRITY and GREGORY GARRITY, Plaintiffs RUSSELL A. MACALUSO, M.D., and BRADFORD J. WOOD, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1300 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT MACALUSO TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY and OLER~ JJ. OPINION and ORDER OF COURT OLER, J., July 31,2001. In this medical malpractice action, Plaintiffs have sued a physician engaged in family practice and a physician specializing in otolaryngology. The gravamen of the complaint is that Defendants failed to make a timely diagnosis of a condition known as acoustic neuroma. For disposition at this time are preliminary objections of the otolaryngologist to Plaintiffs' complaint. The object of the preliminary objections is to secure a dismissal of Plaintiffs' claim for punitive damages. ~ For the reasons stated in this opinion, Defendant's preliminary objections will be sustained. ~ By stipulation of counsel, a claim for punitive damages against the other physician was dismissed earlier. Order of Ct., June 28, 2001. STATEMENT OF FACTS The allegations of Plaintiffs' complaint may be summarized as follows. In the summer of 1998, Plaintiff Rebecca Garrity, 39, noticed a diminution of hearing in her right ear and began to experience tinnitus, pain, and a feeling of pressure in that ear.2 Her family physician, Defendant Wood, was unsuccessful in relieving the symptoms with an antihistamine,3 and Ms. Garrity consulted Defendant Macaluso, a specialist in diseases of the ear, nose and throat.4 Defendant Macaluso misdiagnosed her condition as otosclerosis and prescribed a hearing aid. 5 When her hearing continued to worsen, Ms. Garrity inquired as to whether an MRI would be advisable.6 Defendant Macaluso felt that economically such a test was not justified by her symptoms, a conclusion as to which Defendant Wood concurred.7 By the end of the winter of 2000, Ms. Garrity had lost all hearing in her right ear and an MRI was ordered by Defendant Macaluso.a The MRI revealed the existence of an acoustic neuroma.9 Although the tumor was successfully removed,l° Ms. Garrity suffered permanent residual effects from the delayed diagnosis. ~ Defendant Macaluso's treatment of Ms. Garrity was characterized in the complaint as negligent, grossly negligent and recklessly indifferent. ~2 A claim for punitive damages was included in the pleading. ~3 Pis.' Compl., para. 5. Pis.' Compl. paras. 6-7. Pis.' Compl. paras. 8, 13. Pls.' Compl. paras. 14, 16. Pls.' Compl. para. 18. Pls.' Compl. paras. 15, 17-21. Pls.' Compl. paras. 23-27. Pls.' Compl. para. 28. l0 Pls.' Compl. para. 33. ~ Pls.' Compl. paras. 32-33. ~: Pls.' Compl. paras. 35-41, 43. ~3 Pls.' Compl. at 9 (Count I, ad damnum clause). 2 Defendant's preliminary objections were listed for the July 25, 2001, argument court. The matter was submitted to the court on briefs. DISCUSSION Statement of law. In a case of the present type, "[p]unitive damages may be awarded where the defendant's conduct evidences a 'reckless indifference to the rights of others.'" Taylor v. Albert Einstein Medical Center, 723 A.2d 1027, 1037 (Pa. Super. Ct. 1998) (quoting Feldv. Merriam, 506 Pa. 383,395, 485 A.2d 742, 748 (1984)) In this regard, however, "although '[re]alice, intent, knowledge, and other conditions of mind may be averred generally' in a pleading, the attendant material facts pled must support such an averment." Robbins v. Cumberland County Children and Youth Services, 48 Cumberland L.J. 82, 94 (1999) (quoting Pa. R.C.P. 1019(b)); see Waklet-Riker v. Sayre Area Education Association, 440 Pa. Super. 494, 501, 656 A.2d 138, 141 (1996); Dorsey v. Pinker, 48 Cumberland L.J. 271,276 (1999). In the context of preliminary objections to a claim for punitive damages in a medical malpractice action, the Honorable Kevin A. Hess of this court has stated the following: With respect to punitive damages, Pennsylvania has adopted the following language from the RESTATEMENT (SECOND) OF TORTS §908 (2) (1965): "Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Martin v. Johns- Manville Corp., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (Pa. 1985). An actor displays a "reckless indifference to the rights of others" if the "actor knows, or has reason to know,.., of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fail to act, in conscious disregard of, or indifference to, that risk." Id. at 1097 (quoting RESTATEMENT (SECOND) OF TORTS § 500 cmt. a. (1965)). "Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment." Id. at 1097 (citing RESTATEMENT (SECOND) OF TORTS § 908 cmt. b. (1965)). Facts supporting a claim of outrageous conduct must be found in plaintiff's complaint. Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743,745 (1980). 3 Townsend-Ensor v. Entwistle, No. 98-5606 Civil Term, slip op. at 4-5 (Ct. Com. Pl. Cumberland County June 17, 1999). Application of law to facts. In the present case, the substance of Plaintiffs' complaint against Defendant Macaluso is that he misdiagnosed a condition of Ms. Garrity as otosclerosis, proceeded to treat her for that condition, and did not promptly subject her to the test which ultimately led to a correct diagnosis and proper treatment. These allegations do not rise to the level of facts supporting the proposition that Defendant Macaluso acted outrageously, with an evil motive or with a reckless or conscious indifference to Ms. Garrity's well-being. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 31st day of July, 2001, upon consideration of the preliminary objections of Defendant Macaluso seeking dismissal of Plaintiffs' claim for punitive damages, the preliminary objections are sustained and Plaintiffs' claim for punitive damages is dismissed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Robin J. Marzella, Esq. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Michael M. Badowski, Esq. 3510 Trindle Road Camp Hill, PA 17013 Attorney for Defendant Russell A. Macaluso, M.D. 4 Peter J. Curry, Esq. 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant Bradford J. Wood, M.D. ~rc 5 6 REBECCA GARRITY and GREGORY GARRITY, Plaintiffs RUSSELL A. MACALUSO, M.D., and BRADFORD J. WOOD, M.D., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-1300 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT MACALUSO TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY and OLER~ JJ. ORDER OF COURT AND NOW, this day of July, 2001, upon consideration of the preliminary objections of Defendant Macaluso seeking dismissal of Plaintiffs' claim for punitive damages, the preliminary objections are sustained and Plaintiffs' claim for punitive damages is dismissed. BY THE COURT, J. Wesley Oler, Jr., J. Robin J. Marzella, Esq. 3513 North Front Street Harrisburg, PA 17110 Attorney for Plaintiffs Michael M. Badowski, Esq. 3510 Trindle Road Camp Hill, PA 17013 Attorney for Defendant Russell A. Macaluso, M.D. Peter J. Curry, Esq. 305 North Front Street Sixth Floor P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendant Bradford J. Wood, M.D. ~rc