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Home My WebLink About95-7213 CivilJOANNE E. RICKARDS & GIRARD F. RICKARDS, W/H Plaintiffs Ve MICHAEL J. PAGE, M.D., CARL BRONITSKY, M.D., WOMEN'S MEDICAL ASSOCIATES, P.C., SUSQUEHANNA SURGEONS, LTD., and GRANDVIEW SURGERY AND LASER CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-7213 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS, MICHAEL J. PAGE, M.D. AND SUSQUEHANNA SURGEONS, LTD., TO PLAINTIFFS' COMPLAINT BEFORE OLER, J. ORDER OF COURT AND NOW, this ~0~~ day of May, 1996, after careful consideration of the Preliminary Objections of Defendants Michael J. Page, M.D. and Susquehanna Surgeons, Ltd., to Plaintiffs' Complaint, as well as the briefs and oral arguments presented in the matter, and for the reasons stated in the accompanying opinion, the preliminary objections are SUSTAINED in part and DENIED in part. Pursuant to an agreement of counsel reached at oral argument, subparagraph (d) of paragraph 25 of Plaintiffs' complaint is STRICKEN as it pertains to the moving parties. In all other respects the preliminary objections are DENIED. BY THE COURT, Raymond M. Bily, Esq. Suite 406 101 Washington Lane Jenkintown, PA 19046 Attorney for Plaintiffs Loretta M. Belfiglio, Esq. Suite 108 521 Plymouth Road Plymouth Meeting, PA 19462 Attorney for Defendants Michael J. Page, M.D., and Susquehanna Surgeons, Ltd. Michael W. McGuckin, Esq. Suite 209 1850 William Penn Way P.O. Box 10690 Lancaster, PA 17605-0690 Attorney for Defendants Carl Bronitsky, M.D., and Women's Medical Association Thomas J. Bradley, Esq. 110 Summit Avenue Montvale, NJ 07645 Attorney for Defendant Grandview Surgery and Laser Center : rc JOANNE E. RICKARDS & GIRARD F. RICKARDS, W/H Plaintiffs V® MICHAEL J. PAGE, M.D., CARL BRONITSKY, M.D., WOMEN'S MEDICAL ASSOCIATES, P.C., SUSQUEHANNA SURGEONS, LTD., and GRANDVIEW SURGERY AND LASER CENTER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-7213 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS, MICHAEL J. PAGE, M.D. AND SUSQUEHANNA SURGEONS, LTD., TO PLAINTIFFS' COMPLAINT BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J. This case is a professional negligence action in which Plaintiffs allege that a surgical clip "or other foreign material" was left in Plaintiff Joanne E. Rickards' body following surgery. Currently before the court are preliminary objections of Defendants Michael J. Page, M.D., and Susquehanna Surgeons, Ltd., to Plaintiffs' complaint. STATEMENT OF FACTS The facts averred in Plaintiffs' complaint may be summarized as follows: Plaintiffs are Joanne E. Rickards and Girard F. Rickards, a married couple, residing at 830 Doubling Gap Road, Newville, Cumberland County, Pennsylvania. Defendant Michael J. Page, M.D., is a physician and surgeon licensed under the laws of Pennsylvania, with a place of business at 532 North Front Street, Wormleysburg, Cumberland County, Pennsylvania. Defendant Carl Bronitsky, M.D., is a physician licensed under the laws of NO. 95-7213 CIVIL TERM Pennsylvania, specializing in gynecology, with his principal place of business at 1 Lemoyne Square, Lemoyne, Cumberland County, Pennsylvania. Defendant Women's Medical Associates, P.C., is a Pennsylvania corporation engaged in the provision of medical services, acting by and through its agents, including Defendant Bronitsky. Defendant Susquehanna Surgeons, Ltd., is a Pennsylvania business entity engaged in the provision of medical services, acting by and through its agents, including Defendant Page. Defendant Grandview Surgery and Laser Center is a Pennsylvania business entity with its principal place of business at 205 Grandview Avenue, Camp Hill, Cumberland County, Pennsylvania. On December 6, 1991, Plaintiff Joanne E. Rickards went to the Grandview Surgery and Laser Center for a gallbladder operation. In the operation, performed by Defendants Page and Bronitsky, assisted by agents of Grandview, a surgical clip or other foreign material was left in Ms. Rickards' body. This item was found by an x-ray taken at the Milton S. Hershey Medical Center on February 1, 1995. Plaintiffs' complaint includes the following paragraphs: 17. In the course of the operation performed upon Joanne E. Rickards by [defendant] ... Michael J. Page ... the body of the plaintiff was opened and the defendants ... negligently, recklessly, willfully and with deliberate indifference, placed, lost, left, caused, failed to count, failed to use x-ray or other diagnostic tests to find and retrieve and permitted to be left in plaintiff's, Joanne E. Rickards, body a 2 NO. 95-7213 CIVIL TERM surgical clip or other foreign material and closed and then permitted the incision to heal while the surgical clip or other foreign material remained in plaintiff's body. 20. On or about December 6, 1991, the co-defendants failed to exercise the degree of care or skill ... ordinarily exercised in similar operations by other surgeons and physicians considering the state of knowledge in medicine and surgery and were negligent, reckless, willful and/or deliberately indifferent to the health and well being of plaintiff by not making an instrument count or using x-ray or other diagnostic tests to find any missing surgical clip or other foreign material and instead ordering that no instrument count be taken .... 21. Plaintiff, who was under anesthesia during the December 6, 1991 operation, was not told by any of the defendants about the absence of an instrument count, that there was a missing surgical clip or foreign object, and/or failure of the defendants to employ x-ray or other diagnostic tests to determine if there was a missing surgical clip or other instrument or foreign material left in the body of the plaintiff at the time of her operation. 25. The damages sustained by the plaintiffs were solely the result of the negligent, reckless, willful, and outrageous acts and omissions of the defendants, Michael J. Page, M.D., Carl Bronitsky, M.D., and Susquehanna Surgeons, Ltd. and Women's Medical Associates, P.C., and which include the following: ... (h) maliciously failing to inform a patient that an order not to take an instrument count was ordered while knowing that there was 3 NO. 95-7213 CIVIL TERM a substantial likelihood of a missing or unaccounted for surgical clip or foreign material left in her body. Plaintiffs' Complaint, paragraphs 17, 20-21, 25(h) (emphasis added). The present preliminary objections to Plaintiffs' complaint are in the form of (1) a motion to strike a general allegation of negligence and (2) a motion to strike general allegations of recklessness and a claim for punitive damages based thereon. At oral argument Plaintiffs' counsel conceded the propriety of Defendants' motion to strike subparagraph (d) of paragraph 25 of the complaint on the ground that it constituted a general allegation of negligence.~ Accordingly, the balance of this opinion will be devoted to Defendants' motion asserting the legal This allegation read as follows: 25. The damages sustained by the plaintiffs were solely the result of the negligent, reckless, willful, and outrageous acts and omissions of the defendants, Michael J. Page, M.D., Carl Bronitsky, M.D., and Susquehanna Surgeons, Ltd., and Women's Medical Associates, P.C., and which include the following: ... d. failure and/or reckless failure to exercise the degree of skill and care ordinarily exercised by other surgeons and medical providers performing similar operations taking into consideration the state of knowledge in medicine and surgery required to undertaking the medical/surgical care of the plaintiff; .... NO. 95-7213 CIVIL TERM insufficiency of Plaintiffs' complaint as it pertains to punitive damages based upon allegedly reckless conduct. STATEMENT OF LAW It is well settled in Pennsylvania that "[t]he test on preliminary objections [which would result in dismissal of a claim] is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief." Bower v. Bower, 531 Pa. 54, 57, 611A.2d 181, 182 (1992). In determining whether to grant such a preliminary objection, the "[c]ourt must consider as true all of the well-pleaded material facts set forth in [the pleading challenged] and all reasonable inferences that may be drawn from those facts." Id. Moreover, such "preliminary objections will only be sustained if clear and free from doubt." Triage, Inc. v. Commonwealth of Pennsylvania, Dep't of Transp., 113 Pa. Commw. 348, 354 n.7, 537 A.2d 903, 907 n.7 (1988). The Supreme Court of Pennsylvania, in addressing the issue of the propriety of assessing punitive damages against a party, has stated that [p]unitive 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. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. 5 NO. 95-7213 CIVIL TERM Martin v. Johns-Manville Corp., 508 Pa. 154, 169-70, 494 A.2d 1088, 1096 (1985), quoting Restatement (Second) of Torts §908(2) (1965). In a determination of whether punitive damages are appropriate, "[t]he state of mind of the actor is vital." Feld v. Merriam, 506 Pa. 383, 396, 485 A.2d 742, 748 (1984). Assessing such damages is "proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct." SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). On the issue of whether a complaint sufficiently alleges that a defendant's conduct rises to the level of displaying a reckless indifference to the rights of others, it is necessary to "analyze whether the complaint's allegations establish that the actor actually knew or had reason to know of facts which created a high risk of physical harm to [the] plaintiff." Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 425, 565 A.2d 1170, 1182 (1989). "Further, the defendant must have proceeded to act in conscious disregard of or indifference to that risk." Id. If the complaint alleges that the defendant realized the high degree of risk involved and consciously disregarded or exhibited indifference to this risk, "a jury question on the issue of punitive damages exists." Id. at 426, 565 A.2d at 1182. With regard to the necessity of pleading facts evincing malice, wantonness, or evil motive on the part of a defendant, it SO. 95-7213 CTV :*~e 1019(a~ sets or' .,,-,a~h), however, pr __~A oenerall¥ 1 · · ns of mind ma~ ~ and other cond~t~o -iCATION ~ -~e-ing, inter ~~=_ =~e aPParently Tn the present case, plaintiffs are · . that no inventory of instr~entS be ---d ~n connection w~ .... ~ rv that an ~ e . was not info,ed after the ~~r diagnostic measure that she d that no x-ray ex~nat~°n or oL~_ ring the succeeding missing, an - 'rem in her body du _ -ndertaken to locate the · . allegations and all was u Accepting as we must these four yearS. . -- ~om them as true, we can . t may be ~rawn ~- reasonable ~nferenCes tha .... ~er there was any reckless e ~ssue to be that th . learly not say -= Ms. Rickards ~s so c .~[l~e~ to the rights u~ ~ ~ ~reliminary ersely to plaintiffs as to preclude a~ stage all possibility of an award of punitive d~ages- For this reasOn, the following order will be entered: ORDER OF CouRT 1996, after careful ~D NOW, this /~ ~ day of May, consideration of the preliminary Objections of Defendants Michael .~ to plaintiffs' susquehanna surgeons, ~uu., . -resented in j. Page, M.D- and the r ~f~t~d ~a~ ~%7~n~i Complaint, as well as th~ ng open,on, h the matter, and for a 7 ~IL TERM .~ 95~7213 CT ~u.--~NED in part an the pre£Z . -~ a reement _ ~_,~ s' comp _- pursuant to a~. g_ _a.~a~h 25 of P£a~-ff ther pazt- _b-aragraPh (d) of paz ~- ~ving parties' In all o argument, su ~ .~ _ertainS to the mo --TED- is STRICKEN as z~ F objections are DEm respects the prelimina~ BY T~E COURT, .... esle~, Ol~ o, Jo Ra%~mond M. BilY, Esq. '~.-. 406 suite Lane -^1 ~ashingtOn_ 19046 ~u PA ' s jenkintoWn~'^~ plaintiff Attorney ~- Loretta M. Belfigli°' Esq- suite Pl~°uth ~oad 521 PA 19462 pl~outh Meeting, Defendants for and Attorn~Y~ page, M.D- , ~-td. Michae~ ~L~ ~urqe°ns' Michael W. McGUCkin, Esq. ' te 209 Way p.O. Box PA 17605-0690 Lancaster, r Defendants ne fo . and Attor Y .--,-.. M-D , carl Bron~s~3 ' Association ~omen' s MediCal 8 NO. 95-7213 CIVIL TERM Thomas J. Bradley, Esq. 110 Summit Avenue Montvale, NJ 07645 Attorney for Defendant Grandview Surgery and Laser Center : rc