HomeMy WebLinkAbout2009-4167
ELIZABETH ANN MELLOTT, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
COMMONWEALTH OF : NO. 2009-4167 CIVIL TERM
PENNSYLVANIA, DEPARTMENT :
OF HEALTH, NURSE DOE, and :
CHURCH OF GOD HOME, :
Defendants :
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF HEALTH AND NURSE DOE.
BEFORE OLER, GUIDO, JJ.
OPINION AND ORDER
Currently before us are the preliminary objections in the nature of a demurrer filed by
defendants Commonwealth of Pennsylvania Department of Health and Nurse Doe. We have
reviewed the briefs filed by the parties in support of their respective positions and have heard
argument thereon. The matter is ripe for disposition.
The standard for evaluating preliminary objections in the nature of a demurrer is well
settled. As the Pennsylvania Supreme Court has stated:
The court may sustain preliminary objections only when, based on the facts
pleaded, it is clear and free from doubt that the complainant will be unable to
prove facts legally sufficient to establish a right to relief. . . . For the purpose of
evaluating the legal sufficiency of the challenged pleading, the court must accept
as true all well-pleaded, material, and relevant facts alleged in the complaint and
every inference that is fairly deducible from those facts.
Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-241, 961 A.2d 96, 101 (Pa. 1999) (citations
omitted). Applying that standard to the instant case, we are satisfied that the preliminary
objections should be sustained.
Factual Background.
We will begin with a recitation of the facts which are supported by the allegations in the
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complaint. Plaintiff is a licensed registered nurse. She was employed by the defendant Church
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of God Home as a nursing supervisor.
The defendant Commonwealth of Pennsylvania Department of Health is an
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administrative agency which, inter alia, oversees nursing home facilities. Defendant Church of
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God Homes is such a facility. Defendant Nurse Doe is a licensed registered nurse employed by
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the Department of Health as a registered nurse surveyor.
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A resident of the defendant Church of God Homes died on June 29, 2008. He was
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under Plaintiff’s care at the time of his death. The Department of Health sent Nurse Doe to
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conduct an investigation. Nurse Doe improperly concluded that the death was caused by
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Plaintiff’s negligent conduct. She threatened to revoke the license of Defendant Church of
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Complaint, paragraph 1.
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Complaint, paragraph 11.
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Complaint, paragraph 2.
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Complaint, paragraph 5.
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Complaint, paragraph 4.
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Complaint, paragraph 11.
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Complaint, paragraphs 13 – 18.
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Complaint, paragraph 20, 21.
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Complaint, paragraph 29.
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God Home unless it fired the Plaintiff. While the Church of God Home did not want to
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terminate Plaintiff, it did so solely because of Nurse Doe’s threats.
DISCUSSION
Plaintiff’s claims against that Department of Health and Nurse Doe are based upon
professional negligence (Count I) and tortious interference with employment relationship
(Count II). Defendants’ demurrer is based upon sovereign immunity. They claim the actions
alleged in the complaint do not fall within any of the statutory exceptions to sovereign
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immunity set forth in Section 8522 (b) of the Judicial Code.
Plaintiff agrees that her cause of action cannot be maintained against these defendants
unless it falls within one of the exceptions to sovereign immunity. However, she contends that
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the “medical-professional liability” exception applies. Under that exception the
Commonwealth may be liable for damages arising out of negligent “(a)cts of health care
employees of Commonwealth agency medical facilities or institutions or by a Commonwealth
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party who is a doctor, dentist, nurse or related health care personnel.”
The parties agree that neither Nurse Doe nor Department of Health provided any
medical care. Rather Plaintiff’s cause of action is based upon the defendants’ negligent
investigation and/or regulation of a health care provider.
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Complaint, paragraph 23.
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Complaint, paragraph 24.
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42 Pa. C.S. §8522 (b).
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42 Pa. C.S. §8522 (b) (2).
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42 Pa. C.S. §8522 (b) (2).
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Defendants contend that the “medical-professional” exception does not apply to the
investigation and regulation of health care providers by Commonwealth Agencies. We agree.
While there is no case directly on point, the words of Judge Sokolove of the Bucks County Court
of Common Pleas are as applicable today as they were twenty years ago:
The common theme in all these cases, which is not present here, is that the
Commonwealth party’s liability hinged upon its negligence in rendering health
care treatment or making a health care decision. These interpretations are
appropriate. As an exception to the rule of sovereign immunity, the medical-
professional liability waiver must be strictly construed and narrowly interpreted
against the party asserting liability.
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Delgado v. Department of Public Welfare, 12 Pa. D & C 4 381, 386 (Pa. Com. Pl. Bucks 1991).
See also Steinberg v. Commonwealth, 405 A.2d 1135 (Pa. Commonwealth 1979). Mascaro v.
Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987).
We are satisfied that the actions of both the Department of Health and Nurse Doe do
not fall within the medical professional liability exception to sovereign immunity. Therefore,
the defendants’ demurrer to Counts I and II of the complaint is SUSTAINED.
ORDER OF COURT
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AND NOW, this 9 day of MAY, 2011, the Defendants’ Preliminary Objection to Counts I
and II of the complaint is SUSTAINED.
By the Court,
/s/ Edward E. Guido
Edward E. Guido, J.
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Renee Knicos, Esquire
301 S. Hanover Street
Suite 1
Carlisle, Pa. 17013
Jeffrey M. Daitz, Esquire
70 Grand Avenue
River Edge, N.J. 07661
Daniel R. Goodemote, Esquire
TH
15Floor, Strawberry Square
Harrisburg, Pa. 17120
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