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NICOLE KNOTT and : IN THE COURT OF COMMON PLEAS OF
KYLE LEHMAN, as Parents and : CUMBERLAND COUNTY, PENNSYLVANIA
Natural Guardians of KADE LEHMAN :
A Minor, and NICOLE KNOTT and :
Kyle Lehman, In Their Own Right, :
PLAINTIFFS :
:
v. :
:
HOLY SPIRIT HEALTH SYSTEM and :
HOLY SPIRIT HOSPITAL and :
YOKE K. TAN, M.D. and :
TAN & GARCIA PEDIATRICS and :
DEBBIE DURISEK, M.D. and :
QUANTUM IMAGING & THERAPEUTIC:
ASSOCIATES, :
DEFENDANTS : NO. 11-1304 CIVIL
IN RE: DEFENDANTS, DEBBIE DURISEK, M.D. AND QUANTUM IMAGING &
THERAPEUTIC ASSOCIATES’ PRELIMINARY OBJECTIONS TO PLAINTIFFS’
COMPLAINT
BEFORE HESS, J. AND EBERT J.
OPINION AND ORDER OF COURT
Ebert, Jr., J., November 9, 2011 –
PROCEDURAL HISTORY
Plaintiffs, Nicole Knott and Kyle Lehman, parents of Kade Lehman, commenced
this civil action by filing a complaint on February 3, 2011. The complaint contains two
causes of action against the various Defendants which include Debbie Durisek, M.D.
(hereinafter Dr. Durisek) and Quantum Imaging & Therapeutic Associates, Inc.
(hereinafter Quantum). The complaint includes a cause of action for medical
malpractice based on the claimed “negligence, carelessness and misconduct” of these
defendants, and a second cause of action claiming negligent infliction of emotional
distress.
Dr. Durisek and Quantum filed Preliminary Objections on May 12, 2011, in the
nature of a Demurrer and/or Motion to Strike the Plaintiffs’ (1) Vague Allegations of
Agency and (2) the claim of Negligent Infliction of Emotional Distress. Both parties filed
briefs in regard to the Preliminary Objections, and the matter was argued before the
Court on July 15, 2011.
STATEMENT OF FACTS
On August 30, 2010, at 4:21 a.m., Nicole Knott, gave birth to her first son, Kade,
1
at Holy Spirit Hospital. The birth was witnessed by her husband, Kyle Lehman.
Approximately 30 minutes after birth, at 4:50 a.m., a nurse’s assessment indicated that
2
the child had a condition diagnosed as “bilateral hydrocele.” A hydrocele is
characterized by swelling of the scrotum. It is generally a benign condition. Both Nicole
and Kyle were constantly reassured throughout the day of Kade’s birth, as well as the
following day, that the swelling of his scrotum did not represent any danger whatsoever
to their child.
At approximately 8:00 a.m., Kade was examined by a pediatrician, Yoke Y. Tan,
3
M.D., who also diagnosed the swollen scrotum as bilateral hydroceles. A bilateral
scrotal/testicular ultrasound was done by Dr. Durisek as 11:37 a.m. on August 30, 2010.
Dr. Durisek’s report noted “duplex evaluation of testicles was not performed. The child’s
testicles were not evaluated for arterial and venous flow.” Dr. Durisek concluded her
4
findings stating “bilateral hydroceles, large on the right and small on the left.” The
ultrasound finding of the benign nature of the swollen scrotum was reported to Nicole
1
Plaintiffs’ Complaint, filed February 3, 2011, ¶¶ 22, 47 [hereinafter Pls.’ Compl. ¶__].
2
Pls.’ Compl. ¶24.
3
Pls.’ Compl. ¶27.
4
Pls.’ Compl.¶ ¶ 28 - 30.
2
and Kyle further reassuring them that their son did not suffer from any potentially
dangerous condition.
The infant, Kade, was next seen by Dr. Tan at approximately 7:30 a.m. on
5
August 31, 2010. Again Dr. Tan noted that the ultrasound of the testes had been done.
6
At 8:00 a.m. that morning, he ordered “doppler studies of testes, [to] rule out torsion.”
This test was not performed however until more than 8 hours later, and revealed an
absence of blood flow to Kade’s testicles. At approximately 5:15 p.m. on August 31,
2010, Dr. Tan was notified of the results of the ultrasound and the child was
immediately transferred to the Hershey Medical Center NICU at approximately 6:00
7
p.m. Testicular torsion was confirmed. Both testicles were found to be necrotic and
8
therefore both of the child’s testicles were surgically removed.
Thereafter, both parents were informed, to their great shock, that the condition
which they had been repeatedly assured was benign was in fact potentially devastating
to the future of their child.
DISCUSSION
In evaluating preliminary objections to a complaint, the court is to deem all
material facts and reasonable inferences as true. Werner v. Plater-Zyberk, 799 A.2d
776, 782 (Pa. Super. 2002). The court “need not consider the pleader's legal
conclusions, unwarranted inferences from facts, opinions, or argumentative allegations.”
Id. Preliminary objections should be granted where, “on the facts averred, the law says
with certainty that no recovery is possible.” Id. at 783 (citing DeMary v. Latrobe Printing
5
Pls.’ Comp. ¶31
6
Pls.’ Comp., ¶32.
7
Pls.’ Comp., ¶34.
8
Pls.’ Comp. ¶35.
3
& Publ'g Co., 762 A.2d 758, 761 (Pa. Super. 2000)). Where a doubt exists as to
whether a demurrer should be sustained, this doubt should be resolved in favor of
overruling it. Corestates Bank, Nat’l Assn. v. Cutillo, 723 A.2d 1053, 1057 (Pa.Super.
1999). See also, Mulholland v. Pittsburgh National Bank, 405 Pa. 268 271-272, 174
A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear
and free from doubt that the facts pleaded are legally insufficient to establish a right to
relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331, 1335 (1996).
The Defendant’s preliminary objections raise the following issues:
I. Demurrer and/or Motion to Strike Plaintiffs’ Vague Allegations
Of Agency.
II. Demurrer and/or Motion to Strike Plaintiff’s Claim for
Negligent Infliction of Emotional Distress
This Court will now address each of these issues in turn.
I. Allegations Of Agency
To survive preliminary objections, Plaintiffs’ allegations of agency and vicarious
liability must minimally allege facts that: “(1) identify the agent by name or appropriate
description; and (2) set forth the agent’s authority, and how the tortious acts of the agent
either fall within the scope of that authority, or, if unauthorized, were ratified by the
agent’s principals.” Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 109 (Pa. Super.
2002) (quoting Alumni Assoc. v. Sullivan, 535 A.2d 1095, 1100 n.2 (Pa. Super.
1987)), aff'd, 524 Pa. 356, 572 A.2d 1209 (1990). The “burden of establishing the
existence of an agency relationship rests on the party asserting it.” Scott v. Purcell, 415
A.2d 56, 61 n.8 (Pa. 1980). “It is not necessary, however, to furnish direct evidence of
4
the specific authority if it can be reasonably inferred from the circumstances of the
case….” Id. (citing Yezbak v. Croce, 88 A.2d 80, 82 (Pa. 1952)).
Defendant objects to Plaintiffs’ allegations of agency and vicarious liability on the
grounds that the allegations are vague and fail to put Defendant on notice of what
issues he is defending in this suit. The only recent case cited by the Defendants
relating to medical malpractice agency is the case of Yacoub v. Lehigh Valley Medical
Associates, P.C., 805 A.2d 579 (Pa. Super. 2002). Procedurally this case is
significantly different from the case at bar. In Yacoub, the Superior Court was dealing
with the issue of whether a trial court had committed reversible error in precluding a
Plaintiff from introducing evidence that certain radiologists were ostensible agents of
Lehigh Valley Hospital. See Id. at 585. Interestingly, the Superior Court held that the
trial court had abused its discretion in precluding the Plaintiff from establishing an
ostensible agency theory of liability. See Id. at 590. The Superior Court found that this
error was harmless and did affirm the judgment in favor of Lehigh Valley Medical. See
Id. at 590-91. However, on the issue of pleading agency, the case supports the premise
that in assessing whether a particular complaint alleging agency is pled with the
required specificity, the allegation of agency must be read in context with all the other
allegations in the complaint. See Id.
In this case, the Plaintiffs’ Complaint confines its allegations of agency to those
“agents, ostensibleagents, servants, employees,… including nurses and other staff”
under Dr. Durisek’s control. (See Plaintiffs’ Complaint, paragraph 56); Dr. Durisek
labels the Plaintiffs’ agency allegation as “boilerplate.” (Dr. Durisek’s brief in support of
preliminary objections, page 5). She further claims that Plaintiffs’ “failure to set forth a
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factual basis for… allegations of agency severely prejudices moving defendants’ ability
to prepare a proper Answer to Plaintiffs’ Complaint and/or a proper defense in this
matter.” Id. This Court finds such argument to be somewhat paradoxical. No party is in
a better position than Dr. Durisek herself to know the identities of her assistants or
employees and their involvement in Kade Lehman’s diagnostic treatment. Defendant
would clearly be privy to more detailed knowledge than Plaintiffs since little formal
discovery has been conducted. Plaintiffs’ description of Defendant’s agents as “nurses
and other staff” working with Defendant in treating the child is adequate at this time to
put Defendant on notice of Plaintiffs’ theory of liability.
The reasoning given in the opinion of Judge Terrence Nealon in Kroposky v. Luis
DeLaFuente, M.D., et. al., 2011 WL 1131488 (Pa. Com. Pl.), filed on March 11, 2011, in
Lackawanna County, is very compelling. As Judge Nealon points out, if Plaintiffs in
malpractice actions were required to identify in their pleadings each Defendant’s
employee, the employee’s authority and whether the employee’s negligent conduct was
either authorized or ratified by that Defendant, it would undoubtedly result in serial
requests for pre-complaint discovery under Pa.R.C.P. 4003.8. See Id. §c. Such
discovery would be necessary in virtually every case in order to preempt the filing of
preliminary objections by the defense. See Id. The more practical and efficient solution
to this problem is to afford the Plaintiff a finite period of time to conduct discovery on the
agency issue and to either (a) promptly amend the complaint thereafter to identify the
agents involved or (b) have the agency allegations stricken for failure to do so.
Therefore, Plaintiffs will be granted one hundred twenty (120) days within which
to complete their agency discovery and to promptly amend their complaint within thirty
6
(30) days thereafter. Should they fail to do so, their agency allegations against Dr.
Durisek and Quantum will be stricken. This procedure will protect Dr. Durisek from
eleventh hour assertions of agency without resorting to the drastic measure of
prematurely striking agency allegations at the outset of the proceedings.
II. Claim for Negligent Infliction of Emotional Distress
In their second preliminary objection, the Defendants demurrer to the Plaintiffs’
claim for Negligent Infliction of Emotional Distress (hereinafter NIED). Basically they
claim that (1) the child’s parents did not witness firsthand and contemptuously any
negligence of the Defendants or any outrageous act, (2) that they did not know of the
child’s serious and permanent injury until after a second study was performed on
August 31, 2010, and (3) that the Plaintiff parents only allege psychological and
psychiatric injuries, and have not alleged any physical injury as a result of their
observations of the care given to their son.
The Plaintiffs’ allegations in regard to Dr. Durisek and Quantum may be
summarized as follows: (1) that Plaintiffs’ son was born and he had swollen testicles; (2)
that Plaintiff parents were led to believe by the various treating medical personnel that
this was a benign condition which has no serious consequences; (3) that Dr. Durisek
performed an ultrasound diagnostic test but failed to do any testing or evaluation which
would have detected blood flow problems to the testicles; (4) that the child in reality was
suffering from testicular torsion which caused his testicles to die; (5) that Plaintiff
parents observed the failure of Dr. Durisek to perform routine diagnostic tests which
would have revealed the testicular torsion could have been corrected; (6) that had the
testicular torsion been properly diagnosed, the condition could have been treated; (7)
7
that as a result of Dr. Durisek’s failure to diagnose, their son will never have natural
children and will have other accompanying complications which have caused them
serious emotional distress; (8) that the emotional distress has led to their suffering
severe shock, anxiety, depression and injury to their nerves and nervous system;
The standard for reviewing preliminary objections has been stated as follows:
Preliminary objections in the nature of a demurrer test
the legal sufficiency of the complaint. When considering
preliminary objections, all material facts set forth in the
challenged pleadings are admitted as true, as well as all
inferences reasonably deducible therefrom. Preliminary
objections which seek the dismissal of a cause of action
should be sustained only in cases in which it is clear and
free from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief. If any
doubt exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the preliminary
objections.
Hykes v. Hughes, 835 A.2d 382 (Pa. Super. 2003) (citation omitted).
After careful consideration, this Court is again persuaded by the well-reasoned
opinion of Judge Nealon in Kroposky v. Luis DeLaFuente, M.D., et. al., 2011 WL
1131488 (Pa. Com. Pl.). As Judge Nealon notes, Federal and State Courts have
concluded that physicians and healthcare providers may be liable for negligent infliction
of emotional distress under the bystander rule in cases where their treatment involved
negligent omissions. Id. at 10. Defendant’s counsel concedes that claims for NIED
have been “expanded to include observation of a negligent omission.” (Defendant’s
letter brief dated 9/23/11, p. 2). However, they counter that in addition to observing the
negligent omission, the Plaintiff must observe the resulting harm. Obviously the
operative term here is “observe.”
8
A fair reading of Plaintiffs’ Complaint establishes that they were observing the
medical treatment their baby was receiving. They were present at the medical facilities
and in regular contact with the treating physicians and staff. They knew their baby was
being transferred from Holy Spirit to the Hershey Medical Center Neonatal Intensive
Care Unit for surgery which clearly established that the baby’s testicles were necrotic.
Accordingly, they rode an emotional roller coaster from the joy of their son’s birth to the
sad fact that their son would never be a biological parent, that they would not be
biological grandparents, that their son will have continuing medical side effects as a
result of the loss of his testicles that will require additional medical procedures and
treatment throughout his life. As a result, Plaintiff parents claim severe shock, anxiety,
depression and injury to their nerves and nervous system. The legal basis for the
complaint being that all of this could have been avoided with a routine diagnostic test to
evaluate the arterial and venous flow of blood to the testicles. In short, “doppler studies
9
of testes [to] rule out torsion.”
The Defendants would have this Court restrict the definition of “observe” to
actually watching each medical professional as they treated their child. In short, direct
visual observation of every procedure that was performed. This Court does not accept
this extremely restrictive view. The definition of the term “observe” does include to see
or sense, but also includes “to come to realize or know especially through consideration
th
of noted facts.” Merriam-Webster Dictionary at 511 (5 ed. 1997). For the purpose of
considering Defendants’ Preliminary Objections to Plaintiffs’ Complaint, this Court is
convinced that the Plaintiff parents did “observe” a negligent omission by Dr. Durisek
and Quantum.
9
Pl. Compl. ¶ 29, 32.
9
Finally, we address Defendants’ claim that Plaintiff parents have not alleged any
physical injury as a result of their observations of the care given to their son. At this
stage of this civil action, we are of the opinion that Plaintiff parents have adequately
pled that Dr. Durisek and Quantum owed a fiduciary duty to Plaintiff parents to conduct
medically sound and reasonable diagnostic testing on the child. To maintain otherwise
would indicate that diagnostic testing was not even needed in this case.
In Toney v. Chester County Hosp., 961 A.2d 192 (Pa. Super. 2008), a case
which dealt with the issue of negligent diagnostic testing, the Court found that
allegations of severe shock, anxiety and depression are factors that may be
enumerated to show physical harm. The Plaintiffs in this case have enumerated such
factors in their pleading. Additionally, they state that they have suffered injuries to their
nerves and nervous system along with severe psychiatric and psychological injury
which will require treatment into the foreseeable future. The Toney Court found that a
cause of action for negligent infliction of emotional distress existed where emotional
distress resulted from the negligent breach of a contractual or fiduciary duty absent a
physical impact or injury. See Id. at 199. This Court finds this decision to be controlling
in this case.
Interestingly, the Supreme Court has granted allocator in Toney on the precise
issue of “Whether the Superior court erred in finding a cause of action for negligent
infliction of emotional distress exists where emotional distress results from the
negligence breach of a contractual or fiduciary duty, absent a physical impact or injury”
973 A.2d 415, 416 (Pa. 2009). To date, no decision has been rendered. Accordingly,
10
for the reasons stated above, the Defendants’ Request for a Demurrer and/or Motion to
Strike Plaintiffs’ Claim for Negligent Infliction of Emotional Distress is denied.
As the Court in Toney did, we hasten to add that our discussion above
does not address in any manner the ultimate issue of liability. The narration of the
unsettling facts as described in this compliant is necessary for our review of the
preliminary objections but does not create any presumptions of liability as to later stages
of the litigation. Nor does our review reflect any opinion on whether the allegations of
professional negligence will be sustained in later stages with admissible evidence.
Obviously, there are other pre-trial avenues available to the parties to test the legal
sufficiency of the claims following the completion of discovery and the exchange of
expert reports. This decision is limited to determining whether the facts, as alleged,
support a legally cognizable cause of action.
Accordingly, the following Order of Court is entered,
th
AND NOW
, this 9 day of November, 2011, upon consideration of Defendants’
Preliminary Objections, the briefs filed by the parties and after oral argument held on
July 15, 2011,
IT IS HEREBY ORDERED AND DIRECTED
that:
1. With regard to the Defendants’ Preliminary Objections in the Nature of
Demurrer and/or Motion to Strike Plaintiffs’ Vague Allegations of Agency, the Plaintiffs
shall be afforded one hundred twenty (120) days from the date of this Order within
which to conduct discovery on the issue of agency so as to enable the Plaintiffs to
amend their complaint within thirty (30) days thereafter in order to identify the actual or
ostensible agents of Dr. Durisek by name or appropriate description, to set forth the
11
agents’ authority, and to state whether the tortious acts of the agents either fell within
the scope of that authority or were ratified by Dr. Durisek. If the Plaintiffs fail to amend
their complaint within one hundred fifty (150) days of the date of this Order, Dr.
Durisek’s Preliminary Objections in the Nature of Demurrer and/or Motion to Strike
Plaintiffs’ Vague Allegations of Agency will be granted and Plaintiffs’ allegations of
agency with respect to Dr. Durisek will be deemed stricken.
2. Defendants’ Preliminary Objections in the Nature of Demurrer and/or a
Motion to Strike Plaintiffs’ Claim for Negligence Infliction of Emotional Distress (NIED) is
OVERRULED
.
By the Court,
M. L. Ebert, Jr., J.
James F. Mundy, Esquire
527 Linden Street
Scranton, PA 18503
Thomas M. Chairs, Esquire
Aaron S. Jayman, Esquire
Plaza 21, Suite 302
st
425 North 21 Street 920
Camp Hill, PA 17011
Benjamin A. Post, Esquire
Edward J. Stolarski, Jr., Esquire
200 Berwyn Park
Cassatt Road, Suite 102
Berwyn, PA 19312
Andrew M. Foulkrod, Esquire
Darlene K. King, Esquire
400 Market Street
Camp Hill, PA 17011
12
0
NICOLE KNOTT and : IN THE COURT OF COMMON PLEAS OF
KYLE LEHMAN, as Parents and : CUMBERLAND COUNTY, PENNSYLVANIA
Natural Guardians of KADE LEHMAN :
A Minor, and NICOLE KNOTT and :
Kyle Lehman, In Their Own Right, :
PLAINTIFFS :
:
v. :
:
HOLY SPIRIT HEALTH SYSTEM and :
HOLY SPIRIT HOSPITAL and :
YOKE K. TAN, M.D. and :
TAN & GARCIA PEDIATRICS and :
DEBBIE DURISEK, M.D. and :
QUANTUM IMAGING & THERAPEUTIC:
ASSOCIATES, :
DEFENDANTS : NO. 11-1304 CIVIL
IN RE: DEFENDANTS, DEBBIE DURISEK, M.D. AND QUANTUM IMAGING &
THERAPEUTIC ASSOCIATES’ PRELIMINARY OBJECTIONS TO PLAINTIFFS’
COMPLAINT
BEFORE HESS, J. AND EBERT J.
ORDER OF COURT
th
AND NOW
, this 9 day of November, 2011, upon consideration of Defendants’
Preliminary Objections, the briefs filed by the parties and after oral argument held on
July 15, 2011,
IT IS HEREBY ORDERED AND DIRECTED
that:
1. With regard to the Defendants’ Preliminary Objections in the Nature of
Demurrer and/or Motion to Strike Plaintiffs’ Vague Allegations of Agency, the Plaintiffs
shall be afforded one hundred twenty (120) days from the date of this Order within
which to conduct discovery on the issue of agency so as to enable the Plaintiffs to
amend their complaint within thirty (30) days thereafter in order to identify the actual or
ostensible agents of Dr. Durisek by name or appropriate description, to set forth the
1
agents’ authority, and to state whether the tortious acts of the agents either fell within
the scope of that authority or were ratified by Dr. Durisek. If the Plaintiffs fail to amend
their complaint within one hundred fifty (150) days of the date of this Order, Dr.
Durisek’s Preliminary Objections in the Nature of Demurrer and/or Motion to Strike
Plaintiffs’ Vague Allegations of Agency will be granted and Plaintiffs’ allegations of
agency with respect to Dr. Durisek will be deemed stricken.
2. Defendants’ Preliminary Objections in the Nature of Demurrer and/or a
Motion to Strike Plaintiffs’ Claim for Negligence Infliction of Emotional Distress (NIED) is
OVERRULED
.
By the Court,
M. L. Ebert, Jr., J.
James F. Mundy, Esquire
527 Linden Street
Scranton, PA 18503
Thomas M. Chairs, Esquire
Aaron S. Jayman, Esquire
Plaza 21, Suite 302
st
425 North 21 Street 920
Camp Hill, PA 17011
Benjamin A. Post, Esquire
Edward J. Stolarski, Jr., Esquire
200 Berwyn Park
Cassatt Road, Suite 102
Berwyn, PA 19312
Andrew M. Foulkrod, Esquire
Darlene K. King, Esquire
400 Market Street
Camp Hill, PA 17011
2