HomeMy WebLinkAbout01-3775 CIVILCRAIG SHIRK,
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
P E N N SYLVAN IA, D E PARTM E NT
OF CORRECTIONS,
DEFENDANT
01-3775 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANT TO PLAINTIFF'S THIRD
AMENDED COMPLAINT
BEFORE BAYLEY, J. AND GUIDO, J.
OPINION AND ORDER OF COURT
Bayley, J., October 31, 2001:--
Plaintiff, Craig Shirk, filed a third amended complaint against defendant,
Commonwealth of Pennsylvania, Department of Corrections. The complaint contains a
count alleging medical negligence against the Commonwealth resulting from the acts of
a doctor and two nurses on June 17, 1997, who provided plaintiff, while an inmate,
medical treatment at SCI Huntingdon. Defendant has demurred to the count of
medical negligence on the basis of sovereign immunity. When bringing an action
against the Commonwealth, plaintiff must establish a common law or statutory cause of
action, and that the cause of action falls within an exception to sovereign immunity
enumerated in the Judicial Code at 42 Pa.C.S. Section 8522. Plaintiff has a common
law action for medical negligence that he maintains is authorized under 42 Pa.C.S.
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Section 8522, which provides:
(b) Act which impose liability. The following act by a Commonwealth
party may result in the imposition of liability on the Commonwealth and
the defense of sovereign immunity shall not be raised to claims for
damages caused by:
(2) Medical-professional liability. Acts of health care employees of
Commonwealth agency medical facilities or institutions or by a
Commonwealth party who is a doctor, dentist, nurse or related health care
personnel.
A prison infirmary is a medical facility within the meaning of 42 Pa.C.S. Section
8522(b)(2). Wareharn v. Jeffes, 129 Pa. Commw. 124 (1989). Defendant, citing
Maser v. Heistand, 681 A.2d 1322 (Pa. 1996), maintains that because plaintiff has not
sued the health care personnel individually, who provided him medical treatment at SCI
Huntingdon, he cannot maintain his count of medical negligence against the
Commonwealth alone. Plaintiff's count is titled "Medical Malpractice (Respondeat
Superior)." Plaintiff avers in his complaint that the medical personnel at SCI
Huntingdon, who negligently provided him treatment, were Doctor Farrokh Mohadjerin,
and nurses R. Miller and M. Warner. In Maser, the Supreme Court of Pennsylvania
held that a common law action for corporate liability against the Commonwealth does
not fall within the exception to sovereign immunity in 42 Pa.C.S. Section 8522(b)(2).
However, in doing so, the court noted that cause of action for corporate liability is
independent of a cause of action for negligence of a medical facilities' employees or
ostensible agents. The court stated:
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While Commonwealth medical facilities are not immune from
suit based on the negligence of their health care employees
(respondeat superior), 42 Pa.C.S. § 8522(b)(2) does not provide for a
waiver of immunity for the facilities themselves. (Emphasis added.)
Accordingly, the prison infirmity at SCI Huntingdon is a medical facility, and the
Commonwealth may be liable for the acts of its health care employees or agents at that
facility. This is not a claim for independent, corporate liability against the
Commonwealth. There is no requirement that plaintiff join defendants' employees or
agents as individual defendants.
AND NOW, this
ORDER OF COURT
day of October, 2001, the preliminary
objection of defendant to the count in plaintiff's complaint alleging medical negligence,
IS DISMISSED.
By the Court,
David L. Glassman, Esquire
For Plaintiff
Gerhard Schwaibold, Esquire
For Defendant
:saa
Edgar B. Bayley, J.
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