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SUSAN S. SHEAFFER and STEVEN : IN THE COURT OF COMMON PLEAS OF
SHEAFFER, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v.:
:
BRADLEY LAHET, M.D., :
BLUE MOUNTAIN ANESTHESIA :
ASSOCIATES, P.C., MICHAEL J. :
OPLINGER, M.D., APPALACHIAN :
ORTHOPEDIC CENTER, LTD., :
AND CARLISLE HMA, LLC d/b/a :
CARLISLE REGIONAL MEDICAL :
CENTER, : CASE NO. 11-482 CIVIL
:
Defendants :
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, BRADLEY LAHET, M.D.,
TO PLAINTIFFS’ COMPLAINT
BEFORE GUIDO, J. AND EBERT, J.
ORDER OF COURT
th
AND NOW
, this 17 day of October, 2011, upon consideration of Defendant’s
Preliminary Objections, the briefs filed by the parties and after oral argument held on August 26,
2011,
IT IS HEREBY ORDERED AND DIRECTED
that:
1. Defendant’s Preliminary Objection in the nature of a Motion to Strike Overly Broad
OVERRULED
Claims of Negligence Due to Lack of Specificity is ;
2. Defendant’s Preliminary Objection in the nature of a Motion to Strike/Demurrer as to
OVERRULED
Plaintiffs’ Claims of Recklessness and for Punitive Damages is ;
3. With regard to the Defendant’s Motion to Strike Vague and Unidentified 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 Plaintiff to
amend their complaint within 30 days thereafter in order to identify the actual or ostensible
agents of Dr. Lahet by name or appropriate description, to set forth the agent’s authority, and to
state whether the tortious acts of the agent either fell within the scope of that authority or were
ratified by Dr. Lahet. If the Plaintiff fails to amend their complaint within 150 days of the date
of this Order, Dr. Lahet’s Motion to Strike Vague and Unidentified Allegations of Agency will
be granted and Plaintiffs’ allegations of agency with respect to Dr. Lahet will be deemed
stricken.
By the Court,
M. L. Ebert, Jr., J.
Edmund “Tad” Berger, Esquire
Craig A. Stone, Esquire
Evan Black, Esquire
Michael Pipa, Esquire
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SUSAN S. SHEAFFER and STEVEN : IN THE COURT OF COMMON PLEAS OF
SHEAFFER, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. :
:
BRADLEY LAHET, M.D., :
BLUE MOUNTAIN ANESTHESIA :
ASSOCIATES, P.C., MICHAEL J. :
OPLINGER, M.D., APPALACHIAN :
ORTHOPEDIC CENTER, LTD., :
AND CARLISLE HMA, LLC d/b/a :
CARLISLE REGIONAL MEDICAL :
CENTER, : CASE NO. 11-482 CIVIL
:
Defendants :
IN RE: PETITION OF PRELIMINARY OBJECTIONS OF DEFENDANT, BRADLEY
LAHET, M.D., TO PLAINTIFFS’ COMPLAINT
BEFORE GUIDO, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Ebert, Jr., J., October 17, 2011 -
PROCEDURAL HISTORY
Plaintiffs Susan Sheaffer and Steven Sheaffer (“Plaintiffs”) commenced this civil action
by filing a Writ of Summons on January 17, 2011. Plaintiffs filed a complaint on March 29, 2011
against several Defendants including Bradley Lahet, M.D. Plaintiffs allege that Defendants
negligently performed a femoral nerve block on Mrs. Sheaffer and failed to obtain informed
consent from her, for which Defendants are allegedly liable for punitive damages.
Defendant Bradley Lahet, M.D. (“Defendant”) filed Preliminary Objections to Plaintiffs’
Complaint on May 23, 2011. The parties filed briefs regarding the Preliminary Objections, and
oral argument was heard on August 27, 2011.
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STATEMENT OF FACTS
In October of 2008, Mrs. Sheaffer was diagnosed with end-stage degenerative joint
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disease in her left knee. In January of 2009, Mrs. Sheaffer consulted Dr. Oplinger regarding her
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diagnosis, and determined that she would have a total knee replacement operation. On January
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20, 2009, Mrs. Sheaffer executed Dr. Oplinger’s consent form for the operation, which allegedly
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did not identify the risks associated with anesthesia or a femoral nerve block for the operation.
Ms. Sheaffer never signed a consent form which contained an explanation of the risks of a
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femoral nerve block. She claims that the risks of the procedure were never explained to her.
Mrs. Sheaffer indicated to Dr. Lahet (“Defendant”) that she preferred not having a femoral nerve
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block done. Despite Mrs. Sheaffer’s objection to using a femoral nerve block, Dr. Oplinger
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indicated he preferred using the procedure. Mrs. Sheaffer continued to object again, but finally
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agreed that she would “go along” with Dr. Oplinger’s recommendation. The operation was
conducted on February 2, 2009, and a femoral nerve block was performed on Plaintiff by Dr.
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Lahet. As a result of the femoral nerve block performed by Defendant, Mrs. Sheaffer claims
she developed femoral nerve palsy in her left leg, resulting in significant impairment to her left
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leg. Mrs. Sheaffer began physical therapy following the operation, but has had little success in
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recovering the full use of her left leg.
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Plaintiffs’ Complaint, filed March 29, 2011, ¶9 [hereinafter Pls.’ Compl., ¶__].
2
Pls.’ Compl., ¶10.
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Pls.’ Compl., ¶11
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Pls.’ Compl., ¶16
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Pls.’ Compl., ¶16, 17.
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Pls.’ Compl., ¶13
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Pls.’ Compl., ¶14
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Pls.’ Compl., ¶15.
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Pls.’ Compl., ¶18.
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Pls.’ Compl., ¶19.
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Pls.’ Compl., ¶¶23-39.
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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 & Publ'g Co., 762 A.2d 758, 761 (Pa. Super. 2000)).
The Defendant’s preliminary objections raise the following issues:
I. Motion to Strike Vague and Unidentified Allegations of
Agency contained in Paragraphs 8, 65, 65(e) and 65 (i) of
the Plaintiffs’ Complaint.
II. A Motion to Strike Overly Broad Claims of Negligence
Due to Lack of Specificity Contained in Paragraphs 63, 65,
65(a), (d) through (i) and 66 of the Plaintiffs’ Complaint.
III. Motion to Strike/Demurrer as to Plaintiffs’ Complaint
Claims of Recklessness and for Punitive Damages Contained
in Paragraph 56 and the “Wherefore Clause” containing
a Demand for Punitive Damages in Plaintiff’s Complaint
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.”
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Scott v. Purcell, 415 A.2d 56, 61 n.8 (Pa. 1980). “It is not necessary, however, to furnish direct
evidence of 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. Defendant relies on Rex v. Wellspan Health, where the Adams County
Court of Common Pleas held a plaintiff’s allegations against a defendant and other “agents,
servants, and employees” was insufficient to properly plead agency. 8 Pa. D. & C.5th 573, 575
(Pa. Ct. Com. Pl. Adams Cnty. 2009). Similarly to the Plaintiffs here, the plaintiff in Rex, after
suffering an injury while horseback riding, sued her treating doctor and other medical personnel
on an agency theory without naming those agents in the complaint. The plaintiff described the
hospital personnel as “nurses, or other personnel treating Ms. Rex.” Id. at 575. The Rex court
held that the plaintiff’s complaint inadequately identified the agents for whom the defendant,
Gettysburg Hospital, was vicariously liable, and granted the defendant’s preliminary objection to
the plaintiff’s allegation of agency with leave to amend. Id. at 576.
Rex v. Wellspan Health was a very brief four page opinion. This Court is aware that
Wellspan Health is a large organization which provides healthcare services to the greater Adams
and York County region. The Rex case addressed preliminary objections specifically aimed at
agency allegations against Gettysburg Hospital. Obviously, Gettysburg Hospital employs a large
number of “agents, servants, and employees.” In this case, the Plaintiff’s complaint confines her
allegations of agency to those “agents, ostensibleagents, servants and/or other employees” of
only Defendant Lahet in paragraphs 65 e. and i. Dr. Lahet’s claim that the “vague references to
agents, employees and servants of the objecting Defendant do not permit him to defend against
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the allegations” (Lahet’s brief in support of preliminary objections, page 7), presents a somewhat
paradoxical argument. This Court finds 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, to be more compelling. No party is in a better
position than Dr. Lahet himself to know the identities of his assistants or employees and their
involvement in Mrs. Sheaffer’s operation. She was unconscious during the procedure, and
Defendant would clearly be privy to more detailed knowledge than Plaintiffs since no formal
discovery has been conducted. Plaintiffs’ description of Defendant’s agents as the medical
personnel working with Defendant in treating Mrs. Sheaffer is adequate at this time to put
Defendant on notice of Plaintiffs’ theory of liability.
As Judge Nealon pointed 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. Such
discovery would be necessary in virtually every case in order to preempt the filing of preliminary
objections by the defense. 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 120 days within which to complete their agency
discovery and to promptly amend their complaint within 30 days thereafter. Should they fail to
do so, their agency allegations against Dr. Lahet will be stricken. This procedure will protect Dr.
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Lahet from eleventh hour assertions of agency without resorting to the drastic measure of
prematurely striking agency allegations at the outset of the proceedings.
II. Overly Broad Claims of Negligence
Defendant further objects that Plaintiffs’ claims of negligence are overly broad under
Pa.R.C.P. 1019(a) and asks this Court to strike those claims. Rule 1019(a) states, “[t]he material
facts on which a cause of action or defense is based shall be stated in a concise and summary
form.” Pa.R.C.P. 1019(a). “The purpose of the rule is to require the pleader to disclose the
‘material facts’ sufficient to enable the adverse party to prepare his case.” Landau v. Western
Pennsylvania Nat'l Bank, 282 A.2d 335, 339 (Pa. 1971) (citing Smith v. Allegheny County, 155
A.2d 615 (Pa. 1959)).
Defendant relies on authority from other Pennsylvania counties to persuade this Court
that Plaintiffs’ allegations of negligence are overbroad and thereby warrant dismissal. In those
cases, the courts repeatedly held that vague allegations with sparse connections between
allegations and facts are problematic. In the case sub judice, Plaintiffs have pled sufficient
material facts and allegations to put Defendant on notice of Plaintiffs’ negligence theory.
Plaintiffs have supplied the dates of events, injury information, and the surrounding
circumstances leading up to, during and after the injury. Given the lack of formal discovery,
which will yield more substantial information, the Plaintiffs have sufficiently pled their claim of
negligence to satisfy Pa.R.C.P. 1019(a).
III . Claim for Punitive Damages
Defendant lastly objects to Plaintiffs’ claim for punitive damages. Pennsylvania law
"makes it clear that punitive damages are an 'extreme remedy' available in only the most
exceptional matters." Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (internal citation
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omitted).Defendant properly notes that Pennsylvania's Medical Care Availability and Reduction
of Error Act governs an award of punitive damages in a claim against a healthcare provider. Title
40 P.S. § 1303.505(a) specifically provides that:
(a) AWARD.-- Punitive damages may be awarded for conduct that is the result
of the health care provider's willful or wanton conduct or reckless indifference
to the rights of others. In assessing punitive damages, the trier of fact can
properly consider the character of the health care provider's act, the nature and
extent of the harm to the patient that the health care provider caused or intended
to cause and the wealth of the health care provider.
40 P.S. § 1303.505(a). As used in the statute, recklessness means “a conscious disregard for a
known risk of harm.” Stewart v. GGNSC-Canonsburg, L.P., 90 Washington County Reports, No.
33, p. 13-20 (2010), 2010 Pa. Dist. & Cnty. Dec. LEXIS 155, (citing Stroud v. Abington
Memorial Hospital, 546 F. Supp. 2d 238, 257 (E D. Pa. 2008) (applying 40 P.S. § 1303.505(a))),
Hutchinson ex. Rel. Hutchison v. Luddy, 870 A.2d 766, (Pa. 2005). Punitive damages are,
therefore, available “only if the evidence demonstrates that ‘(1) a defendant had a subjective
appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed
to act, as the case may be, in conscious disregard of that risk.’” Id. at 771-72.
Plaintiffs have pled sufficient facts for their claim for punitive damages to survive
preliminary objections. Plaintiffs have alleged that Defendant, as a medical professional, had a
subjective appreciation of the risk a femoral nerve block posed to Mrs. Sheaffer, though
Defendant never informed Mrs. Sheaffer of the risk. Furthermore, Plaintiffs sufficiently pled that
Defendant, along with a colleague, acted in conscious disregard of that risk when they ignored
Mrs. Sheaffer’s initial objections to a femoral nerve block and administered the nerve block
anyway. At this pre-discovery stage of the proceedings, Plaintiffs have sufficiently pled their
claim for punitive damages and have presented a plausible theory for those damages. Defendants
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will still be able to challenge the claim for punitive damages at a later time after formal
discovery has been completed.
Accordingly the following order is entered:
th
AND NOW
, this 17 day of October, 2011, upon consideration of Defendant’s
Preliminary Objections, the briefs filed by the parties and after oral argument held on August 26,
2011,
IT IS HEREBY ORDERED AND DIRECTED
that:
1. Defendant’s Preliminary Objection in the nature of a Motion to Strike Overly Broad
OVERRULED
Claims of Negligence Due to Lack of Specificity is ;
2. Defendant’s Preliminary Objection in the nature of a Motion to Strike/Demurrer as to
OVERRULED
Plaintiffs’ Claims of Recklessness and for Punitive Damages is ;
3. With regard to the Defendant’s Motion to Strike Vague and Unidentified 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 Plaintiff to
amend their complaint within 30 days thereafter in order to identify the actual or ostensible
agents of Dr. Lahet by name or appropriate description, to set forth the agent’s authority, and to
state whether the tortious acts of the agent either fell within the scope of that authority or were
ratified by Dr. Lahet. If the Plaintiff fails to amend their complaint within 150 days of the date
of this Order, Dr. Lahet’s Motion to Strike Vague and Unidentified Allegations of Agency will
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be granted and Plaintiffs’ allegations of agency with respect to Dr. Lahet will be deemed
stricken.
By the Court,
M. L. Ebert, Jr., J.
Edmund “Tad” Berger, Esquire
2104 Market Street
Camp Hill, PA 17011
Craig A. Stone, Esquire
4200 Crums Mill Road, Suite B
Harrisburg, PA 17112
Evan Black, Esquire
th
305 North Front Street, 6 Floor
P. O. Box 999
Harrisburg, PA 17108
Michael Pipa, Esquire
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17 North Second Street, 16 Floor
Harrisburg, PA 17101
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