HomeMy WebLinkAbout93-0083 CivilJEFREY L. McALISTER and
KAREN McALISTER, his wife,
Plaintiffs
V.
FRANK S. BRYAN, M.D.;
FRANK S. BRYAN, M.D., LTD.;
DONALD K. ROEDER, M.D.;
BELVEDERE MEDICAL CORPORATION;
ALLAN J. MIRA, M.D., ALLAN
J. MIRA, M.D., P.C., and
CARLISLE HOSPITAL,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 83 CIVIL 1993
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY and M 101 JJ.
ORDER OF COURT
n
AND NOW, this22day of June, 1993, upon careful consideration of Defendants'
Preliminary Objections to Plaintiffs' Complaint, as well as the oral arguments and
briefs submitted on the matter, it is ordered as follows:
1. Defendant Carlisle Hospital's demurrer to the negligent infliction of
emotional distress claim in Count XIV of Plaintiffs' Complaint is GRANTED.
2. Defendant Donald K. Roeder's and Defendant Belvedere Medical
Corporation's Motion to Strike Items a, c, e, g, 1, j, and k of paragraphs 122 and 126
of Plaintiffs' Complaint, or for a more speck pleading, is DENIED.
Defendants are granted twenty days to file an Answer to the Complaint.
BY THE COURT,
J esley Oler, Jr J.
Nijole C. Olson, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Michael W. McGuckin, Esq.
1850 William Penn Way
Suite 209, P.O. Box 10696
Lancaster, PA 17605-0696
Attorney for Frank Bryan, M.D. and
Frank Bryan, M.D., Ltd.
Evan Black, Esq.
Kristen L. Beech, Esq.
101 North Front Street
Harrisburg, PA 17101
Attorney for Defendants Roeder
and Belvedere Medical Corp.
Joseph P. Hafer, Esq.
Margaret A. Sheaffer, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Allan J. Mira, M.D. and
Allan J. Mira, P.C.
Francis E. Marshall, Jr., Esq.
Joseph A. Ricci, Esq.
1323 North Front Street
Harrisburg, PA 17102
Attorneys for Carlisle Hospital
:rc
JEFREY L. McALISTER and IN THE COURT OF COMMON PLEAS OF
KAREN McALISTER'his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
FRANK S. BRYAN, M.D.;
FRANK S. BRYAN, M.D., LTD.;
DONALD K. ROEDER, M.D.; CIVIL ACTION - LAW
BELVEDERE MEDICAL CORPORATION;
ALLAN J. MIRA, M.D., ALLAN
J. MIRA, M.D., P.C., and
CARLISLE HOSPITAL,
Defendants NO. 83 CIVIL 1993
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY and OLER JJ
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case are a preliminary objection in the nature of a
demurrer filed by Carlisle Hospital (Defendant Hospital) and a preliminary objection
in the form of a motion to strike, or in the alternative a motion for a more specific
pleading, filed by Donald K. Roeder, M.D., and the Belvedere Medical Corporation
(Defendant Doctor and Defendant Corporation, respectively). The preliminary
objections are in response to a Complaint alleging medical malpractice filed by Jefrey
L. McAlister and Karen McAlister, husband and wife (Plaintiffs). For the reasons set
forth in this Opinion, Defendant Hospital's demurrer is granted, and Defendant
Doctor's and Defendant Corporation's motion to strike, or for a more specific pleading,
is denied.
Statement of facts. The facts, as set forth in Plaintiffs' Complaint, may be
summarized as follows:
No. 83 CIVIL 1993
Plaintiffs are husband and wife residing in Carlisle, Cumberland County,
Pennsylvania.' Defendant Hospital is a corporate medical institution with offices and
facilities in Carlisle, Cumberland County, Pennsylvania.' Defendant Doctor is an
individual who is licensed to practice medicine in Pennsylvania and who was engaged
in the practice of vascular surgery in Carlisle, Cumberland County, Pennsylvania, in
1991.3 Defendant Corporation is a professional medical corporation with medical
offices and facilities also located in Carlisle, Cumberland County, Pennsylvania."
On July 23, 1991, following a motorcycle accident, Plaintiff -Husband was
brought to Defendant Hospital's emergency room with an open fracture of the left
tibia.' At that time, Dr. Frank S. Bryan noted that Plaintiff -Husband had sensation
in his left foot and could move the toes on his left foot.' Additionally, X-rays taken
at that time indicated that Plaintiff -Husband had sustained a "comminuted fracture
involving the proximal tibial metaphysis with multiple fracture lines extending into the
1 Plaintiffs' Complaint, paragraph 1.
' Plaintiffs' Complaint, paragraph 8.
3 Plaintiffs' Complaint, paragraph 4.
" Plaintiffs' Complaint, paragraph 5. Plaintiffs have brought suit against four other
defendants; however, for purposes of this Opinion, the allegations against them will not be
considered in depth here.
s Plaintiffs' Complaint, paragraph 16.
s Plaintiffs' Complaint, paragraph 19.
2
No. 83 CIVIL 1993
articular surface."'
In light of the condition indicated in the X-rays, Dr. Bryan recommended that
Plaintiff -Husband undergo "an open reduction and internal fixation of the left tibia,
along with [a] fasciotomy and external fixator application."' Dr. Bryan advised
Plaintiffs that this procedure was necessary and would reduce the chances of
developing circulation problems.' "At no time did [Dr.] Bryan ever inform [Plaintiffs]
of the risks, alternatives and consequences of the intended open reduction surgery"-`
and he "minimized the risks and consequences of the [procedure]."11
On July 23, 1991, Dr. Bryan performed the open reduction surgery upon
Plaintiff-Husband.12 While doing so, Dr. Bryan "lacerated [Plaintiff -Husband's] left
distal popliteal artery";13 Dr. Bryan "failed to document this [laceration]."14 "At no
time during [the surgery] did [Dr.] Bryan seek a consultation with a vascular
' Plaintiffs'
Complaint, paragraph 20.
s Plaintiffs'
Complaint, paragraph 21.
9 Plaintiffs'
Complaint, paragraph 22.
10 Plaintiffs'
Complaint, paragraph 23.
11 Plaintiffs'
Complaint, paragraph 24.
12 Plaintiffs'
Complaint, paragraph 26.
13 Plaintiffs'
Complaint, paragraph 29.
14 Plaintiffs'
Complaint, paragraph 30.
3
No. 83 CIVIL 1993
specialist" regarding the lacerated artery."
On July 24, 1991, the first postoperative day, nurses' notes indicated that
Plaintiff -Husband complained about his leg being cold and numb, and that he could
not move the toes on his left foot.18 On Plaintiff -Husband's second postoperative day,
the nurses' notes again indicated the same coldness and numbness, as well as Plaintiff -
Husband's complaints of throbbing and a blue discoloration of his left leg.17 Said
symptoms persisted and increased for the next several days, during which time
Plaintiff -Husband was receiving increased dosages of Demerol which had no effect in
alleviating his pain."
On July 27, 1991, Plaintiff -Wife visited her husband in the hospital and found
him "crying and hysterical with pain and begging her to help him.i19 When Plaintiff -
Wife requested help for her husband, she was informed that he was not due to receive
any more pain medication,20 and that the pain was part of the healing process."
On July 29, 1991, Plaintiff -Husband's sixth postoperative day, nurses' notes
15 Plaintiffs'
Complaint, paragraph 31.
is Plaintiffs'
Complaint, paragraphs 37, 38.
17 Plaintiffs'
Complaint, paragraphs 39-41.
" Plaintiffs'
Complaint, paragraphs 43-55.
19 Plaintiffs'
Complaint, paragraph 56.
z° Plaintiffs'
Complaint, paragraph 58.
zl Plaintiffs'
Complaint, paragraphs 62-63.
4
No. 83 CIVIL 1993
indicated that Plaintiff -Husband's foot was "cold, ecchymotic and cyanotic," and that
he could not move his toes.22 At this time, Plaintiff -Husband was "screaming with
pain,i23 and the medication given to him had little or no effect in alleviating his
pain. 24
On July 30, 1991, Plaintiff -Husband was "noted to be `crying' from the pain in
his lower left leg.r25 Also on this day, nurses' notes "documented an anticipated
discharge despite the continued presence of unrelenting left leg pain,i28 and after
Plaintiff -Husband "was medicated for pain several times, ... discharge orders were
written by [Dr.] Bryan.t27
"While at home [Plaintiff -Husband] continued to experience excruciating pain
in his left leg and the pain medication prescribed by [Dr.] Bryan ... gave him no
relief.i28 Over the next few days, Plaintiff -Husband's leg pain became "intolerable,""
and because Plaintiff -Wife "could no longer stand to see her husband agonizing in such
22 Plaintiffs'
Complaint, paragraph 68.
23 Plaintiffs'
Complaint, paragraph 69.
24 Plaintiffs'
Complaint, paragraph 70.
25 Plaintiffs'
Complaint, paragraph 71.
' Plaintiffs'
Complaint, paragraph 72.
27 Plaintiffs'
Complaint, paragraph 73.
Plaintiffs'
Complaint, paragraph 78.
Plaintiffs'
Complaint, paragraph 79.
5
No. 83 CIVIL 1993
excruciating pain,11S0 she took him to the emergency A
g cY room on August 4, 1991.31
When Plaintiff -Husband was in the emergency room, his full leg cast was
removed to reveal that his left foot was black in discoloration.32 At this time,
Plaintiff -Husband was diagnosed as having gangrene of his left foot secondary to a
laceration of the popliteal artery.33 Defendant Doctor was contacted at this time, and
he ordered an arteriogram to assess Plaintiff -Husband's circulation.34
An arteriogram was administered on August 4, 1991, and "revealed complete
obstruction at the proximal portion of the popliteal artery.i" Defendant Doctor
informed Plaintiff -Wife that there was no need for immediate surgery.38 On August
61 1991, two days after Plaintiff -Husband's admission into the emergency room,
Defendant Doctor performed popliteal bypass surgery."
These efforts to reestablish circulation in Plaintiff -Husband's leg failed,38 and
30 Plaintiffs'
Complaint, paragraph 81.
31 Plaintiffs'
Complaint, paragraph 82.
32 Plaintiffs'
Complaint, paragraph 85.
33 Plaintiffs'
Complaint, paragraph 86.
34 Plaintiffs'
Complaint, paragraphs 88-89.
35 Plaintiffs'
Complaint, paragraph 90.
36 Plaintiffs'
Complaint, paragraphs 92-93.
37 Plaintiffs'
Complaint, paragraph 98.
38 Plaintiffs'
Complaint, paragraph 99.
M
No. 83 CIVIL 1993
on August 12, 1991, Defendant Doctor performed a below the knee -amputation of
Plaintiff -Husband's left leg.39 Subsequently, on August 21, 1991, Defendant Doctor
was required to perform an above the knee amputation on Plaintiff-Husband.40
As a result of the aforementioned events, Plaintiff -Husband "has suffered a
permanent, severe, disabling and disfiguring injury." 41 Moreover, he "will continue
to suffer residual problems for the remainder of his life."" Furthermore, Plaintiff -
Wife "has in the past and will in the future assume responsibility for the considerable
medical and related expenses incurred" in dealing with her husband's injuries.43
Plaintiff -Wife has also suffered "a loss of her husband's services, companionship,
guidance, society, and consortium.""
In Count III of Plaintiffs' Complaint, Plaintiffs aver that Defendant Doctor is
"liable to the Plaintiffs for injuries and damages ... which were directly and proximately
caused by his negligence in:
a. failing to properly examine and evaluate Mr. McAlister's
left leg;
39 Plaintiffs'
Complaint, paragraph 100.
4o Plaintiffs'
Complaint, paragraph 103.
41 Plaintiffs'
Complaint, paragraph 105.
42 Plaintiffs'
Complaint, paragraph 107.
43 Plaintiffs'
Complaint, paragraph 113.
44 Plaintiffs'
Complaint, paragraph 114.
7
No. 83 CIVIL 1993
b. failing to minimize the risk of severe and progressive
tissue necrosis and death;
C. failing to properly monitor and assess Jefrey's vascular
circulation;
d. failing to apprehend the significance of Mr. McAlister's
progressive medical deterioration including his persistent
leg pain, inability to move the toes on his left foot,
numbness and cyanotic discoloration of his toes since his
July 23, 1991 hospitalization;
e. inappropriately delaying Jefrey's vascular repair surgery
thereby jeopardizing the success of a ... below the knee
amputation;
f. failing to recognize the need for immediate surgical
intervention on Jefrey McAlister on August 4, 1991;
g. failing to perform appropriate surgery on Jefrey
McAlister in a timely fashion;
h. failing to perform [D]oppler studies properly;
i. failing to properly respond to medical evidence diagnostic
for arterial occlusion[;]
j. failing to comply with the proper medical procedure for
a differential diagnosis; and
k. delaying proper treatment of Jefrey's condition which
ultimately led to the loss of his left leg.'
Additionally, in Count IV of Plaintiffs' Complaint, Plaintiffs also aver that
Defendant Corporation is liable to Plaintiffs for injuries and damages because of its
45 Plaintiffs' Complaint, paragraph 122.
No. 83 CIVIL 1993
negligence in:
a. failing to properly examine and evaluate Mr. McAlister's
left leg;
b. failing to minimize the risk of severe and progressive
tissue necrosis and death;
c. failing to properly monitor and assess Jefrey's vascular
circulation;
d. failing to apprehend the significance of Mr. McAlister's
progressive medical deterioration including his persistent
leg pain, inability to move the toes on his left foot,
numbness and cyanotic discoloration of his toes since his
July 23, 1991 hospitalization;
e. inappropriately delaying Jefrey's vascular repair surgery
thereby jeopardizing the success of a ... below the knee
amputation;
f. failing to recognize the need for immediate surgical
intervention on Jefrey McAlister on August 4, 1991;
g. failing to perform appropriate surgery on Jefrey
McAlister in a timely fashion;
h. failing to perform [D]oppler studies properly;
i. failing to properly respond to medical evidence diagnostic
for arterial occlusion;
j. failing to comply with the proper medical procedure for
a differential diagnosis; and
k. delaying proper treatment of Jefrey's condition which
ultimately led to the loss of his left leg.48
46 Plaintiffs' Complaint, paragraph 126.
0
No. 83 CIVIL 1993
Furthermore, in Count XIV of Plaintiffs' Complaint, Plaintiff -Wife is seeking
judgment against Defendant Hospital, contending that, because of the injuries
sustained by her husband, she "has suffered and will continue to suffer humiliation,
severe mental and emotional distress and anguish, anxiety and interference with her
marital relationship. 1147
Presently, Defendant Hospital has filed a preliminary objection in the nature of
a demurrer, contending that Plaintiff- Wife "has failed to state a claim for negligent
infliction of emotional distress."48 More specifically, Defendant Hospital contends that
Plaintiff -Wife "has failed to plead the existence of physical manifestations of her alleged
emotional distress, 1,40 and that Plaintiff -Wife "has failed to plead the contemporaneous
sensory observation of a discrete traumatic event allegedly causing her emotional
distress." b0 Consequently, Defendant Hospital is seeking dismissal of Plaintiff -Wife's
claim for negligent infliction of emotional distress contained in Count XIV of Plaintiffs'
Complaint.
Additionally, Defendant Doctor and Defendant Corporation have jointly filed a
preliminary objection to Counts III and IV of Plaintiffs' Complaint in the form of a
47 Plaintiffs' Complaint, paragraph 174.
48 Defendant Hospital's Preliminary Objection, paragraph 6.
49 Defendant Hospital's Preliminary Objection, paragraph 4.
'50 Defendant Hospital's Preliminary Objection, paragraph 5.
10
No. 83 CIVIL 1993
motion to strike, or, in the alternative, a motion fora more specific pleading.
Defendant Doctor and Defendant Corporation are objecting to the use of such words
as "proper," "properly," "inappropriately," and "appropriate" in paragraphs 122 and 126
Of Plaintiffs' Complaint, because the use of such words "fail[s] to plead with sufficient
specificity to allow Defendants to prepare a defense. "51
DEFENDANT HOSPITAL'S PRELIMINARY OBJECTION IN THE
NATURE OF A DEMURRER
Statement of the law. It is well settled in Pennsylvania that "[t]he question
presented by a demurrer is whether, on the facts averred, the law says with certainty
that no recovery is possible, and where a doubt exists as to whether a demurrer should
be sustained, this doubt should be resolved in favor of overruling it." Scarpitti v.
Weborg, 530 Pa. 366, 369, 609 A.2d 147, 148-49 (1992). In considering this question,
the court must keep in mind that "a demurrer admits every well -pleaded fact and all
inferences reasonably deducible therefrom." Rutherford v. Presbyterian -University
Hospital, 417 Pa. Super. 316, 321-22, 612 A.2d 500, 502 (1992). Moreover, "a demurrer
is not to be sustained and the complaint dismissed unless the law says with certainty
that no recovery is possible." Cianfrani v. Commonwealth of Pennsylvania, State
Employees' Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984).
The Pennsylvania Supreme Court has held that, in order for an individual to
s' Defendant Doctor's and Defendant Corporation's Preliminary Objection, paragraphs 5-6.
11
No. 83 CIVIL 1993
recover under a claim for negligent infliction of emotional distress, the injuries
sustained by that individual must have been reasonably foreseeable to the tortfeasor.
Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). In so holding, the Court has set forth
the following three questions which must be answered affirmatively in order for the
injuries to be considered reasonably foreseeable:
(1) Whether plaintiff was located near the scene of the
accident[,] as contrasted with one who was a distance away
from it. (2) Whether the shock resulted from a direct
emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted
with learning of the accident from others after its
occurrence. (3) Whether plaintiff and the victim were closely
related, as contrasted with an absence of any relationship or
the presence of only a distant relationship.
Sinn v. Burd, 486 Pa. 146, 170-71, 404 A.2d 672, 685 (1979), quoting Dillon v. Legg,
69 Cal. Rptr. 72, 80, 441 P.2d 912, 920 (1968).
In a negligent infliction of emotional distress case, "[t]he gravamen of the
observance requirement is clearly that the plaintiff ... must have observed the
traumatic infliction of injury on his or her close relative at the hands of the
defendant." 52 Moreover, "a cause of action will not he for emotional distress
negligently caused to a bystander, unless the bystander personally observes an
identifiable traumatic incident." Cathcart v. Keene Industrial Insulation, 324 Pa.
Super. 123, 150, 471 A.2d 493, 507 (1984).
sa
(1991). Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 104, 597 A.2d 671, 692
12
No. 83 CIVIL 1993
The Superior Court of Pennsylvania has recently addressed the requirement
of a discrete and identifiable traumatic event in Bloom v. DuBois Regional Medical
Center, 409 Pa. Super. 83, 597 A.2d 671 (1991). In that case, the court held that an
allegation that psychiatrists negligently failed to provide treatment to the plaintiff's
wife was not sufficient to support a claim for negligent infliction of emotional distress
arising from the plaintiffs observance of his wife after her suicide attempt. Since the
plaintiff "did not ... observe any traumatic infliction of injury on his wife at the hands
of the defendants," and since "[t]he alleged negligence of defendants [was] an omission
and involved no direct and traumatic infliction of injury" on plaintiffs wife, the court
held that the plaintiff did not have a cause of action for negligent infliction of
emotional distress. Id. at 105, 597 A.2d at 683.53
In their brief, 54 Plaintiffs cite to a recent Superior Court case in which it was
held that the plaintiff s complaint had stated a cause of action for negligent infliction
of emotional distress where the complaint alleged that the plaintiff had observed the
defendant's omission to treat her mother, and that because of this omission plaintiffs
mother had died of a heart attack while with the plaintiff. Love v. Cramer, 414 Pa.
' See also Tacet v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986) (holding that mother's
complaint alleging failure to diagnose son's fat embolism did not allege a "discrete and
identifiable traumatic event"); Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471
A.2d 493 (1984) (holding that observance of husband's onset of disease from exposure to
asbestos did not support wife's negligent infliction of emotional distress claim).
54 Plaintiffs' Brief, at 8-11.
13
No. 83 CIVIL 1993
Super. 231, 606 A.2d 1175 (1992). In permitting the case to proceed, the Superior
Court noted that "[t]his [was] not the simple situation wherein the plaintiff did not
observe the traumatic event, but nevertheless sought to recover for emotional distress.
Rather appellant witnessed the traumatic event, and the earlier negligence of the
doctor." Id. at 237, 606 A.2d at 1178 (emphasis added).
Application of law to facts. Based upon the allegations set forth in Plaintiffs'
Complaint, we are of the opinion that Plaintiffs have failed to state a cause of action
on the part of Plaintiff -Wife for negligent infliction of emotional distress. Although
the Complaint does allege that Plaintiff -Wife observed her husband while he was
suffering and in pain, it does not allege that she observed a traumatic infliction of
injury on her husband by Defendant Hospital. Moreover, we believe that Plaintiffs'
Complaint does not allege an "identifiable discrete traumatic event" upon which to base
a claim for negligent infliction of emotional distress. Rather, the allegations of the
Complaint depict a progression of Plaintiff -Husband's pain and suffering over a period
of approximately one month. Consequently, in light of the foregoing authority, we
hold that such allegations do not set forth a cause of action for negligent infliction of
emotional distress.
DEFENDANT DOCTOR'S AND DEFENDANT CORPORATION'S
PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE
Statement of the law. The status of the law concerning preliminary objections
to "catchall" allegations of negligence in a pleading has been well summarized by Judge
14
No. 83 CIVIL 1993
Lawrence F. Stengel of Lancaster County in Derr v. Yingling, 72 Lancaster L.R. 351
(1991). The following excerpts from that Opinion are adopted herein:
"In this ... action, the defendants have filed what have come to be known as
`Connorb5 preliminary objections.'...
"In the technical language of negligence pleading, the defendants have filed a
motion to strike certain subparagraphs because they are broad, vague, conclusory or
general in nature....
"A motion to strike is generally limited to errors of form where the alleged
defects appear on the record or on the face of the pleadings. Urban v. Urban, 332 Pa.
Superior Ct. 373, 481 A.2d 662 (1984). The remedy of striking a complaint `should be
sparingly exercised and only when a party can affirmatively show prejudice.'
Department of Environmental Resources v. Hartford Accident & Indemnity Company,
40 Pa. Commonwealth Ct. 133, 138, 396 A.2d 885 (1979). In ruling on a motion to
strike portions of a complaint, the first line of inquiry concerns Rule 1019 of the
Pennsylvania Rules of Civil Procedure and whether the language of the complaint is
in compliance with the Rule.
"Rule 1019(a) requires that the pleader set forth in concise and summary form
material facts on which a cause of action is based. In Groff v. Lancaster General
Hospital, 71 Lanc. L.R. 224, (PEREZOUS, J., 1988), Judge PEREZOUS noted that
["I Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).
15
No. 83 CIVIL 1993
Rule 1019 does not require precision pleading of specific facts:
[A] reading of the caption to Rule 1019 reveals that this
Rule commonly requires only general, not specific,
averments. The Rule does not require that all of the facts
be pleaded — only the material facts, and then, only in a
summary manner. Pa. R.C.P. No. 1019(a). Specific
averments are required in other types of cases enumerated
by the Rule. See, Pa. R.C.P. 1019(b), (f), (h).
"The purpose of the complaint is to apprise the defendant of the nature and
extent of the claims asserted and to inform the defendant of the material facts which
the plaintiff will seek to prove in support of the claim. Simply stated, if the defendant
knows what the case is about after reading the complaint, then the complaint is
probably sufficient under Rule 1019. If the defendant is not able to ascertain the
nature and extent of the claim or is not informed of the material facts which will be
proven at trial, then the complaint is insufficient....
"Our Superior Court has spoken very clearly on the question of what is required
of a complaint and what a complaint must do in order to be in compliance with our
Rules: `[A] complaint must apprise the defendant of the nature and extent of the
plaintiff's claim so that the defendant has notice of what the plaintiff intends to prove
at trial and may prepare to meet such proof with his own evidence.' Weiss v.
Equibank, 313 Pa. Superior Ct. 446, 453, 460 A.2d 271, 274-75 (1983), citing Laursen
v. General Hospital of Monroe County, 259 Pa. Superior Ct. 150, 160, 393 A.2d 761, 766
(1978), rev'd on other grounds, 494 Pa. 238, 431 A.2d 237 (1981).
16
No. 83 CIVIL 1993
"Lower courts have broad discretion in determining the amount of detail that
must be averred in a complaint since the standard of pleading is incapable of precise
measurement. United Refrigerator Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d
253 (1963). The pleading of evidentiary matters is not required. Commonwealth ex
rel., Milk Marketing Board v. Sunnybrook Dairies, Inc., 29 Pa. Commonwealth Ct. 210,
214, 370 A.2d 765, 768 (1977), citing Local 163, International Union of United Brewery
v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). Further, where facts are known better
or at least as well to the defendant as to the plaintiff, a motion for a more specific
complaint will be denied. Sorber v. UGI Corp., 70 D. & C. 2d 6242 625-26 (1975). See
also, Line Lexington Lumber & Millwork Company, Inc. v. Pennsylvania Publishing
Corporation, 451 Pa. 154, 162, 301 A.2d 684, 689 (1973)....
"[In reference to the impact of Connor v. Allegheny General Hospital, 501 Pa.
306, 461 A.2d 600 (1983), in this area, t]he precedential value of Connor [may] very
well be overstated [in some cases]....
"In Connor, the Pennsylvania supreme Court held that since the plaintiff's
complaint contained a general "catchall" allegation of negligence, the plaintiff's
proposed amendment did not change the theory of her cause of action. 501 Pa. at 310.
Consequently, the plaintiff was permitted to amend her complaint to add a new
allegation of negligence despite the fact that the statute of limitations had run.
"The dawn of a new age in negligence pleading was heralded by the now famous
17
No. 83 CIVIL 1993
footnote 3 of the Connor opinion. In footnote 3, the Court admonished the defendant
that:
If [it] did not know how it `otherwise fail[ed] to use due
care and caution under the circumstances,' it could have
filed a preliminary objection in the nature of a request for
a more specific pleading or it could have moved to strike
that portion of [plaintiff's] complaint.
Connor, 501 Pa. at 311, n.3, 461 A.2d at 602-603, n.3....
"The thrust of footnote 3 appears to have been a suggestion by the Court that
defense counsel might, in the future, consider objecting to the overbroad, general and
vague averment of negligence which typically was couched in language such as `the
defendant was otherwise negligent' or `the defendant failed to exercise reasonable
care.' An objection to such language would proceed under the authority of Rule 1019
with a nudge in the right direction by footnote 3 from the Connor opinion. In fact,
since Connor was decided in 1983, the use of such "catchall" provisions appears to have
decreased....
"This court is required to review the complaint in its entirety. Any one of the
averments of negligence, when viewed on its own and out of the context of the
complaint, might appear to be general, broad or vague. However, when considered in
light of the complaint as a whole, [a different result may obtain]." Derr v. Yingling,
72 Lancaster L.R. 351, 351-57 (1991).
Application of law to facts. In the present case, the use of such words as
U&I
No. 83 CIVIL 1993
"proper," "properly," "inappropriately," and "appropriate" in Items a, c, e, g, 1, j, and k
Of paragraphs 122 and 126 of Plaintiffs' Complaint is not the type of "boilerplate"
language encompassed by the Connor doctrine. These items are qualified by reference
to the facts of the case. Furthermore, in the context of the entire Complaint, it cannot
be said that such allegations could subject Defendant Doctor and Defendant
Corporation to any conceivable theory of negligence. Additionally, we are of the
opinion that the facts upon which Plaintiffs' cause of action is based are equally
available to Defendant Doctor and Defendant Corporation as to Plaintiffs.
For the reasons stated above, the following order is entered:
ORDER OF COURT
AND NOW, thisa.2day of June, 1993, upon careful consideration of Defendants'
Preliminary Objections to Plaintiffs' Complaint, as well as the oral arguments and
briefs submitted on the matter, it is ordered as follows:
1. Defendant Carlisle Hospital's demurrer to the negligent infliction of
emotional distress claim in Count XIV of Plaintiffs' Complaint is GRANTED.
2. Defendant Donald K. Roeder's and Defendant Belvedere Medical
Corporation's Motion to Strike Items a, c, e, g, 1, j, and k of paragraphs 122 and 126
of Plaintiffs' Complaint, or for a more specific pleading, is DENIED.
Ms7
No. 83 CIVIL 1993
Defendants are granted twenty days to file an Answer to the Complaint.
BY THE COURT,
J. Wesley Oler, Jr`� J•
Nijole C. Olson, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Michael W. McGuckin, Esq.
1850 William Penn Way
Suite 209, P.O. Box 10696
Lancaster, PA 17605-0696
Attorney for Frank Bryan, M.D. and
Frank Bryan, M.D., Ltd.
Evan Black, Esq.
Kristen L. Beech, Esq.
101 North Front Street
Harrisburg, PA 17101
Attorney for Defendants Roeder
and Belvedere Medical Corp.
Joseph P. Hafer, Esq.
Margaret A. Sheaffer, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Attorneys for Allan J. Mira, M.D. and
Allan J. Mira, P.C.
20
- No 83 CSL 1993
$ancis h
13 �h Ph A Ricci s , Jr , Esq.
23 No , Esq.
Harrisb Font Street
Attorneys g, PA 17102
Ys for Cazlisle Hospital
:rc
21