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HomeMy WebLinkAbout2001-4485 Civil (3) SUSAN MEASE, Individually, and as Guardian and Administratrix of the Estate ofDA VID COLEBAUGH, a Minor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KENNETH BORWEGEN : and CAROLYN BORWEGEN, Individually, and as Guardians ad Litem of JAMES BORWEGEN, A Minor, UNITED BEHA VORIAL HEALTH, BRUCE LNU (Last Name Unknown), c/o UNITED BEHA VORIAL HEALTH,: ALl AHMED M.D.; ALAN ROSENTHAL, M.D., SCHERING- PLOUGH HEAL THCARE: PRODUCTS OF PENNSYLVANIA, INC., INCORRECTL Y CAPTIONED AS RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT ROSENTHAL TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., May 19,2006. In this civil case, the mother of a boy who was fatally shot by another boy has, in her individual capacity and as administratrix of her son's estate, sued numerous Defendants. If the allegations of the complaint are credited, Defendants include the shooter's parents, 1 the shooter's HMO,2 an employee of the HMO whose first name was Bruce,3 a physician who treated the shooter named Ahmed, 4 the manufacturer of an over-the-counter cold medication which the shooter allegedly used,5 the pharmacy chain which sold the medication,6 the manufacturer of the gun used in the shooting,7 and a physician named Rosentha18 who treated the shooter for a mental problem. 9 For disposition at this time are preliminary objections filed by Defendant Rosenthal to Plaintiff s complaint. The preliminary objections are in the nature of a demurrer, a motion to strike a claim for punitive damages, and a motion to strike for lack of specificity. 10 Oral argument on the preliminary objections was held on March 29,2006. For the reasons stated in this OpInIOn, the preliminary objection in the nature of a demurrer will be granted and Plaintiff s complaint as it relates to Defendant Rosenthal will be dismissed. STATEMENT OF FACTS Plaintiff s complaint with respect to Defendant Rosenthal may be summarized as follows: Plaintiff is the mother and administratrix of the estate of 1 Plaintiffs Complaint, Cts. I-III, FILED January 23,2002 (hereinafter Plaintiffs Complaint). 2 Plaintiffs Complaint, Ct. IV. 3 Plaintiffs Complaint, Ct. V. 4 Plaintiffs Complaint, Ct. VI. 5 Plaintiffs Complaint, Cts. VIII-IX, XI, XIII. 6 Plaintiffs Complaint, Cts. X, XII. 7 Plaintiffs Complaint, Cts. XIV-XVII. 8 In Plaintiffs complaint, Defendant Rosenthal is identified as Alan Rosenthal. See Plaintiffs Complaint, para. 12. Dr. Rosenthal's preliminary objections indicate that his correct name is David Rosenthal. See Preliminary Objections of Defendant, David Rosenthal, M.D. (improperly identified in Plaintiffs Complaint as Dr. Alan Rosenthal) to Plaintiffs Complaint, preamble, filed July 15, 2002 (hereinafter Defendant's Preliminary Objections). 9 Plaintiffs Complaint, Ct. VII. 10 Defendant's Preliminary Objections, filed July 15, 2002. 2 David 1. Colebaugh, who died at the age of 14 on January 23, 2000, after being shot by l6-year-old James Borwegen.ll Defendant Rosenthal, a licensed physician in Pennsylvania, 12 provided mental health treatment to James Borwegen which was negligent and/or reckless due to the doctor's a. Failure to follow reasonable, medical, and psychiatric standards in diagnosing and treating James Borwegen's condition. b. Failure to promptly and properly render the medical and psychiatric care that James Borwegen's condition demanded. c. Failure to refer James Borwegen to necessary and indicated inpatient hospitalization as demanded by the psychiatric standard of care. d. Failure to recognize the seriousness of James Borwegen's condition and to render prompt and reasonable psychiatric treatment as required by the standard of care. e. Failure to demand necessary and indicated inpatient hospitalization and intensive psychiatric treatment of James Borwegen. f. Gross negligence and/or recklessness at law. g. Violation of the Mental Health Procedures Act. h. Such negligence and/or recklessness as may become apparent d . d' 13 unng Iscovery. The complaint alleges further that as a result of Defendant Rosenthal's negligence Plaintiffs decedent was shot by James Borwegen, resulting in various compensable damages.14 The complaint does not suggest that James Borwegen was an individual who had been committed pursuant to the Mental Health Procedures Act. Nor does it suggest that James Borwegen had communicated to Defendant Rosenthal any threats to cause injury to others or that Plaintiff s decedent was identifiable as a potential victim of such injury. DISCUSSION In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, the court "must accept all material facts set forth in the complaint[,] as well as all the inferences reasonably deducible 11 Plaintiffs Complaint, paras. 1-3, 6, 17, filed January 23, 2002. 12 Plaintiffs Complaint, para. 12. 13 Defendant's Preliminary Objections, para. 75. 14 Plaintiffs Complaint, paras. 77-78, 79-82. 3 therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995) (citations omitted). A preliminary objection in the form of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Id With respect to professional negligence in the medical malpractice area, courts have been reluctant to extend the duty of a medical care provider to avoid malpractice to persons who were not under his or her care. See, e.g., Tomko v. Marks, 412 Pa. Super. 54, 602 A.2d 890 (1992).15 The exceptional circumstances in Pennsylvania under which a doctor may be liable to a third party for the violent act of his or her mental patient are few. Where willful misconduct or gross negligence is involved, the discharge of a patient from involuntary commitment under the Mental Health Procedures Act may result in liability for adverse consequences suffered by those who foreseeably could have been affected by the wrongful discharge. Goryeb v. Commonwealth of Pennsylvania, Department of Public Welfare, 525 Pa. 70, 575 A.2d 545 (1990). Furthermore, a medical professional may be liable for a failure to warn a potential victim of violence from his or her patient. Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 720 A.2d 1032 (1998). But in this context it is clear that "a psychologist (or psychiatrist) owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual." Dunkle v. Food Service East Inc., 400 Pa. Super. 58, 68, 582 A.2d 1342, 1347 (1990). In this regard, "[t]he predicate for a duty to warn is the existence of a specific and immediate threat of serious bodily injury that has been communicated to the professional." Emerich v. Philadelphia Center for Human Development, Inc., 554 Pa. 209, 226, 720 A.2d 1032, 1040 (1998). "Moreover, the duty to warn 15 But see DiMarco v. Lynch Homes-Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990) (duty extended to third party where inaccurate medical advice to patient resulted in transmission of disease to third party); see also Sharpe v. St. Luke's Hospital, 573 Pa. 90, 821 A.2d 1215 (2003) (medical laboratory hired by employer held to owe duty of reasonable care to employee with respect to testing for drugs). 4 will only arise where the threat is made against a specifically identified or readily identifiable victim." Id Strong reasons support the determination that the duty to warn must have some limits. Weare cognizant of the fact that the nature of therapy encourages patients to profess threats of violence, few of which are acted upon. Public disclosure of every generalized threat would vitiate the therapist's efforts to build a trusting relationship necessary for progress.... Moreover, as a practical matter, a mental health care professional would have great difficulty in warning the public at large of a threat against an unidentified person. Even if possible, warnings to the general public would produce a cacophony of warnings that by reason of their sheer volume would add little to the effective protection of the public. Id at 226, 720 A.2d at 1040-41 (citations omitted); see also Dunkle v. Food Service East Inc., 400 Pa. Super. 58, 582 A.2d 1342 (1990). In the present case, where there is no allegation that Defendant Rosenthal had been involved in the discharge of James Borwegen from a mental health commitment, or that James Borwegen had communicated a threat to injure others to Defendant Rosenthal, or that Plaintiff s decedent was specifically identified to, or identifiable by, Defendant Rosenthal as a potential victim of such injury, the law as it has developed will not support Plaintiff s claim against Dr. Rosenthal. At oral argument, Plaintiff s counsel candidly acknowledged that this court was not in a position to hold otherwise. F or the foregoing reasons, the following order granting Dr. Rosenthal's demurrer will be entered: 16 ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections of Defendant Rosenthal, and for the reasons stated in the accompanying opinion, the preliminary objection in the nature of a demurrer is sustained and Plaintiff s complaint against Dr. Rosenthal is dismissed. 16 In view of the court's disposition of the preliminary objections on this ground, it is not necessary to consider the remaining preliminary objections of Dr. Rosenthal. 5 1. Michael Farrell, Esq. 718 Arch Street Suite 402S Philadelphia, P A 19106 Attorney for Plaintiff Jefferson 1. Shipman, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants Kenneth Borwegen and Carolyn Borwegen, Individually and as Parents, Guardians and Guardians ad Litem of James Borwegen, a Minor Jeffrey A. Lutsky, Esq. Kimberly A. Hendrix, Esq. Stradley, Ronan, Stevens & Young, LLP 2600 One Commerce Square Philadelphia, P A 19103 Attorneys for Defendants United Behavioral Health and Bruce (Last Name Unknown) Andrew H. Briggs, Esq. Post & Schell 1857 William Penn Way P.O. Box 10248 Lancaster, P A 17605-0248 Attorney for Defendant Ali Ahmed, M.D. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 6 B. Craig Black, Esq. Edwin A.D. Schwartz, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant David Rosenthal, M.D. Thomas B. Schmidt, III, Esq. Alexandra Makosky, Esq. 200 One Keystone Plaza North Front and Market Streets P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Defendant Schering-Plough Health Care Products, Inc., and Defendant Rite Aid of Pennsylvania, Inc. Michael T. Hollister, Esq. The Belgravia 1811 Chestnut Street 6th Floor Philadelphia, P A 19103 Attorney for Defendant Ithaca Gun Company 7 8 9 SUSAN MEASE, Individually, and as Guardian and Administratrix of the Estate ofDA VID COLEBAUGH, a Minor, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW KENNETH BORWEGEN : and CAROLYN BORWEGEN, Individually, and as Guardians ad Litem of JAMES BORWEGEN, A Minor, UNITED BEHA VORIAL HEALTH, BRUCE LNU (Last Name Unknown), c/o UNITED BEHA VORIAL HEALTH,: ALl AHMED M.D.; ALAN ROSENTHAL, M.D., SCHERING- PLOUGH HEAL THCARE: PRODUCTS OF PENNSYLVANIA, INC., INCORRECTL Y CAPTIONED AS RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT ROSENTHAL TO PLAINTIFF'S COMPLAINT BEFORE HESS and OLER, JJ. 10 11 12 ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections of Defendant Rosenthal, and for the reasons stated in the accompanying opinion, the preliminary objection in the nature of a demurrer is sustained and Plaintiff s complaint against Dr. Rosenthal is dismissed. BY THE COURT, 1. Wesley Oler, Jr., 1. 1. Michael Farrell, Esq. 718 Arch Street Suite 402S Philadelphia, P A 19106 Attorney for Plaintiff Jefferson 1. Shipman, Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Attorney for Defendants Kenneth Borwegen and Carolyn Borwegen, Individually and as Parents, Guardians and Guardians ad Litem of James Borwegen, a Minor Jeffrey A. Lutsky, Esq. Kimberly A. Hendrix, Esq. Stradley, Ronan, Stevens & Young, LLP 2600 One Commerce Square Philadelphia, P A 19103 Attorneys for Defendants United Behavioral Health and Bruce (Last Name Unknown) 13 14 Andrew H. Briggs, Esq. Post & Schell 1857 William Penn Way P.O. Box 10248 Lancaster, P A 17605-0248 Attorney for Defendant Ali Ahmed, M.D. B. Craig Black, Esq. Edwin A.D. Schwartz, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant David Rosenthal, M.D. Thomas B. Schmidt, III, Esq. Alexandra Makosky, Esq. 200 One Keystone Plaza North Front and Market Streets P.O. Box 1181 Harrisburg, PA 17108-1181 Attorneys for Defendant Schering-Plough Health Care Products, Inc., and Defendant Rite Aid of Pennsylvania, Inc. Michael T. Hollister, Esq. The Belgravia 1811 Chestnut Street 6th Floor Philadelphia, P A 19103 Attorney for Defendant Ithaca Gun Company 15