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HomeMy WebLinkAbout2001-4485 Civil (4) SUSAN MEASE, Individually, and as Guardian and Administratrix of the Estate ofDA VID COLEBAUGH, a Minor, Deceased, Plaintiff v. KENNETH BORWEGEN : and CAROLYN BORWEGEN, Individually, and as Parents, Guardians and Guardians ad Litem of JAMES BORWEGEN, a Minor, UNITED BEHA VORIAL HEALTH, BRUCE (last name unknown), c/o UNITED BEHA VORIAL HEALTH, ALl AHMED, M.D., ALAN ROSENTHAL, M.D., SCHERING-PLOUGH HEALTHCARE PRODUCTS, RITE AID OF PENNSYLVANIA, INC., (incorrectly captioned as RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS UNITED BEHA VIORAL HEALTH AND BRUCE LNU 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 a physician named Ahmed who treated the shooter for a mental problem,2 a second physician, named Rosenthal, who also treated the shooter for a mental problem,3 the manufacturer of an over-the-counter cold medication which the shooter allegedly used,4 the pharmacy chain which sold the medication,5 the manufacturer of the gun used in the shooting,6 and the shooter's HMO, United Behavioral Health,7 and one of its employees named Bruce LNU (last name unknown). 8 For disposition at this time are preliminary objections filed by Defendants United Behavioral Health and its alleged employee, Bruce LNU, to Plaintiffs complaint. The preliminary objections are in the nature of demurrers, inter alia. 9 Oral argument on the preliminary objections was held on March 29,2006. 1 Plaintiffs Complaint, Cts. I-III, filed January 23,2002 (hereinafter Plaintiffs Complaint). 2 Plaintiffs Complaint, Ct. VI. 3 Plaintiffs Complaint, Ct. VII. 4 Plaintiffs Complaint, Cts. VIII-IX, XI, XIII. 5 Plaintiffs Complaint, Cts. X, XII. 6 Plaintiffs Complaint, Cts. XIV-XVII. 7 Plaintiffs Complaint, Ct. IV. 8 Plaintiffs Complaint, Ct. V. 9 Preliminary Objections of Defendants United Behavioral Health and Bruce LNU (Last Name Unknown) to Plaintiffs Complaint, filed April 16, 2002 (hereinafter Defendants' preliminary objections). 2 For the reasons stated in this OpInIOn, the preliminary objections in the nature of demurrers will be granted and Plaintiff s complaint as it relates to Defendants United Behavioral Health and Bruce LNU will be dismissed. STATEMENT OF FACTS Plaintiff s complaint with respect to Defendants United Behavioral Health and Bruce LNU may be summarized as follows: Plaintiff is the mother and administratrix of the estate of David 1. Cole baugh, who died at the age of 14 on January 23, 2000, after being shot by l6-year-old James Borwegen.lO Defendant United Behavioral Health, a health maintenance organization, provided medical insurance coverage for James Borwegen,l1 and Defendant Bruce LNU was employed as a supervisor for the company. 12 These defendants were negligent and/or reckless with respect to James Borwegen's mental health treatment due to their a. Fail[ure] to provide necessary and indicated inpatient and intensive psychiatric care to James Borwegen. b. Failure to authorize and approve necessary and indicated inpatient psychiatric hospitalization of James Borwegen. c. Failure to authorize and approve necessary and indicated intensive psychiatric care for James Borwegen. d. Failure to follow the standard of medical and psychiatric care in providing necessary and indicated inpatient and intensive psychiatric care to James Borwegen. e. Failure to follow the necessary and indicated reasonable medical and psychiatric standard of care requiring inpatient hospitalization and intensive psychiatric care to James Borwegen. f. Failure to authorize and approve necessary and indicated inpatient psychiatric care and intensive psychiatric treatment for James Borwegen. g. Failure to promptly and properly provide the necessary and indicated medical and psychiatric care that James Borwegen's condition demanded. h. Failure to promptly and properly authorize and approve the necessary and indicated medical and psychiatric care that defendant James Borwegen's condition demanded. 10 Plaintiffs Complaint, paras. 1-3, 6, 17. 11 Plaintiffs Complaint, para. 8. 12 Plaintiffs Complaint, para. 9. 3 i. Failure to provide, authorize and approve necessary and indicated adequate referral of defendant to a psychiatrist required by James Borwegen's condition. j. Failure to recognize the seriousness of James Borwegen's condition and to provide, authorize and approve necessary and indicated inpatient and intensive psychiatric care required by the standard of medical and psychiatric care necessary to render prompt and appropriate advice, assistance, and psychiatric care to James Borwegen. k. Failure to properly and competently manage James Borwegen's psychiatric care and treatment. I. Gross negligence and/or recklessness at law. m. Such gross negligence and/or recklessness as may become apparent during discovery. n. Violation of the Mental Health Procedures Act.13 The complaint alleges further that as a result of the negligence of Defendant United Behavioral Health and Defendant Bruce LNU Plaintiff s 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. N or does it suggest that James Borwegan had communicated to Defendant United Behavioral Health or Defendant Bruce LNU 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 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 negligence in the area of medical care, courts have been reluctant to extend the duty of a provider to avoid harm to persons who were not 13 Plaintiffs Complaint, paras. 47, 57. 14 Plaintiffs Complaint, paras. 49-54, 59-64. 4 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 provider may be liable to a third party for the violent act of a 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 the provider "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 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.... 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). 5 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 Behavioral Health or Defendant Bruce LNU 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, or that Plaintiff s decedent was specifically identified to, or identifiable by, either defendant as a potential victim of such injury, the law as it has developed will not support Plaintiff s claim against either Defendant United Behavioral Health or Defendant Bruce LNU. At oral argument, Plaintiff s counsel candidly acknowledged that this court was not in a position to hold otherwise. For the foregoing reasons, the following order granting the demurrers of these defendants will be entered: 16 ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections of Defendants United Behavioral Health and Bruce LNU, and for the reasons stated in the accompanying opinion, the preliminary objections in the nature of demurrers are sustained and Plaintiff s complaint against Defendants United Behavioral Health and Bruce LNU is dismissed. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. 16 In view of this disposition of the matter, the remaining preliminary objections of defendants have not been considered. 6 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 Attorneys 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. 7 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 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 Parents, Guardians and Guardians ad Litem of JAMES BORWEGEN, a Minor, UNITED BEHA VORIAL HEALTH, BRUCE (last name unknown), c/o UNITED BEHA VORIAL HEALTH, ALl AHMED, M.D., ALAN ROSENTHAL, M.D., SCHERING-PLOUGH HEALTHCARE PRODUCTS, RITE AID OF PENNSYLVANIA, INC., (incorrectly captioned as RITE AID PHARMACY) and ITHACA GUN COMP ANY, Defendants NO. 01-4485 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS UNITED BEHA VIORAL HEALTH AND BRUCE LNU BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 19th day of May, 2006, upon consideration of the preliminary objections of Defendants United Behavioral Health and Bruce LNU, and for the reasons stated in the accompanying opinion, the preliminary objections In the nature of demurrers are sustained and Plaintiff s complaint against Defendants United Behavioral Health and Bruce LNU 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 Andrew H. Briggs, Esq. Post & Schell 1857 William Penn Way P.O. Box 10248 Lancaster, P A 17605 Attorneys 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