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HomeMy WebLinkAbout2012-165 JOAN WESTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, : individually and doing business as : HOLY SPIRIT HOSPITAL, and GARY : FRANCIS FATOOL, : Defendants : NO. 12-0165 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS BEFORE HESS, P.J. and PECK, J. ORDER OF COURT th AND NOW, this 12 day of June, 2013, upon consideration of the preliminary objections of Defendant Holy Spirit Hospital to Plaintiff’s complaint, the preliminary objections of Defendant Fatool to Plaintiff’s complaint, and after oral argument, it is hereby ordered that: Defendant Holy Spirit Hospital’s preliminary objection (1) to Plaintiff’s claim of vicarious liability is SUSTAINED; (2) to Plaintiff’s negligence cause of action is OVERRULED; (3) to Plaintiff’s claim for punitive damages is OVERRULED; and, (4) to Plaintiff’s improper claims for damages is SUSTAINED. Defendant Fatool’s preliminary objection to Plaintiff’s negligence per se cause of action is OVERRULED; and to Plaintiff’s improper claims for damages is SUSTAINED. BY THE COURT, ____________________ Christylee L. Peck, J. Darrell C. Dethlefs, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Thomas M. Chairs, Esq. Plaza 21, Suite 302 st 425 N. 21 Street Camp Hill, PA 17011 Attorney for Defendant Holy Spirit Hospital William J. Aquilino, Esq. 305 Linden Street Scranton, PA 18503 Attorney for Defendant Fatool 2 JOAN WESTON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, : individually and doing business as : HOLY SPIRIT HOSPITAL, and GARY : FRANCIS FATOOL, : Defendants : NO. 12-0165 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS BEFORE HESS, P.J. and PECK, J. OPINION and ORDER OF COURT Peck, J., June 12, 2013. Holy Spirit Hospital of the Sisters of the Christian Charity, individually and doing business as, Holy Spirit Hospital (“Defendant Holy Spirit Hospital”) has raised the following preliminary objections to the complaint of Joan Weston (“Plaintiff”): (1) a demurrer to Plaintiff’s claim of vicarious liability; (2) a demurrer to Plaintiff’s negligence cause of action; (3) a motion to strike Plaintiff’s claim for punitive damages; and, (4) a 1 motion to strike improper claims for damages. Gary Francis Fatool (“Defendant Fatool”) has raised the following preliminary objections to Plaintiff’s complaint: (1) a motion to dismiss the claim for negligence per se; and, (2) a motion to strike improper claims for 2 damages.For the reasons hereinafter set forth, Defendant Holy Spirit Hospital’s preliminary objections: (1) to Plaintiff’s claims of vicarious liability and improper claims for damages will be sustained; and (2) to Plaintiff’s claim for punitive damages and to the negligence cause of action will be overruled. Additionally, for the reasons hereinafter set 1 Compl., Sept. 12, 2012; Prelim. Objs. to Pl.’s Compl. filed by Def., Holy Spirit Hosp. of the Sisters of the Christian Charity, indiv. and d.b.a., Holy Spirit Hosp., Oct. 4, 2012, (hereinafter “Prelim. Objs. of Def. Holy Spirit Hosp.”). 2 Compl., Sept. 12, 2012; Prelim. Objs. of Def., Gary Francis Fatool, to Pl.’s Compl., Oct. 5, 2012 (hereinafter “Prelim. Objs. of Def. Fatool”). forth, Defendant Fatool’s preliminary objections: (1) to Plaintiff’s negligence per se cause of action will be overruled; and (2) sustain Defendant Fatool’s preliminary objections to Plaintiff’s improper claims for damages will be sustained. PROCEDURAL HISTORY 3 Plaintiff’s complaint was filed on September 12, 2012. Thereafter Defendant Holy Spirit Hospital and Defendant Fatool filed preliminary objections to Plaintiff’s 4 complaint. Briefs were filed by all parties and, on December 21, 2012, this Court heard 5 oral argument regarding the issues raised. The preliminary objections of Defendant Holy Spirit Hospital and Defendant Fatool are now before this Court. STATEMENT OF FACTS Plaintiff has averred the following facts in her complaint: On November 12, 2010, Plaintiff was admitted to Defendant Holy Spirit 6 Hospital’s facility for the treatment of kidney stones. Surgery was performed that same 7 day to correct Plaintiff’s ailment. After the surgery, at approximately 2:00 p.m., Plaintiff 8 was placed in a room with J.M., another patient. Plaintiff was placed on pain medication 9 and given morphine shots as needed to cope with the pain. Defendant Fatool was a registered nurse employed by Defendant Holy Spirit 10 Hospital. At approximately 7:00 p.m., Defendant Fatool entered Plaintiff’s room and 3 Compl., Sept. 12, 2012. 4 Prelim. Objs. of Def. Holy Spirit Hosp.; Prelim. Objs. of Def. Fatool. 5 Br. in Supp. of Prelim. Objs. to Pl.’s Compl. filed by Def., Holy Spirit Hosp. of the Sisters of the Christian Charity, indiv. and d.b.a., Holy Spirit Hosp., Dec. 10, 2012; Br. of Def., Gary Francis Fatool, in Supp. of Prelim. Objs. to Compl.; Pl., Joan Weston’s, Br. in Opp. to the Prelim. Objs. filed by Def. Gary Francis Fatool, Dec. 12, 2012; Pl., Joan Weston’s, Br. in Opp. to the Prelim. Objs. filed by Def., Holy Spirit Hosp., Dec. 12, 2012. 6 Compl. at ¶ 5. 7 Compl. at ¶ 6. 8 Compl. at ¶ 7. 9 Compl. at ¶ 8. 10 Compl. at ¶ 4. 2 11 introduced himself. During his initial introduction, Defendant Fatool asked Plaintiff 1213 whether she was married. Plaintiff responded that she was separated. Defendant Fatool then uncovered Plaintiff’s feet, pulled off her socks, and touched her feet for over 1415 a minute. Defendant Fatool did not check J.M.’s feet. At approximately 10:00 p.m., Defendant Fatool entered Plaintiff’s room to check on her and Plaintiff communicated that she was still in pain but hated the morphine 16 because it made her hands and feet fall asleep. Defendant Fatool then offered to rub 17 Plaintiff’s feet but Plaintiff declined. Defendant Fatool persisted and rubbed Plaintiff’s 18 feet despite Plaintiff’s decline of his offer. Defendant Fatool assured Plaintiff that it was 19 part of his job and rubbed Plaintiff’s feet for approximately twenty minutes. As Defendant Fatool was leaving the room, he attempted to grab J.M.’s feet but was told not 20 to touch her feet. At approximately 5:00 a.m. the next day, Defendant Fatool reentered Plaintiff’s 21 room and administered a shot of medication to Plaintiff. Defendant Fatool asked 22 Plaintiff if her feet were tingling. She responded in the affirmative and Defendant 23 Fatool again offered to rub Plaintiff’s feet. Plaintiff declined the offer and told 11 Compl. at ¶ 10. 12 Compl. at ¶ 12. 13 Compl. at ¶ 14. 14 Compl. at ¶¶ 15-16. 15 Compl. at ¶ 17. 16 Compl. at ¶ 18. 17 Compl. at ¶ 19. 18 Compl. at ¶ 20. 19 Compl. at ¶ 21. 20 Compl. at ¶ 22. 21 Compl. at ¶¶ 23-24. 22 Compl. at ¶ 25. 23 Compl. at ¶ 25. 3 24 Defendant Fatool that it was not necessary. Defendant Fatool proceeded to remove 25 Plaintiff’s socks and rub her feet. Plaintiff was heavily medicated and unable to stop 26 Defendant Fatool. Defendant Fatool pulled up a chair and pulled the dividing curtain 27 between Plaintiff and J.M. Plaintiff was lying on her back and could feel Defendant 28 Fatool breathing on her feet, and kissing, sucking, and licking her toes. Plaintiff looked 29 down and saw Defendant Fatool sucking and licking her toes. Plaintiff believes that this 30 behavior lasted for 20 to 30 minutes. During this time, a methodical thumping sound was heard coming from Defendant 3132 Fatool. Plaintiff believes that this sound was Defendant Fatool masturbating. Upon leaving the room, Defendant Fatool told Plaintiff that she had beautiful feet and said, 33 “thank you very much.” As a result of this conduct, criminal charges were brought 34 against Defendant Fatool. Plaintiff alleges that Defendant Holy Spirit Hospital was aware of a prior similar incident by Defendant Fatool and, therefore, his propensity to 35 commit acts as described above. Defendant Holy Spirit Hospital nevertheless continued 36 to employ Defendant Fatool as a nurse. 24 Compl. at ¶ 26. 25 Compl. at ¶ 27. 26 Compl. at ¶ 27. 27 Compl. at ¶ 28. 28 Compl. at ¶¶ 29-30. 29 Compl. at ¶ 31. 30 Compl. at ¶ 32. 31 Compl. at ¶ 33. 32 Compl. at ¶ 34. 33 Compl. at ¶ 35. 34 Compl. at ¶ 34. 35 Compl. at ¶¶ 68, 70. 36 Compl. at ¶¶ 64-65. 4 DISCUSSION General preliminary objections standard of review When considering the appropriateness of a ruling on preliminary objections, the court must accept as true all well-plead material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). Such an inquiry assesses the legal sufficiency of the complaint. Id. In reviewing the complaint, “only well pleaded material facts are admitted, and not conclusions of law.” McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 658 (Pa. Super. 2000). Preliminary objections will be sustained only if they are clear and free of doubt. Wheeler v. Nationwide Mut. Fire Ins. Co., 905 A.2d 504, 505 (Pa. Super. 2006). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa. Cmwlth. 2003). The court must be able to say with certainty that upon the facts averred, the law will not permit recovery. Schuylkill Navy, 728 A.2d at 968. A trial court’s decision regarding preliminary objections will be reversed only where there has been an error of law or abuse of discretion. Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134, 144 (Pa. Super. 2008). Demurrer standard of review A demurrer, under Pa.R.C.P. Rule 1028(a)(4), is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008). In ruling on a demurrer, the court may consider only matters that arise out of the complaint itself; it cannot supply a fact missing in the complaint. Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007). In evaluating a demurrer, all material facts set forth in the complaint and all inferences reasonably deducible therefrom must be admitted as true. Id. at 806. The question presented by a demurrer is whether, based on the facts averred, the law says with certainty that the contested pleading is legally insufficient and no recovery is possible. Schuylkill Navy, 728 A.2d at 968. If there is any doubt as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Lerner, 954 A.2d at 5 1234. Therefore, a preliminary objection in the nature of a demurrer may be properly granted only where the contested pleading is legally insufficient. Hess, 925 A.2d at 805. Vicarious liability claim against Defendant Holy Spirit Hospital Defendant Holy Spirit Hospital asserts that the actions of Defendant Fatool were outside the scope of his employment and, therefore, the Plaintiff’s claim for vicarious liability should be dismissed for failure to state a claim upon which relief can be granted. This Court agrees. An employer is vicariously liable if an employee commits a wrongful act during the course of and within the scope of employment. Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 39 (Pa. Super. 2000). This liability may extend to intentional or criminal acts committed by the employee. Id. It is not done within the scope of employment, however, if the act is done for personal reasons, or in an outrageous manner. Id. The conduct of an employee is considered ‘within the scope of employment’ for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super. 1998). Pennsylvania courts “have held that an assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by an intent to perform the business of the employer and, as such, is not within the scope of employment.” Id. at 493. In the present case, Defendant Fatool’s conduct was not of the kind and nature which he was employed to perform. Though his conduct did occur within the authorized time and space limits, it was not actuated for the purpose of serving his employer. Rather, his actions were initiated for apparently unseemly personal gratification. The facts averred will not permit recovery on the theory that Defendant Fatool was acting within the scope of his employment, and, therefore Defendant Holy Spirit Hospital’s preliminary objection to the claim for vicarious liability is sustained. 6 Negligent hiring and retention claim against Defendant Holy Spirit Hospital Defendant Holy Spirit Hospital also asserts that Plaintiff’s claim for negligent hiring and retention should be dismissed for failure to state a claim for which relief can be granted. This Court disagrees. “It has long been the law in this Commonwealth that an employer may be liable in negligence if it knew or should have know[n] that an employee was dangerous, careless or incompetent and such employment might create a situation where the employee's conduct would harm a third person.” Brezenski, 755 A.2d at 39-40 (citing Dempsey v. Walso Bureau, Inc., 246 A.2d 418 (Pa. 1968)). “[A]n employer may be held negligent for the failure to exercise reasonable care in determining employee's propensity for violence in an employment situation where violence would harm a third person,” and “[i]n these situations the victim must establish that the employer breached a duty to protect others against a risk of harm.” Id. at 42. In the present case, Plaintiff has alleged that Defendant Holy Spirit Hospital was aware of a prior similar incident by Defendant Fatool and, therefore, his propensity to commit harmful acts toward patients. Plaintiff has alleged that Defendant Holy Spirit Hospital continued to employ Defendant Fatool as a nurse after they learned of Defendant Fatool’s first injurious incident. Defendant Fatool’s continued employment created the present situation in which his conduct harmed Plaintiff. This Court, accepting as true all well-plead material facts set forth in Plaintiff’s complaint, along with reasonably deductible inferences from those facts, finds Plaintiff’s negligent hiring and retention claim is legally sufficient. Defendant Holy Spirit Hospital’s preliminary objection, therefore, is overruled with respect to the negligent hiring and retention claim. Punitive damages claim against Defendant Holy Spirit Hospital Defendant Holy Spirit Hospital asserts that Plaintiff’s claim for punitive damages is inappropriate and should be stricken. This Court disagrees. “Our case 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). The Pennsylvania Supreme Court has stated that “[p]unitive damages may be awarded for 7 conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others.” SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991) (citing REST 2d TORTS § 908(2)). “The state of mind of the actor is vital.” Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984). Under Pennsylvania law, the only type of reckless conduct sufficient to create a jury question on the issue of punitive damages arises where the defendant “knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” SHV Coal, Inc., 587 A.2d at 704-705, (citing REST 2d TORTS § 500 Comment (a)). “The determination of whether a person's actions arise to outrageous conduct lies within the sound discretion of the fact-finder.” Id. at 705. In the present case, Plaintiff has pled facts sufficient to find that Defendant Holy Spirit Hospital is liable for the negligent hiring and retention of Defendant Fatool. Plaintiff has alleged that Defendant Holy Spirit Hospital was aware of a prior incident by Defendant Fatool and, therefore, his propensity to commit harmful acts toward patients. This averment establishes the facts known to Defendant Holy Spirit Hospital which created a high degree of risk of physical harm to another. Plaintiff has alleged that Defendant Holy Spirit Hospital continued to employ Defendant Fatool as a nurse despite their knowledge of Defendant Fatool’s actions. Plaintiff has alleged Defendant Fatool’s continued employment created the present situation in which his conduct harmed Plaintiff. The conduct averred by Plaintiff in her complaint is sufficient to create a jury question on the issue of punitive damages. Defendant Holy Spirit Hospital’s preliminary objections are therefore overruled. Negligence per se claim against Defendant Fatool Defendant Fatool asserts that Plaintiff’s claim for negligence per se should be dismissed for failure to state a claim for which relief can be granted. This Court disagrees. Plaintiff has alleged that Defendant Fatool’s actions constitute negligence per se because his conduct violated the Pennsylvania Nurse Practice Act, 49 Pa.Code § 21.18(b)(9). The standards of nursing conduct states that, “[a] registered nurse may not 8 … [e]ngage in conduct defined as a sexual violation or sexual impropriety in the course of a professional relationship.” 49 Pa.Code § 21.18 (b)(9). A sexual violation is defined to include the offenses of: (iv) [t]ouching breasts, genitals, or any other body part for any purpose other than appropriate examination or treatment, or using prolonged or improper examination techniques, or after the patient has refused or withdrawn consent. (v) … masturbating while a patient is present. *** (vii) [u]sing or causing the use of anesthesia or any other drug affecting consciousness for the purpose of engaging in conduct that would constitute a sexual impropriety or sexual violation. 49 Pa. Code § 21.1 (v), (vii). The Pennsylvania Nurse Practice Act further provides that “[a] registered nurse shall … [s]afeguard the patient's dignity” and “the right to privacy.” 49 Pa.Code § 21.18 (a)(4). “Negligence per se applies when an individual violates an applicable statute, regulation or ordinance designed to prevent a public harm.” Sodders v. Fry, 32 A.3d 882, 887 (Pa. Commw. 2011). “[I]t is well settled that there must be a direct connection between the harm meant to be prevented by the statute, and the injury complained of.” Gravlin v. Fredavid Builders & Developers, 677 A.2d 1235, 1238-39 (Pa. Super. 1996). Negligence per se functions to establish both duty and the required breach of duty. Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super. 2001). “A violation of a statute may be negligence per se and liability may be grounded on such negligence but the plaintiff cannot recover unless such negligence is the proximate and efficient cause of the injury in question.” Id. “The Plaintiff still bears the burden of establishing causation.” Id. The purpose of the Pennsylvania Nurse Practice Act is to “insure safe nursing services for the citizens of this Commonwealth” and “[t]o assure safe standards of nursing practice … through the regulation of the practice of nursing in this Commonwealth.” 49 Pa. Code § 21.3(2). The complaint pleads sufficient facts to establish that Defendant Fatool, by administering a shot of medication to Plaintiff, touching Plaintiff’s feet without her consent for a purpose other than appropriate 9 examination, kissing, sucking and licking her toes, and then masturbating, engaged in conduct defined as a sexual violation under the Pennsylvania Nurse Practice Act. It is clear from the complaint that a direct connection exists between the harm meant to be prevented by the Pennsylvania Nurse Practice Act, and the injury complained of by Plaintiff. Defendant Fatool’s preliminary objection, therefore, is overruled with respect to the negligence per se claim. Improper claim for damages against Defendant Holy Spirit Hospital and Defendant Fatool Plaintiff has agreed to withdraw her claim for attorney’s fees without prejudice. Defendant Holy Spirit Hospital and Defendant Fatool have moved this Court to dismiss Plaintiff’s claim with prejudice. “[P]arties are generally not entitled to an award of counsel fees from an adverse party in the absence of express statutory authorization, a clear agreement between the parties, or the application of a clear exception.” James Corp. v. North Allegheny School Dist., 938 A.2d 474, 490 (Pa. Cmwlth. 2007). Plaintiff cites no statute, agreement or recognized exception authorizing an award of attorney's fees in this matter. Accordingly, this Court sustains Defendant Holy Spirit Hospital and Defendant Fatool’s preliminary objections and strikes all demands for attorney's fees from the complaint with prejudice. Accordingly, the following order is entered: ORDER OF COURT th AND NOW, this 12 day of June, 2013, upon consideration of the preliminary objections of Defendant Holy Spirit Hospital to Plaintiff’s complaint, the preliminary objections of Defendant Fatool to Plaintiff’s complaint, and after oral argument, it is hereby ordered that: Defendant Holy Spirit Hospital’s preliminary objection (1) to Plaintiff’s claim of vicarious liability is SUSTAINED; (2) to Plaintiff’s negligence cause of action is OVERRULED; (3) to Plaintiff’s claim for punitive damages is OVERRULED; and, (4) to Plaintiff’s improper claims for damages is SUSTAINED. Defendant Fatool’s preliminary objection to Plaintiff’s negligence per se cause of action 10 is OVERRULED; and to Plaintiff’s improper claims for damages is SUSTAINED. BY THE COURT, s/Christylee L. Peck Christylee L. Peck, J. Darrell C. Dethlefs, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Thomas M. Chairs, Esq. Plaza 21, Suite 302 st 425 N. 21 Street Camp Hill, PA 17011 Attorney for Defendant Holy Spirit Hospital William J. Aquilino, Esq. 305 Linden Street Scranton, PA 18503 Attorney for Defendant Fatool 11