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HomeMy WebLinkAbout2005-6320 Civil JOHN F. KOELSCH, individually and as administrator of the ESTATE OF KRISTY E. KOELSCH, deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW HOLY SPIRIT HEALTH SYSTEM, individually and/or doing business as Holy Spirit of the Sisters of Christian Charity and/or doing as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, individually and/or doing business as Holy Spirit Hospital; HOLY SPIRIT HOSPITAL; CHARLES D. EVANCHO, M.D.; RICHARD 1. DITLOW, JR., M.D.; and OAKWOOD CENTER RADIATION ONCOLOGY, Defendants NO. 05-6320 CIVIL TERM IN RE: DEFENDANT OAKWOOD CENTER RADIATION ONCOLOGY'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, 1., October 20, 2006. In this medical malpractice case, Plaintiff seeks to hold Defendant Oakwood Center Radiation Oncology liable under theories of corporate negligence and negligent infliction of emotional distress, inter alia. Defendant Oakwood Center Radiation Oncology has filed preliminary objections to Plaintiffs complaint under the following headings: I. Demurrer to Count IV-negligence/survival action-Plaintiff v. Defendant Oakwood Center Radiation Oncology; 1 1 Preliminary Objections of Oakwood Center Radiation Oncology to Plaintiffs Complaint, ~~ 5-18, filed February 28,2006 (hereinafter Defendant Oakwood's Preliminary Objections, ~. II. Preliminary objection to Count V of Plaintiff s complaint [relating to negligent infliction of emotional distress]-failure to state a claim on which relief can be granted;2 and III. Preliminary objection in the nature of a motion to strike for insufficient specificity of a pleading pursuant to Pa. RC.P. 1028(a)(3).3 Oral argument on the preliminary objections was held on September 6, 2006. For the reasons stated in this opinion, Defendant's preliminary objection to Plaintiff s claim for negligent infliction of emotional distress will be granted and the other preliminary objections will be denied. STATEMENT OF FACTS For the purpose of Defendant Oakwood's preliminary objections, the allegations of the complaint may be summarized as follows: Plaintiff John F. Koelsch is the widower of Kristy E. Koelsch, deceased, and is administrator of the estate of Kristy E. Koelsch.4 Plaintiffs wife, Kristy E. Koelsch, died from metastatic breast cancer on May 24, 2005.5 Defendants are Holy Spirit Health System, Holy Spirit Hospital, Dr. Charles D. Evancho, Dr. Richard 1. Ditlow, Jr.,6 and Oakwood Center Radiation Oncology (hereinafter Oakwood), each a participant to some extent in the medical care of the deceased.7 Plaintiff s wife was diagnosed with ductal carcinoma in situ, a form of breast cancer.8 Treatment for the condition consisted of a lumpectomy performed in January of 2 Defendant Oakwood's Preliminary Objections, ~~ 19-27. 3 Defendant Oakwood's Preliminary Objections, ~~ 28-34. 4 Plaintiffs Complaint, ~~ 1, 3, filed February 9, 2006 (hereinafter Complaint, ~. 5 Complaint, ~ 2. 6 Complaint, ~ 20. Dr. Ditlow allegedly acted as the "agent, employee, worker and/or servant of the defendant Hospital and/or Oakwood." Id. 7 Complaint, ~~ 6-20. On September 21, 2004, Kristy E. Koelsch and John F. Koelsch brought a professional liability action in the Cumberland County Court of Common Pleas, No. 04-4744. Id. at ~ 5. 8 Complaint, ~~ 21,23,26. 2 1999, and radiation therapy.9 Radiation therapy was administered by Dr. Ditlow and conducted at Defendant Oakwood's facilities from February 15, 1999 to April 12, 1999.10 In 2003, Plaintiffs wife was again diagnosed with ductal carcinoma in situ.ll A mastectomy was scheduled for January of 2004, but was not performed until April 26, 2004.12 The lab results from the tissue removed during the mastectomy revealed metastatic ductal carcinoma. 13 In the interim, on December 18, 2003, Plaintiffs wife had gone to the emergency room at Holy Spirit Hospital complaining of "right side pain, right shoulder pain. . . , right upper quadrant discomfort and nausea. . . .,,14 On May 24, 2005, Plaintiffs wife "succumbed to the cancer and died.,,15 Her death was the result of professional negligence. 16 Plaintiff s complaint contains the following claims against Defendant Oakwood: negligence/survival action (Count IV),17 negligent infliction of emotional distress (Count V),18 loss of consortium (Count VI),19 and wrongful death (Count IX)?O With respect to the negligent infliction of emotional distress claim, Plaintiff alleges that he: 9 Complaint, ~~ 21,26,39-40. 10 Complaint, ~~ 39-41,45. 11 Complaint, ~~ 52-53. 12 Complaint, ~~ 54,60-61. 13 Complaint, ~ 61. 14 Complaint, ~ 55. 15 Complaint, ~ 62. 16 Complaint, ~~ 6, 8, 10, 13, 15, 18. 17 Complaint, ~~ 75-76. 18 Complaint, ~~ 77-86. 19 Complaint, ~~ 87-91. 20 Complaint, ~~ 97-98. 3 witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants, and/or the immediate aftermath thereof. As a direct and proximate result thereof, plaintiff suffered sever injuries and damages including, but not limited to emotional distress, depression, stress, nightmares, sleeplessness, headaches, nausea, flashbacks, bodily tremors, panic attacks, rapid heart beat, profound depression. . . ?l Paragraph 14 of the complaint alleges: At all times material hereto, defendant, Oakwood, acted individually and/or by and through its parent corporations, subsidiaries, successors, predecessors, clinics, agents, employees, servants and/or workers, including the other defendants identified herein as well as those other doctors, nurses, technicians and/or therapists identified in its medical records pertaining to plaintiffs, who were then and there acting within the course and scope of their employment, agency and/or authority.22 Defendant Oakwood filed preliminary objections to the complaint asserting that: (I) Plaintiff s claim arising out of corporate negligence should be dismissed with prejudice; (2) Plaintiff s claim for negligent infliction of emotional distress should be dismissed with prejudice; and (3) paragraph 14 of Plaintiffs complaint should be stricken for insufficient specificity pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(3).23 DISCUSSION Preliminary Objections. According to Pennsylvania Rule of Civil Procedure 1028(a) preliminary objections may be filed on the grounds of "failure of a pleading to conform to law or rule of court . . . ; insufficient specificity in a pleading; [or] legal insufficiency of a pleading (demurrer)." Pa. RC.P. 1028(a)(2)-(4). 21 Complaint, ~~ 79-80. 22 Complaint, ~ 14. 23 Preliminary Objections of Oakwood Center Radiation Oncology to Plaintiffs Complaint, filed February 28,2006. 4 In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a complaint, a court must "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 nature of a demurrer should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Powell, 539 Pa. at 489, 653 A.2d at 621. Corporate Negligence. A cause of action for corporate negligence is based on the failure to "uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being. . .. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient." Thompson v. Nason Hospital, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991). To plead corporate negligence, an individual must allege that: I. the hospital deviated from the standard of care; 2. the hospital had actual or constructive notice of the defects or procedures that created the harm; and 3. the hospital's act or omission was a substantial factor in bringing about the harm. Kennedy v. Butler Memorial Hospital, 2006 PA Super. 138, ,-r1O, 901 A.2d 1042, 1045 (2006) (citations omitted). Corporate negligence is an evolving doctrine under Pennsylvania law. See Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997); Oven v. Pascucci, 46 Pa. D. & C.4th. 506 (Lackawanna County 2000). The Pennsylvania Supreme Court has not yet addressed the question of the extension of this type of corporate liability to health care facilities and providers other than hospitals. However, the Pennsylvania Superior Court has extended the corporate negligence doctrine to include health maintenance organizations. Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998). Generally, a preliminary objection in the nature of a demurrer should be granted only when a case is free from doubt. See Bower v. Bower, 531 Pa. 54, 56, 611 A.2d 181, 182 (1992). At this time the facts of record are limited, and in the court's view a 5 dismissal of Plaintiff s claim as it relates to corporate negligence would, at this stage, be premature. Accordingly, Defendant Oakwood's preliminary objection in this regard will be denied. Negligent Infliction of Emotional Distress. As a general rule, in order for an individual to recover on a claim for negligent infliction of emotional distress the individual must be able to provide affirmative evidentiary answers to three questions: (I) 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) (citation omitted). 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." Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 104, 597 A.2d 671, 692 (1991). Moreover, a plaintiff must experience a "sensory and contemporaneous observance" of a "discrete and identifiable traumatic event." Love v. Cramer, 414 Pa. Super. 231, 234, 606 A.2d 1175,1177 (1992) (citations omitted). In the present case, Plaintiff alleges that he "witnessed the aforesaid individual, joint, several and/or alternative negligence and carelessness of the defendants, and/or the immediate aftermath thereof. ,,24 In Plaintiff s brief submitted in opposition to Defendant Oakwood's preliminary objections, Plaintiff argues as follows: In keeping with the foreseeability test set forth in Sinn, it is foreseeable that the plaintiff husband would be emotionally harmed by learning in December of 2003 that his wife's cancer had recurred and that the treatment provided by the 24 Complaint, ~ 79. 6 defendants had failed. Thereafter, he witnessed the aftermath of the defendants' negligent conduct which resulted in his wife's death. Furthermore, in keeping with cases such as Krysmalski, plaintiff husband witnessed his wife's condition deteriorate throughout the weeks and days preceding her death. Upon witnessing this event, Plaintiff husband immediately realized her condition was caused by defendant's negligen[ ce] and suffered emotional injury. Thus, defendants' negligen[ ce] was the proximate cause of plaintiff s emotional distress?5 Although the Superior Court in Krysmalski v. Tarasovich, 424 Pa. Super. 121, 131, 622 A.2d 298, 303 (1993), held that visual observation at the precise moment of impact is not required, the Court retained a focus on "whether the emotional shock was immediate and direct rather than distant and indirect." Furthermore, the facts in Krysmalski indicate that the plaintiff mother was standing in the check-out line at the front of a grocery store, while her children were waiting at the entrance of the store which was visible from inside the store, and although the mother did not see the precise moment of impact, she heard a car crash through the barrier and hit her children. Id. at 130, 622 A.2d at 303. Based on the allegations set forth in the pleadings, Plaintiff has failed to state a cause of action for negligent infliction of emotional distress. Although the complaint alleges that Plaintiff witnessed the negligence of Defendant Oakwood, it does not allege that he observed a traumatic infliction of injury on his wife by Defendant Oakwood. Furthermore, the complaint does not allege an identifiable discrete traumatic event upon which to base a claim for negligent infliction of emotional distress. Consequently, Plaintiff s preliminary objection in this regard will be granted. Specific Pleading. In reviewing a preliminary objection in the nature of a motion for a more specific pleading 25 Plaintiffs Brief in Support of Response in Opposition to the Preliminary Objections of Defendant Oakwood Center Radiation Oncology to Plantiffs Complaint, page 20, submitted September 1,2006. 7 [t ]he question to be decided . . . is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response . . . . A motion for a more specific pleading will be denied when the objecting party may be presumed to have at least as much information as does the pleader. In addition, a preliminary objection based on lack of particularity may, in certain cases, be denied on the ground that discovery is a more appropriate vehicle to resolve the matter. Cline v. Glen Moore Transport, Inc., No. 98-3636 Civil Court, slip opinion, (Cumberland County, November 19, 1999) (citations omitted); see also McAlister v. Bryan, 42 Cumbo L.1. 463 (1993). In the present case, Defendant Oakwood asserts that paragraph 14 of Plaintiff s complaint should be stricken for insufficient specificity of a pleading because it does not provide Oakwood notice as to the nature of the claims or the identity of the actors. The court is of the view that Plaintiff s pleading is adequately specific to enable Defendant Oakwood to prepare a response. Furthermore, the identities of Defendant Oakwood's agents and employees would seem to be a matter as to which Defendant Oakwood would have as much knowledge as Plaintiff. Additionally, individual identification can be obtained in the discovery process without prejudice to Defendant Oakwood. Therefore, for present purposes, Paragraph 14 of the complaint sufficiently identifies the negligent acts and actors to survive Defendant's preliminary objection. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 20th day of October, 2006, upon consideration of Defendant Oakwood Center Radiation Oncology's Preliminary Objections to Plaintiff s Complaint, as well as the oral arguments and briefs submitted on the matter, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant Oakwood's preliminary objection to Plaintiffs claim arising out of alleged corporate negligence is denied; 2. Defendant Oakwood's preliminary objection in the nature of a demurrer to Plaintiff s cause of action for negligent 8 infliction of emotional distress is granted and Count V of Plaintiff s Complaint is dismissed; and 3. Defendant Oakwood's preliminary objection to paragraph 14 of Plaintiff s Complaint is denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Peter M. Villari, Esq. Paul D. Brandes, Esq. Theresa L. Giannone, Esq. Villari, Brandes & Kline, P.C. 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, P A 19428 Attorneys for Plaintiff Thomas M. Chairs, Esq. Dickie, McCamey & Chilcote, P.C. 1200 Camp Hill Bypass Suite 205 Camp Hill, PA 17011 Attorney for Defendant Holy Spirit Health System Lauralee B. Baker, Esq. Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Attorney for Defendant Charles D. Evancho, M.D. Kevin E. Osborne, Esq. Osborne & Rettig, P.C. 126-128 Walnut Street 9 Harrisburg, P A 17101 Attorney for Defendant Richard 1. Ditlow, Jr., M.D. B. Craig Black, Esq. Lauren M. Burnette, Esq. 2040 Linglestown Road Suite 302 Harrisburg, P A 17110 Attorneys for Defendant Oakwood Center Radiation Oncology 10 11 12 13 14