author: TERESHKO, J.,

text:
    Gatling v. Uniroyal Inc.

      George Howard, for plaintiffs.

      Alan Klein, for defendant.
    October 19, 2001
   TERESHKO, J.,

Defendant Uniroyal Inc., in the above captioned matter, filed a summary judgment motion asserting that the plaintiff’s cause of action was barred by the doctrine of res judicata and the statute of limitations. After considering the within motion and the plaintiff’s response thereto, this court granted defendant’s motion. This appeal followed.

The facts established that plaintiffs Edward Gatling Jr. and his wife, Darlene Gatling, filed a complaint in Philadelphia County on December 5, 1988, court term and no. 8812-0133 against defendant Uniroyal Inc. and several other defendants for personal injuries as a result of asbestos exposure. In his short-form complaint, plaintiff alleged that he had been exposed to asbestos during his employment with the Budd Company as a pressman from 1974 through 1980. The complaint also states that he had been diagnosed with asbestosis on or about August 5, 1987. Plaintiff’s medical expert, Dr. Jonathon Gelfand, diagnosed him with bilateral pleural thickening. In his medical request, dated July 23, 1993, Dr. Gelfand opined:

“Pulmonary function testing done on April 29, 1993 revealed a mild restrictive ventilatory defect with mild reduction of the total lung capacity and functional residual capacity and moderate reduction of the vital capacity. In addition, the diffusion capacity is mildly reduced. The patient reports having had one or two cigarettes on his way to the laboratory for the pulmonary function test.... In summary, Mr. Edward Gatling has a history of exposure to asbestos. He has dyspnea on exertion, pleural thickening on his chest x-ray and a mild restrictive defect on pulmonary function testing. In my opinion, Mr. Gatling has pleural thickening caused by exposure to asbestos in the workplace. The pleural thickening is the cause of his restrictive defect which corresponds to his symptoms of dyspnea on exertion. I hold these opinions to a reasonable degree of medical certainty.” See (plaintiff’s answer to preliminary objections of defendant, exhibit C).

In addition, Mr. Gatling testified that he could no longer engage in physical activity without suffering from shortness of breath.

In October of 1993, plaintiff’s case was called for trial. Plaintiff’s action was tried before the Honorable Marvin Halbert on October 5, 1993. Plaintiff contended at the time of trial he was suffering from a compensable asbestos-related injury, as discussed in Giffear v. Johns-Manville Corp., 429 Pa. Super. 327,632 A.2d 880 (1993), aff’d, Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996).

On October 20, 1993, the jury returned a verdict in favor of the defendants. No appeal was taken from that verdict.

Thereafter, Edward Gatling and his wife Darlene Gatling filed a second complaint in Philadelphia County on October 13, 2000, file and no. 0010-1835, against Uniroyal and several other defendants for personal injuries resulting from asbestos exposure. Again, plaintiff contended that he was exposed to asbestos during his employment with the Budd Company from 1973 to the present. The complaint also states that plaintiff was diagnosed on or about July 20, 1999, as suffering from pulmonary asbestosis. As a result of plaintiff’s “second filing,” defendant Uniroyal filed a motion for summary judgment on the doctrine of res judicata and the statute of limitations.

Defendant Uniroyal contends that the plaintiff’s 2000 civil action is precluded by the principle of res judicata. Res judicata pertains to claim and issue preclusion, ruling that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and constitutes for them an absolute bar to a subsequent action involving the same claim, issue, demand, or cause of action. See e.g., Matchett v. Rose, 36 Ill.App.3d 638, 344 N.E.2d 770 (1978); Foster v. Mutual Fire, Marine and Inland Insurance Co., nos. 13, 24 and 74 M.D. appeal docket 1991 (Supreme Court of Pennsylvania, May 22, 1996).

An exception to res judicata has been carved out in asbestos litigation by Marinari v. Asbestos Corp. Ltd., 417 Pa. Super. 440, 612 A.2d 1021 (1992), aff’d, Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996). Marinari established the “separate disease rule” in Pennsylvania, and in doing so the court stated that:

“Plaintiff’s discovery of a nonmalignant, asbestos-related lung pathology, whether or not accompanied by clinical symptoms of impaired pulmonary function, does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.” Marinari, 417 Pa. Super, at 442, 612 A.2d at 1022.

The court in Marinari mled this way because exposure to asbestos can result in a variety of detrimental conditions which may surface at different times. Id. at 447, 612 A.2d at 1024. The court found that if the plaintiff was allowed to have only a single cause of action for nonmalignant, and also all future malignant injury, inequitable results would occur. Id. at 453, 612 A.2d at 1128. These inequitable results could include: First, a windfall recovery for a person who recovers for future malignant conditions, but never contracts it; second, a person who does not recover for malignant cancer, but later contracts it; third, a plaintiff who is awarded less than 100 percent of necessary damages for cancer because the jury was aware that there was a less-than 100 percent chance that the person would contract cancer; and fourth, the generally inequitable awards that will be given out simply because the damages cannot possibly be known. Id. at 451, 612 A.2d at 1126-27.

Under the Marinari separate disease rale, a person may bring separate claims for nonmalignant and malignant cancer without invoking res judicata. Id. at 447, 612 A.2d at 1024. This separate disease analysis is based on the following language in Marinari, “Each of these diseases, i.e., pulmonary asbestosis, asbestos-related pleural disease, lung cancer, and mesothelioma, is recognized as a separate, and distinct disease.” Marinari, 417 Pa. Super, at 448, 612 A.2d at 1025. Following Marinari, legal precedent tells us that a person with nonmalignant, asymptomatic asbestos-related conditions will not have a cause of action. Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 335, 632 A.2d 880, 884 (1993), aff’d, Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996). These asymptomatic, asbestos-related conditions will typically surface as pleural thickening. Giffear has been applied only proactively, therefore claims for asymptomatic, pleural thickening filed before Giffear are still valid. McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125, 1127 n.5 (Pa. Super. 1998).

A further caveat to res judicata has also been recognized in McCauley. Specifically, courts have allowed the litigation of separate claims based on nonmalignant diseases where the original pre-Giffear claim was based on an asymptomatic nonmalignant disease, and the second claim was based on a symptomatic nonmalignant disease. McCauley, 715 A.2d at 1131. McCauley tells us that if the plaintiff has not submitted a prq-Giffear claim for asymptomatic nonmalignant disease, a second symptomatic nonmalignant claim will be allowed. McCauley, 715 A.2d at 1129.

In McCauley, the plaintiff had pursued a personal injury claim in 1993 based on his diagnosis for asymptomatic pleural thickening in 1985, and a later diagnosis for symptomatic pulmonary asbestosis in 1991. McCauley, 715 A.2d 1125. The court held that the symptomatic nature of the second claim, therefore, made it a separate compensable disease. Id. at 1130. This is due to the fact that the 1985 diagnosis was pre-Giffear In a post-Giffear situation, only a symptomatic nonmalignant or malignant may bring suit for damages. The court specifically noticed the plaintiff’s shortness of breath as an indicator of a symptomatic condition. Id. These conditions triggered the statute of limitations for the plaintiff’s suit in that case.

The Supreme Court of Pennsylvania has also held that a person with symptomatic pleural thickening may also bring a later claim for unrelated malignant conditions. McNeil v. Owens-Corning Fiberglas Corp., 545 Pa. 209, 214, 680 A.2d 1145, 1147 (1996). In McNeil, plaintiff brought suit for damages stemming from his asbestos-related pleural thickening, and asbestosis, but prior to trial, plaintiff also developed lung cancer. Id. at 211, 680 A.2d at 1146. In the end the jury actually decided that the plaintiff’s lung cancer was not attributable to asbestos exposure. Id. The McNeil court did not allow a subsequent appeal for a separate lung cancer claim, because a competent jury had already found that they were not entitled to damages, and further action was barred by res judicata. Id. Although the court denied the plaintiffs’ action in McNeil, it is important to understand that the court reinforced the holdings in Marinari and Simmons, by noting that asbestos-related malignant and nonmalignant conditions are actually distinct diseases which may be brought separately, and that actions for asymptomatic pleural thickening will only be permitted to commence when physical impairment actually develops. Id., see also, Simmons, 543 Pa. at 672, 674 A.2d at 237.

In the present case, on two separate occasions, plaintiff Edward Gatling Jr. has been diagnosed with diseases stemming from his inhalation of asbestos fiber during the course of his employment at Budd Company. The first instance was a 1987 diagnosis of symptomatic bilateral pleural thickening, which prompted him to file suit in 1988 against defendant Uniroyal for damages relating to this condition. Evidence was presented at that time that Mr. Gatling was suffering from symptoms relating to that condition. These symptoms included shortness of breath during and after the engagement of physical activity, and a mild restrictive ventilatory defect with mild reduction of the total lung capacity and functional residual capacity and moderate reduction of the vital capacity. (Plaintiff’s mem. exhibit C.)

Plaintiff claims that prior to his 1999 diagnosis for asbestosis and asbestosis-related pleural disease, he has been asymptomatic in connection to his asbestos-related condition. The facts do not warrant that conclusion. For example, prior to his 1993 trial, Dr. Gelfand clearly made a determination that plaintiff did, in fact, suffer from symptoms relating to his asbestos exposure. Once this diagnosis occurred, plaintiff had a compensable cause of action under Giffear.

Under Pennsylvania law, an action to recover damages for injuries that are caused by asbestos exposure must be commenced within two years of the diagnosis. This period of time will begin to run when the injury is known, diagnosed, or can be reasonably ascertained. Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997). This diagnosis will mark the time when the plaintiff could have first maintained a cause of action to a successful conclusion. Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 470 A.2d 482 (1983). Plaintiff was within the two-year time limit when he filed each of his actions.

While the plaintiff is correct is noting that the court in Marinari has proclaimed that asbestos-related pleural disease, pulmonary asbestosis, and lung cancer are separate and distinct diseases, Marinari, 417 Pa. Super, at 448, 612 A.2d at 1025, this court disagrees that the Marinari court intended to permit the recovery for a second nonmalignant asbestos action. Plaintiff fails to understand that while his conditions are separate and distinct, they are identical causes of action also characterized by identical symptoms. The 1999 diagnosis by Dr. Altschuler clearly states that plaintiff’s symptoms relating to that condition included shortness of breath. Shortness of breath, of course, is one of the symptoms that Dr. Gelfand asserted were associated with plaintiff’s 1993 diagnosis. If Mr. Gatling’s subsequent 2000 claim were to be allowed, he would be bringing the same cause of action, namely damages for a symptomatic nonmalignant asbestos-related condition, which contains the same factual basis as his prior cause of action which has been fully tried and decided by a competent jury. It appears that the plaintiff is attempting to recover from essentially the same harm in separate suits.

It is important to note that the separate disease rule was adopted essentially to create a distinction between separate nonmalignant and malignant asbestos-related diseases. Only a narrow exception to pte-Gijfear plaintiffs who had not filed asymptomatic nonmalignant pleural thickening claims, and have subsequently incurred further asbestos-related symptoms has been allowed. See McCauley, supra. Plaintiff falls outside of that exception in this case. “Therefore we today join a majority of jurisdictions which have responded to this difficult issue by holding that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease if and when it develops at a later time.” Marinari, 417 Pa. Super, at 453-54, 612 A.2d at 1028. The purpose of this rule was not to create separate causes of action for plaintiffs at different stages of their symptomatic nonmalignant asbestos-related diseases. “In such actions, recovery can be had in a first action only for a disease which has already manifested itself from the exposure to asbestos and the natural predictable progression, if any, of that disease. If additional injuries from a separate disease manifest themselves in the future, such injuries will support a second action.” Id. at 445, 612 A.2d at 1123.

This court finds the jury decision in plaintiff’s 1988 action is a bar to any further claims for damages resulting from his symptomatic, nonmalignant, asbestos-related lung diseases under the principle of res judicata.

In consideration of the analysis set forth above, this court finds that the defendant’s preliminary objections were properly granted.


source: Caselaw Access Project

author: STRASSBURGER, J.,

license: Public Domain

text:
    Robbins v. Rahimzadek

      C.P. of Allegheny County,
    nos. GD99-015545, GD99-017197, GD98-006733.

      Michael C. George, for plaintiff Robbins.

      Robert L. Garber, for plaintiff O’Connell.

      Patrick J. Loughran, for plaintiff Henderson.
    C. Leon Sherman, for defendant Rahimzadek.

      Steven M. Houghton, for defendant UPMC.

      Giles J. Gaea, for defendant Avolio.

      John W. Zotter, for defendant Awnings by Shuster.

      Jason A. Hines, for defendant Mujumdar.
    August 8, 2001
   STRASSBURGER, J.,

In several cases I have been presented with the question of whether a party should be permitted to discover statistical information regarding another party’s expert. Counsel have submitted comprehensive briefs on the issue.

Clearly such discovery would not be permitted absent an order of court for “cause shown” pursuant to Pa.R.C.P. 4003.5(a)(2). Rule 4003.5(a)(1) sets forth the areas of expert discovery permitted as of right, and then the next subsection, Rule 4003.5(a)(2), authorizes a court to allow additional discovery “upon cause shown.”

The issue thus becomes whether the moving parties have shown cause for an order allowing discovery of statistical information, by a showing that a fair trial is more likely to occur if the movant is privy to statistical information that might show the opposing party’s expert to be biased.

The movants further argue that pursuant to existing case law, at least some of this information may be elicited on cross-examination at trial. Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 626 (Pa. Super. 1999); Tiburzio-Kelly v. Montgomery, 452 Pa. Super. 158, 681 A.2d 757 (1996). The contention is that trials will proceed smoothly if this information were made available during the discovery process, and counsel on cross-examination will not be met with “I don’t know” or “I never compiled that information” or “I don’t keep my records on that basis” answers.

The problem with movants’ position is that it proves too much. If movants are correct that the fairness of the trial, and the smooth flow of the trial, are enhanced by allowing the discovery of statistical information, then that would apply in every case in which an expert testifies. The drafters of Rule 4003.5, which deals with discovery of expert testimony, would have written it in such a way that statistical information would be available to the opposing party. For whatever reason, the drafters did not allow statistical discovery as of right. If I were to allow statistical discovery, I would not be deciding “cause shown” in a particular case, but rather would be re-writing the rule for every case.

Movants’ position may well have merit. However, the argument must be addressed in a comprehensive manner, not on a case-by-case basis. For instance, Rule 212.2(a)(7) contemplates that a pretrial statement contain “such additional information as the court by local rale or special order may require.” The possibility of such a local rule or special order is under consideration.

      . Statistical information includes:
      (1) the number of times an expert has served as the expert witness for the party calling the expert;
      (2) the number of times the expert has been retained by the lawyer, law firm or insurance company that is using the expert;
      (3) the fees the expert has earned through the services provided to the party, lawyer, law firm or insurance company calling the expert;
      (4) the percentage of the expert’s income earned in medical legal work or providing reports for plaintiffs or defendants, or providing reports for this party or insurance carrier; and
      (5) whether the expert has been represented by the attorney or law firm using the expert as a witness.


author: NEALON, J.,

text:
    Zazzera v. Roche

      C.P. of Lackawanna County,
    no. 01-CV-2062.

      Jeffrey M. Kornblau and Lynn Sare Kornblau, for plaintiffs.

      Eugene P. Feeney and Dominic J. Georgetti, for defendants Roche and Delta Medix P.C.

      John Q. Durkin, for defendant Marian Community Hospital.
    December 10, 2001
   NEALON, J.,

The health care defendants in this medical malpractice action have filed preliminary objections seeking to dismiss the claims for punitive damages set forth in the complaint. Since the plaintiffs have alleged that defendant, James J. Roche M.D., erroneously operated on a healthy left carotid artery even though an earlier ultrasound demonstrated that there was critical stenosis of his patient’s right carotid artery, they have adequately averred that Dr. Roche purportedly committed an unreasonable act in reckless disregard of a risk that was readily apparent on preoperative diagnostic testing. For that reason, their punitive damages claim will survive the pleadings stage of this lawsuit. However, the plaintiffs have not alleged that defendants, Delta Medix P.C. and Marian Community Hospital, knew that Dr. Roche was operating on the wrong artery and nevertheless allowed that improper surgery to proceed forward. Inasmuch as the 1997 amendments to the Health Care Services Malpractice Act restrict a health care provider’s vicarious liability for punitive damages to instances where “the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages,” the plaintiffs have failed to state a claim for punitive damages against defendants Delta Medix RC. and Marian Community Hospital. Therefore, the demurrer to plaintiffs’ vicarious liability claim for punitive damages will be granted.

I. FACTUAL BACKGROUND

According to the well-pleaded allegations of the complaint, Metro Dyshuk underwent a cerebral vascular ultrasound on July 23, 1999, which revealed 80 percent stenosis of the right internal carotid artery. As a consequence, defendant, James J. Roche M.D., of defendant Delta Medix P.C., scheduled Dyshuk for a carotid endarterectomy to be performed at defendant Marian Community Hospital on September 30,1999. Despite the fact that the preoperative diagnostic testing disclosed “critical stenosis” of the right carotid artery, Dr. Roche performed “carotid endarterectomy surgery on the left side.” Dyshuk asserts that he has suffered injuries attributable to the unnecessary surgery on his left carotid artery and that, in addition, he has been forced “to undergo a second carotid endarterectomy surgery on the right side with accompanying physical and emotional pain, suffering, morbidity, distress and scarring.” (See plaintiffs’ complaint, ¶¶7-12.)

Dyshuk commenced this malpractice litigation by the filing of a complaint on April 23,2001. In Count I of the complaint, Dyshuk charges Dr. Roche with negligence for scheduling and performing a carotid endarterectomy on the wrong carotid artery and for failing to identify the correct surgical site prior to surgery. (Id., ¶20.) Dyshuk also maintains that Delta Medix is liable for Dr. Roche’s alleged malpractice under the doctrine of respondeat superior. (Id., ¶¶18, 21.) Count II advances a vicarious liability claim against Marian for the actions of its staff and nurses in allowing the incorrect surgery to be performed and for failing to place the carotid ultrasound films in the operating room for use during the operative procedure. (Id., ¶24.) A separate cause of action for corporate liability is set forth against Marian in Count III which avers that the hospital failed to: (1) properly supervise the physicians and staff working at the hospital; (2) implement and enforce compliance with appropriate policies and procedures; and (3) have adequate facilities and equipment available. (Id., ¶28.) Count IV contains a consortium claim on behalf of Mary Dyshuk while Count V asserts an informed consent claim against Dr. Roche. (Id., ¶¶31-33, 35-39.)

In Count VI of the complaint, the Dyshuks seek to recover punitive damages against Dr. Roche, Delta Medix and Marian and allege:

“(41) At all relevant times, the correct site for the carotid endarterectomy surgery was readily and clearly ascertainable by mere reference to the prior clinical symptoms of Mr. Dyshuk and carotid ultrasound films and report generated and held on the premises of Marian Community Hospital; but such findings were willfully and recklessly ignored by the defendants.
“(42) In light of the clinical symptoms presented by Metro Dyshuk, as well as the findings appearing upon ultrasound study and report, the defendants’ scheduling and performance of wrong-sided carotid endarterectomy was outrageous, willful and recklessly indifferent to the health and well-being of Metro Dyshuk and in conscious disregard of the risks of harm to Metro Dyshuk from the performance of wrong-sided surgery, especially in consideration of the age of Mr. Dyshuk.
“(43) By undertaking unnecessary and harmful surgery upon Metro Dyshuk in the face of evidence clearly indicating the correct surgical site, the defendants acted with reckless indifference to the health and well-being of Metro Dyshuk and in conscious disregard of the risks of harm to Mr. Dyshuk.” (Id., ¶¶41-43.)

On May 21, 2001, Dr. Roche and Delta Medix submitted a demurrer to the Dyshuks’ punitive damages claim on the grounds that the allegations of the complaint are insufficient as a matter of law to substantiate such recovery. On June 6, 2001, Marian presented comparable preliminary objections based upon section 812-A(c) of the Health Care Services Malpractice Act, 40 RS. §1301.812-A(c). The preliminary objections were originally scheduled for oral argument on September 27, 2001, but at the request of counsel for the Dyshuks, that argument was postponed to December 5, 2001. On December 4,2001, the parties agreed to submit the preliminary objections for a decision based upon the parties’ memoranda of law and without the need for oral argument.

n. DISCUSSION

(A) Standard of Review

The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Romeo v. Pittsburgh Associates, 787 A.2d 1027, 1030 (Pa. Super. 2001); Oven v. PascuCci, 46 D.&C.4th 506, 511 (Lacka. Cty. 2000). When ruling on preliminary objections, the court must accept as true all well-pleaded allegations set forth in the complaint, as well as all inferences reasonably deduced therefrom. Milton S. Hershey Medical Center v. Commonwealth, 2001 WL 1497665, *2 n.5 (Pa. Commw. November 27, 2001). However, we need not accept as true any conclusions of law, unwarranted inferences, argumentative allegations or expressions of opinion. Allentown School District v. Commonwealth, Department of Education, 782 A.2d 635,638 (Pa. Commw. 2001); Loff v. Granville, 51 D.&C.4th 563, 567 (Lacka. Cty. 2001).

Preliminary objections may only be granted in cases that are clear and free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001); Kilmer v. Connors, 102 Lacka. Jur. 871, 873 (2001). To be clear and free from doubt, it must appear with certainty that the law will not permit recovery by the plaintiff upon the facts averred. Shumosky v. Lutheran Welfare Services of Northeastern Pennsylvania Inc., 784 A.2d 196, 203 (Pa. Super. 2001); Sontag v. Ward, 2001 WL 1464378, *1 (Pa. Commw. November 20, 2001). If there is any doubt as to whether a preliminary objection should be granted, it must be resolved in favor of overruling the objection. Atkinson v. Evans, 787 A.2d 1033, 1034 (Pa. Super. 2001); Constantino v. University of Pittsburgh, 766 A.2d 1265, 1268 (Pa. Super. 2001).

(B) Direct Liability for Exemplary Damages

In the complaint, Dyshuk asserts that Dr. Roche is directly liable for punitive damages based upon his own conduct. Under section 812-A of the Health Care Services Malpractice Act, “[pjunitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others,” but “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 P.S. §§1301.812-A(a), (b). See also, Williams v. Syed, 782 A.2d 1090, 1096 (Pa. Commw. 2001) (in a medical malpractice action, “[njeither mere negligence, nor even gross negligence, shows sufficient culpability to justify a punitive damage award” inasmuch as the “[ajssessment of punitive damages is proper ‘only in cases of outrageous behavior, where defendant’s egregious conduct shows either an evil motive or reckless indifference to the rights of others.’ ”). Willful or wanton conduct requires a state of mind in which the tortfeasor realizes the danger to the plaintiff and disregards it to such a degree that “there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988); Stubbs v. Frazer, 308 Pa. Super. 257, 260, 454 A.2d 119, 120 (1982). Reckless indifference “means that the actor has intentionally done an act of an unreasonable character, in disregard to a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” McClellan v. HMO of Pennsylvania, 413 Pa. Super. 128, 145, 604 A.2d 1053, 1061 (1992), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992). The Superior Court of Pennsylvania recently addressed the degree of recklessness required to support a punitive damages claim in a malpractice action and stated:

“Additionally, in order for conduct to be considered reckless:
“It must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence____The actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent.” Hall v. Jackson, 2001 WL 1506037, *8, ¶31 (Pa. Super. November 28, 2001). (emphasis in original)

The question of whether a physician’s conduct rises to the level of willful, wanton or reckless behavior depends upon the particular circumstances of a case. Pennsylvania case law discussing the parameters of punitive damages claims in the context of malpractice cases reflects that the health care provider’s deviation from the applicable standard of care must be so egregious as to evince a conscious or reckless disregard of a patent risk of harm to the patient. Scott v. Plucknett, 102 Lacka. Jur. 445, 450 (2001); Charles v. Remick, no. 97-CV-956, Mazzoni, J., at p. 11 (Lacka. Cty. October 9, 2001). See e.g., Medvecz v. Choi, 569 F.2d 1221, 1227-30 (3d Cir. 1987) (anesthesiologist who abandoned a patient on the operating room table and reportedly left the operating room for a lunch break without securing a suitable replacement could be liable for exemplary damages to a patient who suffered irreversible paralysis from an anesthesiology complication that developed during his absence); Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 383, 492 A.2d 1382, 1386-87 (1985) (evidence that emergency room physician allowed a GuillainBarre syndrome patient with neurological paralysis to remain crying and immobile on the floor for two hours as the physician repeatedly stepped over him was sufficient to establish the requisite motive and reckless indifference for punitive damages); Scott, supra at 451 (allegations that the defendant obstetrician left the hospital grounds to return to her private office even though she knew that the patient’s labor was not being properly monitored, blatantly ignored the advice of a consulting perinatologist regarding the need for an immediate Cesarean delivery, and inexplicably delayed the commencement of that recommended delivery for more than three hours despite obvious signs of fetal distress on the monitoring strips, adequately averred a claim for punitive damages); Syslo v. Davis, 102 Lacka. Jur. 210, 216-18 (2000) (punitive damages could potentially be awarded to a patient who was verbally berated by medical staff while she was recuperating from negligently performed surgery and addressed as an “alcoholic” and “whore”). Wimer v. Macielak, 47 D.&C.4th 364, 368-69 (Crawford Cty. 2000) (surgeon’s conduct in ignoring patient’s communications about postoperative complications which caused paraplegia could constitute reckless indifference since it manifested a complete “disregard of the attempts to contact him, with knowledge of the postoperative dangers inherent in the plaintiff’s recent back surgery....”). Compare Dean v. Community Medical Center, 46 D.&C.4th 1334, 345-46 (Lacka. Cty. 2000) (patient’s mere allegations of nonfeasance for misdiagnosing a condition, improperly performing a surgical procedure and prematurely discharging the patient from a hospital were insufficient to establish wanton or reckless conduct); Charles, supra (contentions that physician prescribed Phenobarbital at a dosage that was six times greater than the plaintiff’s normal dosage, failed to obtain a drug history from the plaintiff to ascertain prospective adverse reactions vis-a-vis other medications she was taking, and neglected to formulate an accurate diagnosis before medicating the patient “do not rise to the level of outrageous, wanton, or reckless conduct” to warrant a punitive damages claim); Russo v. Connors, no. 00-CV-1522, Mazzoni, J., at p. 10 (Lacka. Cty. November 13, 2001) (dismissing punitive damages claim which was predicated upon averments that physician failed to conduct appropriate testing and consider “well-documented risks and side effects of hormones” before administering hormone replacement therapy for a low testosterone level and loss of libido).

Dyshuk contends that Dr. Roche is potentially liable for punitive damages since he performed “wrong-sided” surgery on a healthy carotid artery rather than a stenosed one. (See plaintiffs’ brief, p. 7.) Although no Pennsylvania appellate court has considered the viability of a punitive damages claim under facts that are comparable to those present in the case sub judice, one federal district in Pennsylvania and appellate courts in other jurisdictions have concluded that operating on the wrong part of a patient’s anatomy, standing alone, does not necessarily justify a punitive damages claim. See Mason v. Dracos, no. 4:CV-93-1139, McClure, J., at pp. 6-7 (M.D. Pa. July 26, 1994) (striking punitive damages claim and holding that “to recover against defendants on their claim of punitive damages, the Masons must prove that the defendants performed surgery on the wrong ankle with either the intent to cause harm or with reckless indifference to the harm likely to flow from their conduct” and “[njothing in the record even remotely suggests that surgery was intentionally performed on the wrong ankle.”); Ciarlo v. St. Francis Hospital Inc., 1994 WL 713864, *4 (Del. Super. 1994) (citing 18 Del. C. §6855 which limits punitive damages in a malpractice case to injuries that are “maliciously intended” and reasoning that “[ijnjuries shall not be considered maliciously intended ... if the intended treatment is applied or omitted by mistake to or for the wrong patient or wrong organ.”); Feister v. St. Francis Hospital, 1 Cal.Rptr.2d 150, 156 (Cal. App. 1 Dist. 1991), review granted, 4 Cal.Rptr.2d 764, 824 P.2d 570 (Cal. 1992), review dismissed, 13 Cal.Rptr.2d 53, 838 P.2d 781 (Cal. 1992) (“[ejven a calamitous mistake, such as operating on the wrong patient or surgically extracting the wrong organ, will not justify exemplary damages unless clear and convincing evidence establishes a culpable state of mind.”). However, the Dyshuks do not simply allege that Dr. Roche operated on the wrong organ; rather, they aver that he knew from the results of Dyshuk’s preoperative testing that his right carotid artery was stenosed, but not withstanding that fact, still proceeded to perform an endarterectomy on the left carotid artery.

Accepting as true the allegations of the complaint and affording Dyshuk the benefit of all reasonable inferences deducible from those averments, it is not clear and free from doubt that Dyshuk cannot possibly recover punitive damages from Dr. Roche. Dyshuk has alleged that Dr. Roche performed an unreasonable act (i.e., an endarterectomy on a healthy artery instead of a stenosed artery) in disregard of a risk that was so easily perceptible from the ultrasound that he may potentially be regarded as having been aware of it. As such, Dyshuk has sufficiently averred that Dr. Roche’s deviation from the standard of care manifested a reckless indifference to the safety of his patient. Accordingly, Dr. Roche’s demurrer to Dyshuk’s punitive damages claim will be denied.

(C) Vicarious Liability for Punitive Damages

The Dyshuks also maintain that Delta Medix and Marian are vicariously liable for punitive damages in this case. In that regard, the Dyshuks do not allege that either Delta Medix or Marian knew of the reckless conduct in question (i.e., surgery on the wrong site) but nonetheless allowed it to occur. On the contrary, Dyshuk merely argues that “[pierforming surgery on the wrong side of the patient’s body certainly can be interpreted by reasonable minds as a conscious indifference to the patient’s rights and well-being.” (See plaintiffs’ brief, p. 11.)

While it is trae that subsections (a) and (b) of section 812-A of the HCSMA are simply a codification of Pennsylvania case law, see SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991), section 812-A(c) reflects a significant departure from the common law governing a health care provider’s vicarious liability for punitive damages. Dean, 46 D.&C.4th at 342-43; Scott, 102 Lacka. Jur. at 451. Under Pennsylvania decisional law, “there is no requirement that an agent commit a tortious act at the direction of his principal, nor must the principal ratify the act, in order for punitive damages to be imposed on him.” Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa. Super. 1998), appeal denied, 556 Pa. 711, 729 A.2d 1130 (1998). Indeed, our Commonwealth has expressly declined to adopt section 909 of the Restatement (Second) of Torts which precludes vicarious liability for punitive damages in the absence of some knowledge or authorization on the part of the principal. See Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 348-49, 499 A.2d 637, 643 (1985), alloc. denied, 514 Pa. 639, 523 A.2d 346 (1987).

However, the 1997 amendments to the HCSMA created new standards for the vicarious liability of health care providers for exemplary damages and state: ment into the respondeat superior equation, a health care provider may not be vicariously liable for exemplary damages unless it had actual knowledge of the wrongful conduct of its agent and nevertheless allowed it to occur.” Dean, 46 D.&C.4th at 344; Scott, 102 Lacka. Jur. at 452. As a result of the HCSMA’s creation of a heightened standard of proof for such vicarious liability, a patient must now aver and establish that the health care principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allowed that conduct to proceed unabated.

“Punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.'’'’ 40 P.S. §1301.812-A(c). (emphasis added) “Hence, with the advent of section 812-A and its injection of a scienter ele-

The Dyshuks’ complaint is devoid of any allegation that Delta Medix or Marian knew that Dr. Roche was operating on the wrong carotid artery and nonetheless allowed that malpractice to take place. In their brief, the Dyshuks rely upon Genteel and other decisions which pre-date 40 RS. §1301.812-A(c) and posit that “[i]t is well-settled that where the misconduct of the defendant supporting an award of punitive damages arises from the acts of the defendant’s agent or employee acting within the course of their employment, punitive damages will be assessed vicariously.” (See plaintiffs’ brief, p. 12.) But following the adoption of the 1997 amendments to section 812-A(c) of the HCSMA, vicarious liability no longer arises automatically in every instance in which an agent engages in wanton or reckless conduct while acting within the scope of the agent’s employment. Such liability may now attach only if the health care provider is aware of the agent’s wanton or reckless care and still permits it to occur. Since the Dyshuks’ complaint neglects to even make such an averment, Delta Medix and Marian cannot possibly be liable for punitive damages under current Pennsylvania law and their preliminary objections will therefore be granted.

ORDER

And now, December 10, 2001, upon consideration of the preliminary objections of defendants, James J. Roche M.D., Delta Medix PC., and Marian Community Hospital, in the nature of a demurrer and motion to strike, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections of defendant, James J. Roche M.D. in the nature of a demurrer to plaintiffs’ claim for punitive damages is denied;

(2) With regard to the allegation in paragraph 20 of the complaint that defendants, James J. Roche M.D. and Delta Medix P.C., acted individually “and through their agents, workers, nurses, clerks and staff” in their treatment of plaintiff, Metro Dyshuk, the plaintiffs shall be afforded 120 days from the date of this order within which to conduct discovery so as to enable plaintiffs to prepare and file a more specific pleading within 60 days of the completion of such discovery by identifying those agents, workers, nurses, clerks or staff who “acted in breach of the requisite standard of care and were negligent, careless and reckless in their examination, scheduling, care and treatment of Metro Dyshuk ....”;

(3) If the plaintiffs fail to so amend paragraph 20 of the complaint within 180 days of the date of this order, the averment regarding unnamed “agents, workers, nurses, clerks and staff” of defendants, James J. Roche M.D. and Delta Medix PC., who were allegedly negligent will be deemed stricken; and

(4) The preliminary objections of defendants, Delta Medix P.C. and Marian Community Hospital, in the nature of a demurrer to plaintiffs’ claims of vicarious liability for punitive damages are granted and plaintiffs’ claims for punitive damages against defendants, Delta Medix P.C. and Marian Community Hospital, are stricken.

      . Delta Medix has also filed a motion to strike paragraph 20 of the complaint and argues that the Dyshuks should be required to identify those individuals, besides Dr. Roche, who purportedly acted as its actual or ostensible agents. (See Delta Medix’s preliminary objections, ¶¶20-24.) See also, Ideas Inc. v. Frankfurt Trust Co., 73 D.&.C.2d 272, 274 (Phila. Cty. 1975); Dinger v. Market Street Trust Co., 7 D.&C.2d 674, 679-80 (Dauph. Cty. 1957). We have previously declined to strike malpractice allegations on the grounds that they are too generalized and have instead afforded the plaintiff a finite period of time to conduct discovery and provide greater specificity with respect to the averments in question. To that end, we have reasoned that “[sjuch an approach is particularly warranted in medical malpractice litigation where health care providers’ handwritten notations, orders or entries are often indecipherable and must be interpreted by their authors before a plaintiff can fully ascertain the health care providers’ diagnoses or prescribed courses of treatment, as well as the bases for the same.” Yanchick v. Tyler Memorial Hosp., 101 Lacka. Jur. 331, 335 (2000). For the same reason, the Dyshuks should be granted the opportunity to have the pertinent records interpreted by the defendants so that those putative agents can be identified via an amended complaint. Such a solution “protects a defendant from dilatory amendments on the eve of trial without resorting to the drastic measure of summarily dismissing general averments ... at an embryonic state of the proceeding.” Id.