source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Connors v. Dawgert

      C.P. of Lackawanna County,
    no. 95 CV 4109.

      Daniel L. Thistle, for plaintiff.

      Jack Hartman, for defendants Dawgert and Zukowski.

      Linda Porr Sweeney, for defendant Mercy Hospital.

      Evan Black, for defendant Geisinger Medical Center.
    September 16, 1998
   MINORA, J.,

— This matter is before the court by way of defendant’s motion for summary judgment. Suit in this medical malpractice case was instituted on August 30, 1995 to recover personal injuries on a cause of action which arose between the dates of May 24, 1985 and June 14, 1985.

FACTS

As alleged in the complaint, minor plaintiff Michelle Connors was bom on April 26, 1985. Relevant to this action, she was initially evaluated by defendants Dawgert and Zukowski at their office on May 24, 1985, following complaints of “twitching,” “feeling poorly,” and “not feeling well.” She was examined by Dr. Dawgert who detected signs of spinal meningitis. She was promptly admitted to Mercy Hospital.

As alleged, no viral cultures were taken at Mercy Hospital, and no medications for treating viral spinal meningitis were initiated. Bacterial cultures were obtained and medication for bacterial spinal meningitis was started.

The plaintiff was transferred to Geisinger Medical Center on May 27, 1985. She received medical care from defendants Ryan and Wallace throughout this hospitalization. Spinal fluid viral cultures were obtained, with a diagnosis of viral meningitis made. Plaintiff alleges that the spinal fluid was not tested specifically for herpes virus, and no anti-viral medication was given.

It is alleged that the minor plaintiff developed static encephalopathy secondary to herpes encephalitis, manifested by partial paralysis, palsy, blindness, psycho-motor delay, seizure disorder, and other conditions. Minor plaintiff is currently a resident of a long-term care facility, requiring continuous nursing care, ongoing medical attention and hospitalizations. She is described as being brain damaged and profoundly retarded.

Presently, the issue before this court is whether plaintiffs have demonstrated a cause of action under either the theory of ostensible agency or corporate negligence.

On or about August 30, 1985, a complaint for a medical malpractice action was filed on behalf of minor plaintiff, Michelle Connors, based on treatment Connors received as an infant in 1985.

(1) Defendant filed motion for summary judgment on May 5, 1998; (2) plaintiff filed a response on May 12, 1998; (3) oral argument was heard before this court on July 20, 1998; (4) the parties have briefed their respective position. This memorandum and order follows.

DISCUSSION

A motion for summary judgment places the burden of proof upon the moving party. The moving party must show that there exists no genuine issue of material fact. Pa.R.C.P. 1035.2. The moving party must be entitled to judgment as a matter of law. Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). “The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. . .. [A]n entry of summary judgment is granted only in cases where the right is clear and free of doubt.” Accu-weather v. Prospect Communications, 435 Pa. Super. 93, 99, 644 A.2d 1251, 1254 (1994) (citations omitted); Pennsylvania State University v. University Orthopedics Ltd., 706 A.2d 863, 867 (Pa. Super. 1998).

Effective July 1, 1996, the New Rules of Civil Procedure 1035.1 through 1035.5 governing summary judgment replace former Rule 1035. The essence of the revision set forth in New Rule 1035.2 is that the motion for summary judgment now encompasses two concepts: first, the absence of a dispute as to any material fact as set forth in Accu-weather and Pennsylvania State University, supra, and second, the absence of evidence sufficient to permit a jury to find a fact essential to a cause of action or a defense. New Rule 1035.2 is explicit in authorizing a motion based upon a record which is insufficient to sustain a prima facie case which in a jury trial would require the issues to be submitted to a jury. In sum, it allows a movant for summary judgment to prove an essential negative.

Applying these revised Rules of Civil Procedure to the case at bar, we shall proceed to the defendant’s motion for summary judgment.

ISSUE I

This court’s initial inquiry focuses on whether Drs. Dawgert and Zukowski were ostensible agents of Mercy Hospital.

Ostensible agency is the designated term for section 429 Restatement (Second) of Torts’ approach to vicarious liability. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 368, 430 A.2d 647, 648 (1980). This theory has been previously utilized in cases involving hospital liability for the negligence of independent contractor physicians. Id. at 368, 430 A.2d at 649. The Capan court identified two factors in which hospitals can be held liable under the ostensible agency theory for physicians. Id.

First, a hospital is liable under this theory when the patient looks “to the institution rather than the individual physician for care.” Id. The Capan court illustrated this point by acknowledging that the modern trend consists of patients seeking hospital services rather than treatment by a particular physician. Id. at 369, 430 A.2d at 649.

The second factor exists where the hospital “holds out” the physician as its employee. Id. The Pennsylvania Superior Court explained that a holding out occurs “when the hospital acts or omits to act in some way which leads a patient to reasonable belief he is being treated by the hospital or one of its employees.” Id. at 370, 430 A.2d at 649, citing Adamski v. Tacoma General Hospital, 20 Wash. App. 98, 579 P.2d 970 (1978).

Mercy argues that no ostensible relationship existed between themselves and Drs. Dawgert and Zukowski, because Connors initially sought treatment from these doctors in their offices rather than at the hospital itself. In addition, Mercy maintains that there is no evidence suggesting Connors considered Drs. Dawgert and Zukowski to be agents of Mercy Hospital.

Despite the fact that Dr. Zukowski was chief of pediatrics at Mercy Hospital at the time, Mercy asserts that he had no control over other physicians’ decisions to admit pediatric patients into the hospital. Finally, Mercy stresses that aside from Dr. Zukowski’s limited role as chief of pediatrics, the only other connection with both doctors and the hospital was the doctors’ admitting privileges there.

In stark contrast, Connors argues that Dr. Zukowski admitted in his deposition that as chief of pediatrics he would oversee both clinical activities and performance of pediatrics. Additionally, Connors stated that because Mercy Hospital is a corporation and as such the hospital can only act through its officers, directors or agents. Connors claims that Dr. Zukowski’s position as chief of pediatrics clearly indicates that he was an agent of Mercy Hospital.

In the instant case, we find that there is an unresolved issue of fact as to whether Mercy held out Dr. Zukowski as its employee based on his status as chief of pediatrics. Additionally, we find that is unclear as to whether Dr. Dawgert’s action of admitting Connors to Mercy Hospital to be treated by his partner Dr. Zukowski constituted an agency relationship. Since there are genuine issues of material fact as to the relationship between Drs. Dawgert and Zukowski and Mercy Hospital, summary judgment is clearly not appropriate in this matter.

ISSUE II

This court will now address the second issue whether the doctrine of corporate negligence is applicable. Under this theory, “a corporation, specifically, a hospital, can be held directly liable for negligence.” Welsh v. Bulger, 548 Pa. 504, 512, 698 A.2d 581, 585 (1997). The Pennsylvania Supreme Court first defined this concept in 1991 when it stated that:

“Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed to the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty, which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.” Thompson v. Nason Hospital, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991).

In 1997, the Pennsylvania Supreme Court relied on this earlier Thompson decision and reiterated the specific duties a hospital has as the following:

“(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients.” Welsh, supra at 512, 698 A.2d at 585, citing Thompson v. Nason Hospital, supra at 339-40, 591 A.2d at 707.

Additionally, the Pennsylvania Supreme Court announced that a cause of action for corporate negligence “arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital employees.” Moser v. Heistand, 545 Pa. 554, 560, 681 A.2d 1322, 1326 (1996).

By applying the doctrine of corporate negligence, the Pennsylvania Supreme Court declared that in order to establish this claim, “a plaintiff must show that the hospital had actual or constructive knowledge of the defect or procedures that created the harm.” Welsh, supra.

In concluding its analysis of corporate negligence, the Welsh court addressed the type of evidence necessary to prove this cause of action. The Welsh court stated that “unless a hospital’s negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff.” Id.

Mercy’s contention against allegations of corporate negligence is twofold. First, Mercy suggests that there is no criticism of Dr. Zukowski in his role as chief of pediatrics. However, Mercy fails to acknowledge that one of Connors’ experts found that because Dr. Zukowski was chief of pediatrics he should have been aware of the hospital’s lack of available consultants. Second, Mercy claims that no expert testimony was presented which criticized the hospital for lacking adequate facilities. Once again, Mercy recognized that an expert witness for Connors concluded that Mercy did lack adequate facilities to care for a child in the above-mentioned condition. However, Mercy maintains that this expert was not criticizing the hospital for lacking these facilities but rather was criticizing the physician for not transferring the child to another hospital.

Conversely, Connors claims these experts have found two distinct causes of action of corporate negligence against Mercy Hospital.

Initially, Connors argues that experts are critical of Mercy Hospital itself for permitting an infant this ill to be cared for in a pediatric ward. Connors asserts that this expert opinion is directed against the hospital itself and thus complies with the requirements set forth in Thompson, supra, and Welsh, supra, which hold that a hospital can be directly liable if the appropriate criticism is contained in an expert report.

Furthermore, Connors contends that their expert criticizes Dr. Zukowski in his role as chief of pediatrics for permitting a child to remain at Mercy even though Mercy did not have appropriate consultants or appropriate facilities to care for this critically ill infant.

In light of the above facts, as well as the legal elements necessary for a cause of action under corporate negligence, we find that there are genuine issues of material fact which exist. The issues consist of expert testimony suggesting that Mercy deviated from an accepted standard of care and that deviation was in fact a substantial factor in causing Connors harm. If a jury chose to believe that expert’s testimony, the necessary elements of the causes of action for corporate negligence would be met. Therefore, viewing the evidence in light most favorable to the non-moving party and accepting the facts as averred in Connors’ brief, Mercy’s motion for summary judgment is denied.

CONCLUSION

Based upon the above reasoning, the defendant, Mercy Hospital’s, motion for summary judgment on the theories of ostensible agency and corporate negligence is denied. An appropriate order follows.

ORDER

And now, to wit, September 16, 1998, it is hereby ordered that the defendant, Mercy Hospital’s, motion for summary judgment is denied.


author: NICKLEACH, R.J.,

text:
    Heginbotham v. Bowser & Tarr Inc.

      C.P. of Armstrong County,
    no. 1996-0018-CIVIL.

      James G. Gordon, for plaintiffs.

      Frederick N. Egler Jr. and Edward L. Russakoff, for defendants.

      Kenneth S. Mroz, for additional defendant.
    August 21, 1997
   NICKLEACH, R.J.,

— Before the court for disposition are motions for summary judgment filed by all of the parties in this case. Initially, additional defendant Dana Corporation t/d/b/a Weatherhead filed its motion for summary judgment on the ground of spoliation of the evidence. Next, defendants Bowser & Tarr Inc. and Newman James Tarr, filed a motion for summary judgment claiming that B & T is plaintiff Donald Heginbotham’s statutory employer and that Tarr is a fellow employee. As such, plaintiffs’ suit against them is barred pursuant to the Workers’ Compensation Act, 77 Pa.C.S. §481. Finally, plaintiffs filed a cross-motion for summary judgment claiming that Donald Heginbotham was an employee of Transport Leasing/Contract Inc. (TLC). The motion asks the court to render judgment that Heginbotham was not the employee of B & T. The motions have been argued and briefs filed by all parties and the matter is now ready for decision.

FACTUAL BACKGROUND

On May 15,1995, plaintiff Donald W. Heginbotham, while off-loading liquid sugar from a tanker truck at a facility in Williamsport, Pennsylvania, was injured when a high-pressure hydraulic hose ruptured and spewed hydraulic fluid into his eyes.

The tanker truck was owned and serviced by defendant B & T. Heginbotham was the exclusive driver of the truck which hauled liquid sugar primarily for Allen Sugar Company in Cleveland, Ohio, but on occasion for other companies as well. Initially, Heginbotham was employed by B & T, but on April 5, 1993, B & T entered into a lease agreement with TLC whereby B & T’s drivers (including Heginbotham) became employees of TLC and were then leased back to B & ¡^

The deposition testimony indicates that TLC paid the drivers and deducted federal and state withholding taxes and remitted the same to the respective governments, paid and remitted social security taxes, unemployment insurance taxes, workmen’s compensation insurance and also provided the drivers with optional health insurance, life insurance, retirement plans and flexible spending accounts. TLC did not direct the employees in the day-to-day driving operations of the trucks. In his deposition, Gary E. Ankerfelt, president of TLC, was unable to state who directed the day-to-day activities of Heginbotham. Heginbotham testified he was on his own concerning his hauling of liquid sugar and was not directed by B & T. Heginbotham testified that it was he who secured the Allen Sugar account and B & T’s only connection was that it owned and serviced the truck which Heginbotham drove. Heginbotham indicated that he planned the routes which he took, the days which he drove, and other matters involving his day-to-day operations. If Allen Sugar Company had a load to carry, the company contacted him directly, or if the company couldn’t reach him, it would leave a message at B & T’s garage. If Heginbotham did not have a return load following a transport for Allen Sugar, he would contact other companies to arrange for a return haul, and if he could not find one, he would return empty.

The accident in this case occurred when Heginbotham was off-loading liquid sugar at an Allen Sugar plant in Williamsport, Pennsylvania. He was making adjustments to another hose attachment when the hydraulic hose ruptured. He was immediately hospitalized in the Williamsport area. Defendant Tarr, an employee of B & T, was dispatched to the scene in a pickup truck to complete the off-loading and return the truck to the garage. Tarr had installed the hose on the truck just prior to Heginbotham’s trip to Williamsport. Tarr replaced the ruptured hose and completed the off-loading procedure. While in Williamsport, Tarr visited Heginbotham in the hospital and apologized to Heginbotham indicating that he (Tarr) had put the wrong type of hose on the truck. The ruptured hose was thrown in the back of B & T’s pickup truck which returned to the garage. The hose was subsequently discarded without being identified, photographed, inspected or tested.

Plaintiffs’ amended complaint alleges negligence and spoliation against defendants, and product liability and breach of warranty against Weatherhead. Defendants assert product liability and breach of warranty against Weatherhead as an additional defendant.

DISCUSSION

Motions for summary judgment are governed by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

The party moving for summary judgment has the burden of proving that no genuine issue of material fact exists. The nonmoving party must adduce sufficient evidence on the issues essential to his case and on which he bears the burden of proof such that the jury could return a verdict in his favor; failure to do so establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Weatherhead’s Motion

Weatherhead asserts in its motion that the loss of the evidence upon which plaintiffs base their claim, namely the ruptured hose, requires summary judgment in its favor.

The leading case on spoliation as a ground for summary judgment is Roselli v. General Electric Company, 410 Pa. Super. 223, 599 A.2d 685 (1991). In that case, plaintiff suffered severe burns when the glass carafe to her General Electric coffee maker shattered in her hand. The trial court granted summary judgment on the ground that the fragments from the glass carafe which were lost, were unavailable for inspection. Thus, the source of the carafe could not be determined. The Superior Court affirmed adopting the public policy rationale of Martin and Greenspan v. Volkswagen of America, No. 88-8261, 1989 WL 81296 (E.D. Pa. July 13, 1989):

“The defendant has been deprived of the opportunity to have an expert examine the car and to testify, if appropriate, that a defect did not cause the Audi to malfunction. Therefore, the plaintiffs should not be permitted to proceed without producing the vehicle. . . .

“To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff’s attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.” Roselli v. General Electric Company, supra at 228, 599 A.2d at 687-88.

The Commonwealth Court in Schroeder v. PennDOT 676 A.2d 727 (Pa. Commw. 1996), alloc. granted, 546 Pa. 672, 685 A.2d 549 (1996), followed Roselli in affirming entry of summary judgment in favor of the defendants. In Schroeder, plaintiff’s decedent died when the truck he was driving crossed the highway, struck an embankment, overturned and burned. The truck’s charred remains where taken to a salvage facility. Despite requests from plaintiff’s counsel not to salvage or destroy the vehicle, the truck was salvaged and not available to the defendants. The trial court granted summary judgment relying on Roselli and holding that when a plaintiff brings an action for injury as the result of a defective product, his failure to produce the product renders summary judgment appropriate because the defendant is precluded from examining the product which is a necessary part of its preparation of a defense. On appeal, the plaintiff attempted to distinguish Roselli by pointing out that his case, unlike Roselli, alleged a design defect common to all trucks of the same make and model as decedent’s truck. Thus, the need to examine the actual truck was not as great because all makes and models contained the same defect. Plaintiff argued that defendants were not prejudiced in preparing their defense. The Commonwealth Court refused to distinguish Roselli and held that it was immaterial that the allegation was a defective design of the product. In so holding, the court stated:

“Whether it is alleged that a single product contained a defect or that a defect existed in an entire line of products, the inability to examine the product which is alleged to have caused the injury precludes a defendant from presenting the standard products liability causation defenses. . . . Accordingly, we conclude that appellees were severely prejudiced by the destruction of decedent’s truck.” Id. at 730.

In the most recent spoliation case, O’Donnell v. Big Yank Inc., 696 A.2d 846 (Pa. Super. 1997), the Superior Court took a position contrary to the Commonwealth Court’s holding in Schroeder and limited the holding in Roselli.

In O ’Donnell, plaintiff was injured when he contacted electrical voltage and was burned. He alleged that his garments, manufactured and sold by defendants, ignited and melted, producing a hot tarry substance which contacted his skin. Plaintiff alleged that the pants were defective when sold. The clothes which the plaintiff wore had been discarded and were unavailable for inspection by the defendants. The trial court, relying on Roselli, granted summary judgment partly on the spoliation theory that defendants could not pursue their defenses because of the loss of the product. The Superior Court reversed.

The Superior Court held that the trial court erred in interpreting Roselli as holding that whenever a key piece of evidence is destroyed and defendant is unable to examine the product, the spoliation doctrine prevents testimony concerning the product and that summary judgment must be entered. That interpretation, the court said, was too broad. In Roselli, the plaintiff was unable to offer evidence in support of her claim of defect. Because she could not do so, summary judgment was warranted.

In O’Donnell, the court determined that where the injured party is not claiming a defect particular to the item, but rather a defect which occurs in all like products manufactured and sold by the defendants, i.e. where an examination of the specific product is not necessary to determine the validity of the claim, then summary judgment is not required when the specific article cannot be produced. The court went on to hold that plaintiffs could prove their case with the introduction of like products manufactured by the defendant.

In the court’s opinion, Roselli v. General Electric Company, supra, even with the limited interpretation given to it by the court in O’Donnell v. Big Yank Inc., supra, is controlling in the case at bar. In the present case, plaintiffs are unable to offer evidence in support of their claim that the hydraulic hose was defective. Unlike O ’Donnell, plaintiffs do not claim that the defect occurs in all like products manufactured by the defendants. Instead, plaintiffs claim a defect in the specific hose attached to the hydraulic pump. Consequently, unlike O’Donnell, plaintiffs cannot prove the defect by utilizing other hoses manufactured by Weatherhead. Here, as in Roselli, examination of the specific product is necessary to determine the validity of plaintiffs’ claim. Since plaintiffs cannot otherwise prove the ruptured hose was defectively manufactured and sold, the absence of the hose renders summary judgment appropriate in this case. Roselli, supra.

Defendants’ Motion for Summary Judgment and Plaintiffs’ Cross-Motion for Summary Judgment

Both defendants and plaintiffs seek a summary judgment as to the employer of Heginbotham at the time of the accident. We have reviewed the lease relied upon by plaintiffs and the deposition testimony of the various witnesses. We conclude that a material issue of fact exists as to who, if anyone, was Heginbotham’s employer on the date of the accident. See JFC Temps Inc. v. W.C.A.B. (Lindsay), 545 Pa. 149, 680 A.2d 862 (1996); Wilkinson v. K-Mart, 412 Pa. Super. 434, 603 A.2d 659 (1992); Red Line Express Co. Inc. v. W.C.A.B. (Price), 138 Pa. Commw. 375, 588 A.2d 90 (1991), alloc. denied, 529 Pa. 654, 602 A.2d 863 (1992). Therefore, defendants’ motion for summary judgment and plaintiffs’ cross-motion for summary judgment will be denied.

An appropriate order will be entered.

ORDER

And now, to wit, August 21,1997, after consideration of the arguments and briefs of counsel and for the reasons set forth in the attached opinion, it is ordered, adjudged and decreed that the motion for summary judgment filed on behalf of Dana Corporation t/d/b/a Weatherhead, a foreign corporation, be and the same hereby is granted and judgment is hereby entered in favor of the defendant Dana Corporation t/d/b/a Weatherhead, a foreign corporation.

It is further ordered, adjudged and decreed that the motion for summary judgment filed on behalf of defendants Bowser & Tarr Inc. and Newman James Tarr be and the same hereby is denied.

It is further ordered, adjudged and decreed that plaintiffs’ cross-motion for summary judgment be and the same hereby is denied.

      . In its motion, Weaterhead asserts that the designation is incorrect and should instead be Dana Corporation and Boston Weatherhead Division of Dana Corporation.

      . The lease named R. T. Jacques Trucking as the lessee. The parties agree that B & T, as a partnership of Harold Bowser and William Tarr Sr., signed the agreement t/d/b/a R. T. Jacques Trucking, and that this agreement was in force on the date of the accident. A later lease back-dated to April 5, 1993 named B & T as lessee. The agreements otherwise are the same.

      . Butterfield v. Giuntoli, 448 Pa. Super. 1, 670 A.2d 646 (1995); First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 653 A.2d 688 (1995).

      . Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996); see also, Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994) (the nonmoving party may not rest upon the averments contained in its pleadings, but must demonstrate that there is a genuine issue for trial).

      . Plaintiffs alleged that the garment was constructed of a highly flammable material which was easily ignited and which melted into a hot tar-like substance, a defect common to all similar types of garments manufactured by the defendant. The court observed that plaintiff could seek to prove her case by introducing like products manufactured by the defendants and the defense also could use like products to show its flammability (or lack thereof) in different situations.

      . Paragraph 24 of plaintiffs’ amended complaint defines “product” as “the hydraulic hose which ruptured.”


author: MUNLEY, J.,

text:
    Rosser v. Feldman
    C.P. of Lackawanna County,
    no. 95-CIV-1181.

      Malcolm L. MacGregor, for plaintiffs.

      Richard K. Hodges, for defendant Montrose Hospital.

      Donald C. Ligoria, for defendant Feldman.

      Lara J. Endler, for defendant Kerr.
    July 31, 1998
   MUNLEY, J.,

— Before the court is the defendant’s motion for a protective order. The defendant is Montrose General Hospital; and the plaintiffs are Judith Rosser and Lloyd Rosser. The parties have briefed their respective positions, and oral argument was heard on May 27, 1998.

The defendant seeks a protective order from providing certain documents requested by the plaintiffs’ supplemental request for production of documents. Plaintiffs’ supplemental request included, inter alia, the following paragraphs:

“(8) Please produce any and all documentation regarding Montrose General Hospital’s withdrawal from the joint commission including, but not limited to, any and all letters of deficiency from the last joint commission inspection prior to defendant, Montrose General Hospital’s, withdrawal from the joint commission.

“(9) Please produce a copy of the joint commission’s last report relative to the Montrose General Hospital.

“(10) Please produce any and all reports from the Department of State of the Commonwealth of Pennsylvania regarding inspections at Montrose General Hospital from 1990 through 1994.

“(11) Please produce any and all documents regarding the suspension and/or revocation of Montrose General Hospital’s mammography privileges as referenced in the designated witness deposition at pages 54 and 55.”

The defense contends that the above-mentioned requests are protected under the Peer Review Protection Act, 63 P.S. §425.1 et seq., and that the information sought by the plaintiffs is privileged. The plaintiffs submit that the requests at issue are not protected by the Act, and that the defendant’s motion should be denied. Plaintiffs further argue that even if the documents are not discoverable by virtue of the Peer Review Act, the defendant waived such privilege.

We initially address the issue of waiver. The plaintiffs argue that Montrose Hospital waived its right to object to the requests at issue where the hospital “answered prior discovery and deposition inquiries without objection, and subsequently filed a timely response devoid of any peer review objection representing that the information would be provided.” See plaintiffs’ brief dated March 13,1998. We disagree. Aprivilege may be waived if a party to the confidential information disclosed the information to a third party. See Sprague v. Walter, 441 Pa. Super. 1, 656 A.2d 890 (1995). Instantly, the record is devoid of any actual disclosure of information. Without such disclosure, any privilege provided by the Peer Review Protection Act, 63 PS. §425.1 et seq. remains unaffected and intact. The Act provides in relevant part as follows:

“Confidentiality of review organization’s records

“The proceedings and record of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a health care provider arising out of the matters which are the subject of evaluation and review by such committee . . . Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such committee . . . .” 63 P.S. §425.4. (emphasis added)

“‘Peer review’ means the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including . . . the compliance of a hospital . . . with the standards set by an association of health care providers ....

“‘Review organization’ means any committee engaging in peer review ... to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care . . . .” 63 P.S. §425.2. (emphasis added)

The law in Pennsylvania is clear that due to the broad scope of discovery, a party asserting a limitation thereto has the burden of establishing that limitation. Fulmer v. Baird, no. 94 CV 000393 (Bradford County, filed March 13, 1998) (citing Mazzucca v. Methodist Hospital, 47 D.&C.3d 55 (1986); 6 Standard Pa. Practice 2d §34:22). After a thorough review of the matter sub judice, we find that the defendant established that paragraphs 8 and 9 are protected under the Peer Review Act. We further find that the joint commission is a review organization as intended by the Act, and any documents relating to the defendant’s voluntary withdrawal from the commission and/or letters and reports of the commission’s inspections of Montrose Hospital are not subject to discovery. See O’Neill v. McKeesport Hospital, 48 D.&C.3d 115 (Allegheny Co. 1987) (The Honorable AJ. Wettick determined that findings, recommendations, evaluations or opinions of the Joint Commission on Accreditation of Hospitals, generated by health care providers on behalf of the commission, with respect to any review of the practices and procedures governing treatment involving anesthesia and surgery within the participating hospital, are records of a review committee within the meaning of the Peer Review Protection Act); see also, 7 Standard Pa. Practice 2d §36:9. The joint commission is an independent commission whose function is to establish standards for the operation of hospitals and to evaluate and to recognize compliance with those standards by the issuance of certificates of accreditation. O’Neill, supra. Moreover, Montrose Hospital was a voluntary and fee-paying member of the private organization before the defendant withdrew its membership from the commission.

We are not persuaded by the plaintiffs’ argument that they are entitled to the documents requested in paragraphs 8 and 9 pursuant to Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). The court is in agreement that Thompson holds, inter alia, that a hospital would be subject to corporate liability if it failed to uphold a proper standard of care, if it had actual or constructive knowledge of the defect or procedures which created the harm, and if its negligence was a substantial factor in bringing about harm to the patient. Id. However, Thompson does not mention the applicability of the Peer Review Protection Act and/or its applicability to joint commission documents. Therefore, even though the plaintiffs may seek a corporate liability claim against Montrose Hospital, they must pursue the claim without the use of privileged and confidential material.

With regard to the documents sought in paragraphs 10 and 11, the court finds that the defendant has not met its burden of establishing the privilege afforded by the Peer Review Protection Act. Paragraphs 10 and 11 seek documents regarding inspections by the Department of Health of the Commonwealth of Pennsylvania and the revocation of Montrose Hospital’s mammography privileges by the department. We find that the Department of Health cannot be considered a professional health care provider within the meaning of the statute and that the Department of Health did not engage in “peer review,” see supra, as defined in the Act. See McClellan v. HMO PA, 546 Pa. 463, 686 A.2d 801 (1996); see also, Sanderson v. Frank S. Bryan M.D. Ltd., 361 Pa. Super. 491, 522 A.2d 1138 (1987) (purpose of bill is to provide protection to those who give testimony to peer review organizations). Pursuant to the statute, peer review is the procedure for evaluation conducted by professional health care providers, who are licensed to practice and operate in the health care field.

“ ‘Professional health care provider’ means individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:

“(1) A physician.

“(2) A dentist.

“(3) A podiatrist.

“(4) A chiropractor.

“(5) An optometrist.

“(6) A psychologist.

“(7) A pharmacist.

“(8) A registered or practical nurse.

“(9) A physical therapist.

“(10) An administrator of a hospital, a nursing or convalescent home, or other health care facility.

“(11) A corporation or other facility operating a hospital, a nursing or convalescent home or other health care facility.” See 63 PS. §425.2.

“Concerning the language at issue, of the 11 listed terms included in the statute’s definition of professional health care provider, nine are titles of individual health care workers. The remaining two are an administrator, and a corporation or other organization operating or administering a ‘hospital, a nursing or convalescent home, or other health care facility.’ 63 P.S. §425.2. Clearly, the list of health care providers set forth in section 425.2 includes only (1) immediate or direct health care practitioners, and (2) administrators of medical facilities, be they individuals or organizations.” Id.

Following the rationale of our Supreme Court in McClellan, the Department of Health is a professional health care provider if the department is either a direct health care provider or an administrator of a medical facility. See McClellan (an IPA model HMO is not an administrator of a health care facility since it has no facilities or equipment and thus cannot oversee patient care within its walls). Clearly, the Department of Health is neither a provider nor an administrator within the meaning of the Act. Therefore, the defendant’s motion for a protective order with regard to paragraphs 10 and 11 must be denied.

The court is not persuaded by the defense’s contention that the Department of Health documents and records are protected by the Right To Know Act, 65 P.S. §66.1 et seq., claiming that the Department of Health documents are not “public records” and are therefore shielded from inspection. The intent of the Right To Know Act is to assure availability of government information to citizens of the Commonwealth by permitting access to official information. Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa. Commw. 1995). Further, broad construction is given to the initial determination of whether a document is a public record to be tempered as an opposing party brings into play enumerated exceptions. Weaver v. Department of Corrections, 702 A.2d 370 (Pa. Commw. 1997).

Section 2 of the Right To Know Act provides as follows:

“Every public record of an agency shall, at all reasonable times, be open for examination and inspection by any citizen of the Commonwealth of Pennsylvania.”

65 P.S. §66.1 et seq. defines a public record in pertinent part as:

“[A]ny minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.”

To establish that the “minute, order or decision” is a public record, persons seeking the information must establish that the requested material: (1) is generated by an agency covered by the Right To Know Act; (2) is a minute, order or decision of the agency or an essential component in the agency arriving at its decision; (3) fixes personal or property rights or duties of any person or group of persons; and (4) is not protected by statute, order or decree of court. See Nittany Printing & Publishing Co. Inc. v. Centre County Board of Commissioners, 156 Pa. Commw. 404, 627 A.2d 301 (1993). We find that the documents sought in paragraphs 10 and 11 satisfy these conditions and therefore constitute public records. The Department of Health is clearly an agency of the Commonwealth. See 65 P.S. §66.1(1). Further, documents regarding inspections by the Department of Health were essential components in the department’s decision to revoke Montrose Hospital’s mammography privileges. Moreover, there is no evidence that the documents are protected by statute, order or decree of court.

We are not persuaded by the defense’s contention that the records fall within the “investigation” exception of the definition public record, which states that a public record “shall not mean ... a result of an investigation undertaken by an agency in the performance of its official duties.” See 65 P.S. §66.1(2). Instantly, the record reflects that the Department of Health records sought by the plaintiffs resulted from the department’s routine inspections of the hospitals operating within the Commonwealth. The law is clear that courts have long rejected the notion that an agency’s routine performance of its duties, if in any sense “investigative,” shields its activities from the Right To Know Act. Legal Capital LLC v. Medical Professional Liability Catastrophe Loss Fund, 702 A.2d 869 (Pa. Commw. 1997). Plaintiffs are therefore entitled to inspect the records described in paragraphs 10 and 11 of their supplemental request for production of documents.

For the aforementioned reasons, the defendant’s motion for protective order is granted with regard to paragraphs 8 and 9 and denied with regard to paragraphs 10 and 11. An appropriate order follows.

ORDER

Now, to wit, July 31, 1998, the court having considered defendant Montrose Hospital’s motion for a protective order, the briefs and argument of able counsel and for the reasons set forth in the accompanying opinion, it is hereby ordered as follows:

(1) Defendant Montrose Hospital’s motion for protective order is granted in part and denied in part;

(2) Defendant’s motion for protective order with regard to paragraphs 8 and 9 are granted; and

(3) Defendant’s motion for protective order with regard to paragraphs 10 and 11 are denied.


author: CORBETT, J.,

text:
    Burgette v. Selective Insurance Co.
    C.P. of Lackawanna County,
    no. 96-CV-824.

      Christina T. Novajosky, for plaintiff.

      James Wilson, for defendant.
    July 17, 1998
   CORBETT, J.,

BACKGROUND

Before the court is a motion for judgment on the pleadings filed by the defendant, Selective Insurance Company. The facts giving rise to this action are as follows: On or about February 14, 1992, Edna Burgette was insured by defendant/insurer when she was involved in an automobile accident and was seriously injured. As a result of this injury, plaintiff is entitled to first party medical benefits.

By letters dated July 28, 1993, defendant/insurer advised Dr. Kevin Madden, Dr. Donald Manning of JHU Anesthesia Pain Management, Moses Taylor Hospital, Scranton Rehabilitative Services Inc., MRI Imaging Center, Northeastern PA Imaging, Dr. Romas Dovydaitis, Daily Resources Ltd., and Steindel, Malloy, Cronkey & Chiavacci Ltd., plaintiff’s health care providers, that it would not pay for any medical treatment dated four months or more after her automobile accident. Defendant/insurer based this decision on a peer review performed by MediMax Inc.

Plaintiff has filed a second amended complaint asserting that defendant/insurer has not paid her first party medical benefits as provided for in the automobile insurance policy. In her complaint she sets forth counts sounding in breach of contract, bad faith, and wrongfully utilizing a PRO to deny first party medical benefits. On March 31, 1998, defendant filed the instant motion for judgment on the pleadings. Both parties have briefed their respective positions and this court heard argument on Monday, July 13, 1998. This matter is now ripe for disposition.

DISCUSSION

A motion for judgment on the pleadings may be filed “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. § 1034(a). “The court shall enter such judgment or order as shall be proper on the pleadings.” Pa.R.C.P. § 1034(b). “A motion for judgment on the pleadings is in the nature of a demurrer in which all of the nonmovant’s well-pleaded allegations are viewed as true, but only those facts specifically admitted by the nonmovant may be considered against him.” Felli v. PennDOT, 666 A.2d 775, 776 n.2 (Pa. Commw. 1995). (citations omitted) Defendant filed the instant motion arguing the plaintiff does not have standing to bring the instant suit. The Pennsylvania Supreme Court summarized the concept of standing as follows:

“[A] person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be ‘aggrieved’ to assert the common interest of all citizens in procuring obedience to the law. . . .

“The requirements of the formulation of the standing test are that an interest be ‘substantial,’ ‘direct,’ ‘immediate’ and ‘not a remote consequence of the judgment.’ An evaluation of the presence of these elements will determine whether the interest asserted renders a litigant ‘aggrieved.’ . . .

“[T]o satisfy the ‘substantial,’ interest requirement, ‘the (plaintiff’s) interest must have substance — there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law.’ . . .

“The additional requirement, that the interest be ‘direct,’ ‘simply means that the person claiming to be aggrieved must show causation of the harm to his interest by the matter of which he complains.’ . . . Finally, the remaining requirements, that the interest be ‘immediate’ and ‘not a remote consequence,’ reflect a single concern:

“Here [the] concern is with the nature of the causal connection between the action complained of and the injury to the person challenging it. . . . However, it is clear that the possibility that an interest will suffice to confer standing grows less as the causal connection grows more remote. . . .” Kuropatwa v. State Farm Mutual Automobile Insurance Co., 29 D.&C.4th 494, 497-98 (1995) (quoting Wm. Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975)).

Plaintiff alleges in her complaint that the defendant/insurer wrongfully stopped payment of her medical bills that arose as a result of her automobile accident on February 14, 1992. Plaintiff argues that defendant/insurer wrongfully relied upon a PRO recommendation that determined the causal relationship of plaintiff’s medical bills, rather than whether they were reasonable and necessary and stopped payment based upon this determination.

In Pierce v. State Farm Insurance Company, 27 D.&C.4th 464 (1994) the Honorable Judge Cottone of this honorable court held that “[sjection 1797(b) of the MVFRL allows an insurer to retain a PRO to ascertain only that treatment conforms to professional standards of performance and is medically necessary.” Id. at 469. “The insurer may not use the PRO to determine whether or not the medical treatment was causally related to a particular accident.” Id. (citations omitted)

Accepting the facts as alleged in plaintiff’s second amended complaint, Selective Insurance Company attempted to use the PRO process to make a causation determination without express statutory authority allowing it to do so. Selective Insurance Company subsequently used that same causation determination to deny first party medical benefits to the plaintiff.

The cases cited by the defendant/insurer, Kuropatwa v. State Farm Mutual Automobile Insurance Co., 29 D.&C.4th 494, affirmed, 454 Pa. Super. 714, 685 A.2d 1050 (1996) and Pennsylvania Chiropractic Federation v. Foster, 136 Pa. Commw. 465, 583 A.2d 844 (1990) are factually distinguishable from the case at bar. Neither of those cases dealt with allegations of improper utilization of the PRO to determine causation of the insured’s injuries. Therefore, defendant/insurer’s argument regarding standing is without merit.

Motion for judgment on the pleadings is in the nature of a demurrer. “[I]f there is any doubt as to whether [a] demurrer should be sustained, such doubt should be resolved in favor of refusing to enter it.” Reinford v. Conrail, 46 Pa. Commw. 167, 169, 405 A.2d 1151, 1152 (1979). This case is similar to the case of Pierce, supra, where the court allowed plaintiff’s case to continue. Therefore, based on Pierce, defendant/insurer’s motion for judgment on the pleadings is denied.

ORDER

Now July 17, 1998 it is hereby ordered and decreed that the defendant’s motion for judgment on the pleadings is denied.


author: MINORA,

text:
    Connors v. Dawgert
    C.P. of Lackawanna County,
    no. 95 CV 4109.

      Daniel L. Thistle, for plaintiffs.

      Jack Hartman, for defendants Dawgert and Zukowski.

      Linda Porr Sweeney, for defendant Mercy Hospital.

      Evan Black, for defendant Geisinger Medical Center.

      June 23, 1998
   MINORA,

— This matter is before the court by way of plaintiffs’ motion to bar the defendants’ expert. Suit in this medical malpractice case was instituted on August 30, 1995 to recover personal injuries on a cause of action which arose between the dates of May 24, 1985 and June 14, 1985.

A brief summary of the facts is as follows: As alleged in the complaint, minor plaintiff Michelle Connors was born on April 26, 1985. Relevant to this action, she was initially evaluated by defendants Dawgert and Zukowski at their office on May 24,1985, following complaints of “twitching,” “feeling poorly,” and “not feeling well.” She was examined by Dr. Dawgert, who detected signs of spinal meningitis. She was promptly admitted to Mercy Hospital.

As alleged, no viral cultures were taken at Mercy Hospital, and no medication for treating spinal meningitis was initiated. Bacterial cultures were obtained, and medication for bacterial spinal meningitis was started.

The plaintiff was transferred to Geisinger Medical Center on May 27, 1985. She received medical care from defendants Ryan and Wallace throughout this hospitalization. Spinal fluid viral cultures were obtained, with a diagnosis of viral meningitis made. Plaintiffs allege that the spinal fluid was not tested specifically for herpes virus, and no anti-viral medication was given.

It is alleged that the minor plaintiff developed static encephalopathy secondary to herpes encephalitis, manifested by partial paralysis, palsy, blindness, psycho-motor delay, seizure disorder, and other conditions. Minor plaintiff is currently a resident of a long-term care facility, requiring continuous nursing care, ongoing medical attention and hospitalizations. She is described as being brain damaged and profoundly retarded.

Presently, the issue before this court is whether Pa.R.C.P. 4003.5 would preclude a defendant’s expert witness from testifying where plaintiffs’ counsel had previously contacted said witness. Relevant to this issue are the following facts: On April 15, 1996, counsel for defendants Geisinger Medical Center, Ryan and Wallace retained RJ. Whitley M.D. to render a medical opinion in this matter. On April 4,1997, defense counsel identified Dr. Whitley as an expert pursuant to Pa.R.C.P. 4003.5. At that time, plaintiffs’ counsel advised that he had previously contacted Dr. Whitley, allegedly forwarding information for the doctor’s review in the form of a letter, setting out plaintiffs’ attorney’s mental impressions and personal theories. Plaintiffs’ counsel stated that Dr. Whitley declined to act as plaintiffs’ expert.

On June 9, 1997, at the direction of the court, Dr. Richard Whitley gave his testimony by deposition. The record reflects that Dr. Whitley repeatedly indicated that he had no recall of any contact, either by counsel for plaintiffs or anyone acting on counsel’s behalf for the plaintiffs. Nevertheless, plaintiffs base their motion on the language of Pa.R.C.P. 4003.5(a)(3) alleging that Dr. Whitley is prevented from serving as defense expert following the alleged initial contact by plaintiffs’ counsel.

Plaintiffs’ motion to bar RJ. Whitley M.D. as an expert witness for defendants was filed on September 22, 1997. Defendants filed a response on September 29, 1997. Oral argument was heard before this court on October 3, 1997. At that time, all parties were requested to submit supplemental briefs in support of their positions due to the absence of Pennsylvania law on the subject.

The plaintiffs’ motion is now ripe for disposition. The court notes this matter is apparently a case of first impression in this jurisdiction.

DISCUSSION

The court is presented with the issue of whether a party’s counsel who consulted with an expert, contemporaneously expressing an interest in possibly retaining him, but not doing so, is entitled to preclude the opposing party from utilizing the same expert’s testimony based upon an asserted privilege or the attorney work product doctrine. Despite the expert’s assertions that he has no recollection of the letter, or of any contact from plaintiffs’ counsel, the plaintiffs argue that the letter constituted privileged communication that should serve to disqualify the witness. At the heart of the matter is the contention that confidential information was imparted to the expert in the form of mental impressions, theories or strategies.

According to the record of his deposition, Dr. Whitley testified that he receives approximately 60 to 80 telephone inquiries per year asking him to review cases and render an expert medical opinion. Out of the 60 to 80 requests, Dr. Whitley agrees to review two to three cases, as his time permits. Dr. Whitley further testified that he does not entertain requests from attorneys which are made by way of a request letter, and that it is his standard procedure to simply discard any unsolicited written request for his review. Dr. Whitley testified that he did not recall reviewing the July 17, 1995 letter from plaintiffs’ counsel, nor does he have any recollection of any telephone conversation with counsel for plaintiffs or anyone acting on counsel’s behalf for the plaintiffs. Finally, the doctor stated that he has reviewed his file and has no record of any correspondence from the plaintiffs.

I.

Our initial inquiry is focused on whether the plaintiffs’ contact letter addressed to Dr. Whitley contained confidential information that would properly result in the disqualification of the defense expert. We agree with plaintiffs’ assertion that mental impressions, theories and strategies of plaintiffs’ counsel as revealed to an expert may serve as a proper basis for an expert’s disqualification.

In our determination, we first find it instructive to compare the letter (which is attached hereto as “exhibit A”) with the complaint drafted by plaintiffs’ counsel. We note the following in reference to the July 17,1995, contact letter

“Paragraph one — this paragraph introduces the case to the expert, and indicates that the infant should have been treated with ‘acyclovir when all the signs and symptoms called for it.’ This information is the basis for the complaint, and therefore we conclude that the information is not confidential in nature, since it appears in the publicly filed complaint.

“Paragraph two — this paragraph indicates the plaintiffs’ counsel’s familiarity with the expert’s credentials, notifies the expert to the enclosed medical records, and offers a retainer if one is so required. This information refers to the doctor’s expertise on the subject of the complaint and the availability of records, and therefore we conclude that the information is not confidential in nature.

“Paragraph three — this paragraph states that the case involves a 1-month-old female, born April 25, 1985, who was ‘fine when discharged.’ Further, the paragraph alleges that the baby’s mother contacted the pediatrician on May 22, 1985; the pediatrician saw the baby on May 24, 1985, recognized that the child potentially had spinal meningitis and admitted her to Mercy Hospital. This information is included in paragraph 13 of plaintiffs’ complaint, and therefore we conclude that the information is not confidential in nature, as it is filed in the courthouse and therefore a matter of public record.

“Paragraph four — this paragraph states that Mercy did not do a viral culture. The paragraph further alleges that the plaintiff was admitted to Geisinger on May 27, 1985, where viral cultures were immediately ordered. On May 27, 1985, it was reported that the spinal fluid was unsuitable for viral cultures. Tracheal aspirate and nasopharynx cultures were done and were reported negative. This information is included in paragraphs 17, 19 and 20 of plaintiffs’ complaint, and therefore we conclude that the information is not confidential in nature.

“Paragraph five — this paragraph states that Dr. Wallace was concerned about a possible herpes infection, but after consulting with an infectious disease physician, Dr. Ryan, decided not to administer acyclovir. Further, the paragraph alleges that no one recognized that the spinal fluid specimen was unsuitable until May 31, 1985, when a second culture was taken. The culture was reported back as negative. The hospital records indicate testing for coxsackie and echovirus, but not for herpes. This information is included in paragraphs 19 and 20 of plaintiffs’ complaint, and therefore we conclude that the information is not confidential in nature.

“Paragraph six — this paragraph alleges that according to the medical charts, the baby’s seizures were ‘poorly controlled’ by phenobarbital and phenytoin. This information is included in the medical records of the plaintiff, which would be available to any expert retained by the defense, and therefore we conclude that the information is not confidential in nature, since it would have to be disclosed in the discovery process.

“Paragraph seven — this paragraph indicates that the child was discharged from the hospital and readmitted several times, and has done ‘extremely poorly.’ This information is included in the medical records of the plaintiff, and would be available to any expert retained by the defense, and therefore we conclude that the information is not confidential in nature, as it must be revealed during the discovery process.

“Paragraph eight — this paragraph indicates Dr. Lilik’s involvement in the case. This paragraph alleges that Dr. Lilik conducted testing, but that the test results were not available at the time the letter was written. This information is inconclusive due to the unavailability of the report, and therefore we conclude that the information is not confidential in nature, as it must be revealed during the discovery process.

“Paragraph nine — this paragraph reveals that counsel had the case reviewed by a pediatric neurologist. This expert believed that the plaintiff should have been started on acyclovir shortly after admission to Mercy Hospital, that Mercy should have further cultured for a virus, and that the plaintiff should have been transferred to Geisinger promptly, rather than waiting three days. He further believes that Geisinger should have started the infant on acyclovir and there should not have been a mix-up in obtaining results on herpes. This information is discoverable as the treating pediatric neurologist could be called as a witness by the defense, and therefore we conclude that the information is not confidential in nature.

“Paragraph ten — this paragraph alleges that acyclovir has been shown to be effective in reducing morbidity by 60 percent or more. This information is statistical in nature, and therefore we conclude that the information is not confidential.

“Paragraph eleven — this final paragraph states ‘if you are willing, I would request that you review these records to determine whether early use of acyclovir could have increased this infant’s chance of a good result.’ This information is the key factual issue involved in the suit, and therefore we conclude that the information is not confidential in nature.”

After a careful review of the solicitation letter, we find that there is little, if any, potential that the defense may benefit from Dr. Whitley’s exposure to the contact letter authored by plaintiffs’ counsel. We recognize plaintiffs’ concern that the defendants’ expert has been furnished with information intended for the plaintiffs’ own expert. However, we do not agree that Dr. Whitley formed mental impressions as a result of plaintiffs ’ counsel’s letter that would preclude the expert from rendering an expert opinion on the defendants’ behalf, since the information contained in “exhibit A” is part of the public record in this case as is obvious when the complaint is reviewed. Further, no portion of the letter represents an attorney’s work product that is in need of protection, as plaintiffs’ theory of the injury is the nucleus of the civil complaint.

There is no evidence that Dr. Whitley was in receipt of the letter, nor can it be shown that Dr. Whitley reviewed the information supplied by plaintiffs’ counsel. However, assuming arguendo that Dr. Whitley did read and retain information concerning the plaintiffs’ position, we find that the letter does not contain mental impressions, theories or work product by plaintiffs’ counsel that would taint the expert’s testimony so as to render him unavailable to the defense. Consequently, we find no merit to plaintiffs’ contention that confidential information or attorney work product was disclosed to the expert through the plaintiffs’ solicitation letter.

As authority, we are guided by the same rules that apply to the attorney-client privilege. The privilege may be waived by the client. Rost v. State Board of Psychology, 659 A.2d 626 (Pa. Commw. 1995). Waiver of the privilege may occur where the client places the confidential information at issue in the case. “It may also be waived where there is no longer an expectation of privacy regarding the information because the client has made it known to third persons.” Rost at 629. See also, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (attorney-client privilege no longer exists where communications were publicly disclosed by direction of client.)

In the present case, we find that the information included in the plaintiffs’ letter to Dr. Whitley is, in essence, information publicly disclosed by the client in their filed complaint. The complaint is a matter of public record, thereby removing any expectation of privacy regarding the information contained within the document. Therefore, we conclude that any allegations of confidential information as supplied in the letter are not supported due to our assessment of the substantially similar information included in plaintiffs’ complaint.

II.

Plaintiffs’ counsel additionally cites the language of Pa.R.C.P. 4003.5(a)(3) as preventing Dr. Whitley from serving as defense expert following the alleged initial contact by plaintiffs’ counsel. The relevant portion of the rule states:

“A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, except a medical expert as provided in Rule 4010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances.” Pa.R.C.R 4003.5(a)(3). (emphasis added)

Conversely, the defendants argue that the court should not disqualify Dr. Whitley because plaintiffs never “retained” him.

The federal court has dealt with the issue of whether an expert had been “retained” by a party sufficient to preclude the expert from testifying for the other party. Although the federal case law interprets F.R.C.P. 26 rather than Pa.R.C.R 4003.5, it is clear that the federal court distinguishes between a preliminary “employment interview” with an expert from substantive contacts occurring within the context of a more formalized relationship. Cordy v. The Sherwin-Williams Company, 156 F.R.D. 575 (D.N.J. 1994).

In Cordy, the court determined that the expert had been retained, where a written contract between the expert and counsel was entered into, where the expert billed for 28 hours’ work, and where extensive contacts (;i.e. rendering of an oral opinion, review of their litigation strategy) took place between the expert and the attorney.

Furthermore, we are guided by Wang Laboratories v. Toshiba Corp., 762 F. Supp. 1246 (E.D. Va. 1991), and adopt a two-pronged test that courts have established in other jurisdictions to determine whether to disqualify an expert who had a prior relationship with a party. The court first considers whether it was objectively reasonable for the first party who retained an expert to believe that a confidential relationship existed and second, determines whether that party disclosed any confidential information to the expert. Id. at 1248. See also, Cordy v. The Sherwin-Williams Company, 156 F.R.D. 575 (D.N.J. 1994), citing Mayer v. Dell, 139 F.R.D. 271, 279 (S.D. Ohio 1988).

In the instant case, we first look to the communications and relationship established between plaintiffs’ counsel and the expert to determine whether it was objectively reasonable for the first party to believe that a confidential relationship existed. By plaintiffs’ counsel’s own admission, the only contact between the two parties was in the form of a letter addressed to the doctor, soliciting Dr. Whitley’s expertise. There is no evidence that Dr. Whitley read, or even received, the letter, and plaintiffs’ counsel admits that a follow-up phone call to Dr. Whitley’s office yielded no response except as alleged in plaintiffs’ supplemental brief, “an impression that the doctor’s office was familiar with the nature of the case in that it involved acting as an expert for a plaintiff in a case of herpes encephalitis that occurred in the mid-1980s.” It does not appear that plaintiffs’ counsel ever spoke to the doctor directly, and certainly the doctor did not accept any form of compensation as offered in plaintiffs’ counsel’s solicitation letter.

In sum, there was no written retention contract between plaintiffs’ counsel and the expert, nor did Dr. Whitley accept any form of compensation. There was no communication between the two parties, or meeting of the minds, except the three-page letter, which this court feels, contains no confidential information. Thus, we conclude that the communication between the two parties did not rise above that conducted at a preliminary “employment interview.” Further, based upon the record and plaintiffs’ counsel’s representation of the nature of the communication between the two parties, we have determined that it is not reasonable for plaintiffs’ counsel to have believed that a confidential relationship existed.

The court next addresses the second prong of the test set forth in Wang Laboratories, namely, whether the initial party disclosed confidential information to the expert. Because we have determined that the letter does not constitute confidential information, we find that the letter is not sufficient communication to preclude the expert witness from testifying. Consequently, we find that the plaintiffs fail to meet the burden as established in Wang, that would permit this court to disqualify Dr. Whitley as the defense expert.

III.

In passing, we feel compelled to note that the American Bar Association issued a formal opinion exploring an attorney’s duty to avoid a conflict of interest when information imparted by a would-be client interferes with the attorney’s representation of yet another client. See formal op. 90-358.

The committee is asked what measures a lawyer should adopt to avoid disqualification under the Model Rules of Professional Conduct from representing an existing client as a result of receiving information relating to the potential representation of a would-be client. The committee assumes, first, that the information is material to the representation of the existing client and its use would be detrimental to the would-be client, and, secondly, that the would-be client has consulted the law firm in good faith for the purpose of obtaining legal representation in the matter.

Model Rule 1.6 provides in relevant part:

“A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.”

The comment to Rule 1.6 states that the main purpose for the rules affording protection of client confidences is to encourage clients “to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter in order to develop all facts essential to proper legal representation.” Rule 1.6, comment.

The committee also cites Model Rule 1.8(b), which prohibits the use of information relating to the representation to the disadvantage of a current client, and Model Rule 1.9(c) which prohibits the use of information relating to the representation to the disadvantage of a former client except when the information has become generally known. The committee concludes that Rule 1.6 provides protection to a wider scope of client information than is afforded by the attorney-client privilege in that it extends to “all information relating to the representation of his client.”

Of particular note and interest to this court is the committee’s determination that the privilege ordinarily attaches to communications when made to a lawyer by a prospective client for the purpose of securing legal advice or assistance even though the representation is subsequently declined. Wigmore, Evidence (McNaughton rev.ed. 1961) §2304. McCormick, Evidence (1984 ed.) §88. (emphasis added) According to the committee, the question becomes whether the lawyer has received information that is protected by Model Rule 1.6, and if so whether the lawyer or firm may be limited in representing the existing client.

In their opinion, the committee applies a functional analysis in determining whether the lawyer may continue to represent the existing clients in three hypothetical cases. The committee states:

“This analysis is based upon the reasonable expectations of the existing and would-be clients, the nature of the information received from the would-be client, the relative duties of loyalty owed the existing and would-be clients, and the detriment to the existing client and the justice system that might occur were the law firm required to withdraw from the existing representation. It is not reasonable, for example, for an existing client to expect that the lawyer will use, in connection with the representation, information relating to the representation of another client or a would-be client to the disadvantage of the other client.”

In each of the three hypothetical cases, the committee articulates definite exceptions to the general rule that the lawyer must be disqualified from representing an existing client in the event that the lawyer has been provided information by a potential client. Of particular relevance to the case at bar is the first hypothetical lawsuit.

In case 1, a lawyer in a firm already has been engaged by client A in connection with a potential breach of contract claim of B against A, and a file has been opened. Several weeks later, B consults another lawyer in the firm about the same matter, disclosing only that A is a potential defendant and that the suit involves the breach of contract claim. The conflict of interest is discovered in a routine conflicts check, and the law firm immediately declines to represent B in the matter for that reason.

The ABA Committee concludes that the fact that B has consulted the law firm to prosecute the claim against A may not be communicated to A or used to B’s disadvantage because it is information protected by Rule 1.6. The law firm may nevertheless continue to represent A because the information is neither extensive nor sensitive and the inability to reveal or use the information does not place material limits on A’s representation. The committee further cautions that if the disclosures made to the law firm in case 1 had been more extensive or sensitive or more necessary to use inadequately representing the existing client, withdrawal from representations would be required.

Although we recognize that the ABA opinion is not binding on the Pennsylvania courts, we find that the foregoing principles offer guidance by analogy to the case at bar. In our analysis, we draw the parallel between the retained attorney, permitted to continue representation under limited circumstances and the expert consulted by two different parties. Our interpretation of the opinion reinforces the standard established in other jurisdictions in that the committee is rightfully concerned that confidential information received by a previously retained attorney could result in a wrongful communication that should preclude the attorney’s services. However, the committee clearly states that where the communications are not extensive or sensitive in nature, withdrawal from representation is not required.

Turning to the matter at hand, the record clearly reflects that the expert had no recollection of the contact letter. The plaintiffs’ counsel at no time had any direct oral communication with the expert. Most importantly, we find that the information included in the letter was not confidential in nature, but information publicly disclosed in a filed complaint or properly accessible through pretrial discovery. In other words, this court is not convinced that the information contained in the letter was so extensive or sensitive as to require the disqualification of Dr. Whitley as the defense expert.

CONCLUSION

In light of the foregoing, we find that there is no evidence cited by the plaintiffs that would indicate to this court that confidential information was imparted or that a confidential relationship existed between the parties. Therefore, we find that Dr. Whitley may be permitted to serve as the defense expert. Plaintiffs’ motion to bar RJ. Whitley as a defense expert is denied.

An appropriate order follows.

ORDER

And now, to wit, June 23, 1998, it is hereby ordered that plaintiffs’ motion to bar R.J. Whitley as a defense expert is denied.


author: AMMERMAN, J.,

text:
    Dippold v. Laurel of DuBois

      C.P. of Clearfield County,
    no. 95-1185-CD.

      George L. Daghir, for plaintiff.

      J. Michael Dorezas, for defendant.

      Matthew B. Taladay, for co-defendant Valley Dairy.
    June 26, 1998
   AMMERMAN, J.,

— The above-captioned civil action was commenced by writ of summons on August 21,1995, and the complaint was filed January 3, 1996. Leola A. Dippold, plaintiff, seeks to recover money damages for injuries sustained after she slipped and fell at the DuBois Mall. Plaintiff avers that the fall occurred on or about August 23, 1993, in the common area outside the premises of Valley Dairy. The complaint further alleges that plaintiff slipped and fell on what was later determined to be a chocolate milkshake or other substance which had been spilled on the floor. Plaintiff has alleged that Valley Dairy had received a report regarding the slippery condition of the floor prior to plaintiff’s fall.

Laurel of DuBois, owner of the real estate on which the Dubois Mall is built, and the DuBois Mall are also defendants to this suit. For the purpose of dealing with the present motion for summary judgment, “defendant” will refer only to Valley Dairy.

Defendant filed a motion for summary judgment on May 15, 1998. Briefs by the parties having been timely received, the issue is now set for decision.

In considering a motion for summary judgment, the trial court must examine the entire record. Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085, 1086 (Pa. Super. 1997) (citing Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 684 A.2d 137 (1996)). Summary judgment is properly granted when “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Myers v. Penn Traffic Co., 414 Pa. Super. 181, 184, 606 A.2d 926, 927-28 (1992) (citing Overly v. Kass, 382 Pa. Super. 108, 110-11, 554 A.2d 970, 971-72 (1989)). Summary judgment may be entered only in cases where right is clear and free from doubt. Id. In addition, “[t]he record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992) (citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991)). Summary judgment serves to “eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.” Liles v. Balmer, 389 Pa. Super. 451, 454, 567 A.2d 691, 692 (1989).

The plaintiff has alleged that defendant was negligent in various respects. An action for negligence requires that the plaintiff establish: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages. Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994). Thus, establishing a breach of a legal duty by the defendant is a condition precedent to a finding of negligence. Shaw v. Kirschbaum, 439 Pa. Super. 24, 29, 653 A.2d 12, 15 (1994).

In the area of premise liability, a possessor of land owes the highest duty of care to a person having the status of business invitee. Lonsdale v. Joseph Horne Co., 403 Pa. Super. 12, 18, 587 A.2d 810, 813 (1991). A business invitee is a visitor “who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722 (1997) (citing Palange v. City of Philadelphia Law Department, 433 Pa. Super. 373, 378, 640 A.2d 1305, 1308 (1994)). The courts of this Commonwealth have applied section 343 of the Restatement (Second) of Torts in articulating the duty owed to a business invitee. Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 415, 664 A.2d 139, 142 (1995). Liability arises when the party “knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger.” Id. Furthermore, an invitee has the burden of proving the proprietor of the land either played a part in creating the harmful condition, or he had actual or constructive notice of such condition. Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 535, 422 A.2d 593, 598 (1980).

Generally, “the owner of a building who leases out different parts of the building has control over those areas not specifically leased and is, therefore, liable for negligence in the maintenance of the controlled areas even though the areas are appurtenant to one or more of the leaseholds.” Trude v. Martin, 442 Pa. Super. 614, 626, 660 A.2d 626, 632 (1995) (citing Portee v. Kronzek, 194 Pa. Super. 193, 196, 166 A.2d 328, 330 (1960)).

The lease between defendant and Laurel of DuBois is significant to the disposition of the present issue. Leases between landlords and tenants are governed by contract law. Pugh v. Holmes, 486 Pa. 272, 284, 405 A.2d 897, 903 (1979). Contracts, statutes, and common law can be the source of a duty under Pennsylvania law. Emerson v. Adult Community Total Services Inc., 842 F. Supp. 152 (E.D. Pa. 1994), reconsideration denied, 848 F. Supp. 44 (1994), affirmed, 39 F.3d 1169. Defendant has filed an affidavit of Joseph Greubel, president of Fairview Dairy Inc. d/b/a Valley Dairy, which includes a copy of the lease agreement and addendum in effect on August 23, 1993. The terms of the lease provide, in part, that:

“(1) Lessor covenants and agrees that during the term of this lease or renewal or extension thereof to provide parking areas, malls, approaches, exits, entrances and roadways, herein referred to as ‘common areas’ and to maintain the same in good repair, reasonably clear of snow and debris, except sidewalks and service areas contiguous to the demised premises, . . .

“(2) For this service, lessee agrees to pay in advance to lessor the sum of $.50, said sum herein referred to as ‘common area payment,’ each year for each square foot of floor space contained in the demised premises

“(3) Common areas shall be subject to the rules and regulations as the lessor may, from time to time adopt, and lessor reserves the right to make changes, additions, alterations or improvements in and to such common areas, provided, that there shall be no unreasonable obstruction of lessee’s right of access to the demised premises.” Article XII of lease agreement, page 4.

The defendant has argued that as a tenant, it had no duty to control or maintain the area outside the leased premises. Defendant further stated that absent a contrary provision in the lease, a tenant cannot be held liable for a slip and fall resulting from a dangerous condition of a common area, not within the leased premises, and had no duty to abate a dangerous condition in the common area. The plaintiff contends that among the inquiries still unresolved, are the issues of whether the plaintiff fell in a common area within the meaning of the subject lease, and whether the plaintiff fell within excluded areas described under the lease as “sidewalk or service area contiguous to the demised premises.” The Oxford Dictionary has defined “contiguous” as “touching, in actual contact, next in space, meeting at a common boundary, bordering, adjoining; continuous, with its part in uninterrupted contact.” Lancaster City Annexation Case (No. 5), 374 Pa. 546, 548, 98 A.2d 34, 35 (1953).

Whether the plaintiff’s fall occurred within an area that the defendant controlled is an issue of fact. In Harris by Harris v. Hanberry, 149 Pa. Commw. 300, 613 A.2d 101 (1992), summary judgment in pedestrian’s personal injury action was denied based on the existence of genuine issues of material fact as to location of accident, whether hole in sidewalk extended onto landowners’ property from adjacent property, and whether sidewalk was repaired before accident. Harris, 149 Pa. Commw. 300, 304, 613 A.2d 101, 103 (1992). The court determined that an issue certainly existed as to where the accident took place as between two neighboring landowners, which precluded entry of summary judgment. Id. at 306, 613 A.2d at 104.

In conclusion, the plaintiff, as against the defendant, has pled all the necessary elements of negligence. Although the law tends to agree with the defendant regarding the general duty of care on the part of a tenant, the court finds that the terms of the lease do not eliminate the possibility of liability on the part of the defendant. Therefore, after a thorough review of the record, this court concludes that the plaintiff must be given an opportunity to prove her claim against the defendant at trial.

Wherefore, the court enters the following:

ORDER

Now, June 26, 1998, consistent with the foregoing opinion, it is the order of this court that the motion for summary judgment filed on behalf of the defendant, Valley Dairy, be and is hereby denied.

      . The record indicates that no depositions were filed with the record in this case.


author: HOOVER, J.,

text:
    Gordon v. Bakare

      C.P. of Dauphin County,
    no. 3445 S 1997.

      Carol Nelson Shepherd, for plaintiff Gordon.

      Kendra D. McGuire, for defendant Ayodeji O. Bakare M.D.

      Michael M. Badowski, for defendant Jose Manjon M.D.

      Sarah W. Arosell, for defendant Polyclinic Medical Center.
    BEFORE: KLEINFELTER, LEWIS AND HOOVER, JJ.

    May 6, 1998
   HOOVER, J.,

— This matter is presently before the court on defendants Backare and Manjon’s preliminary objections. Argument was heard before an en banc panel of this court and the relevant facts and procedural history are summarized as follows:

This medical malpractice action was filed on November 5, 1997. In the complaint, the plaintiffs allege that the defendants were negligent in failing to properly manage Mrs. Gordon’s labor when signs of fetal distress were exhibited, that a cesarean section was not timely performed and that this negligent conduct caused severe injuries to the baby which caused his eventual death. In addition, as a result of the alleged negligent conduct, Mrs. Gordon was required to undergo a complete abdominal hysterectomy because of her ruptured uterus. The complaint alleges negligence, lack of informed consent and negligent infliction of emotional distress. Preliminary objections were filed on behalf of the doctors which are now before the court for disposition.

First, the doctors contend that subparagraphs 57(a), (b), (c), (g), (r), (s), (t) and (u) are not pleaded with the required specificity in violation of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) and Starr v. Myers, 109 Dauph. 147 (1988). The objected to subparagraphs read as follows:

“(57) The injuries sustained by Donna Metz Gordon and her infant son, Sean Michael Gordon, were caused by the negligence and carelessness of the defendants Ayodeji O. Bakare M.D., Jose Manjon M.D. and Polyclinic Medical Center in the following particular respects:

“(a) failure appropriately and adequately to monitor Mrs. Gordon’s labor;

“(b) failure to obtain appropriate and necessary additional diagnostic testing during the course of Mrs. Gordon’s labor in order to evaluate her baby’s well-being;

“(c) failure to obtain appropriate and necessary additional monitoring during the course of Mrs. Gordon’s labor in order to evaluate her baby’s well-being;

“(g) failure to obtain adequate and necessary medical and surgical consultations;

“(r) failure properly to take necessary and appropriate prophylactic steps to safeguard the patient and her unborn infant;

“(s) failure adequately to possess adequate medical skills, knowledge, experience and techniques for the proper treatment of Mrs. Gordon’s condition;

“(t) failure properly to bring to bear such medical skills and knowledge as defendants then possessed in the treatment and care of plaintiff;

“(u) failure properly to conform to accepted standards of medical practice and care in the diagnosis, treatment and medical and surgical management of Mrs. Gordon’s labor, monitoring and delivery; . . . .”

We have read the above averments in the context of the entire complaint and conclude that these allegations are sufficiently specific. Accordingly, the preliminary objections in this regard will be overruled.

The defendants next contend that the plaintiffs cannot set forth a cause of action for breach of informed consent in connection with the delivery of a child. The defendants request that paragraph 57(v) be stricken with prejudice.

The defendants rely on Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993) in support of their arguments. In Sinclair, the issue before the court was whether the use of forceps during delivery was a surgical or operative procedure to which the informed consent doctrine applies. Id. at 567, 633 A.2d at 1139. In 1981, Mrs. Sinclair became pregnant and sought medical care from the defendants. Id. at 566, 633 A.2d at 1138. Near the end of her pregnancy, Mrs. Sinclair signed a consent form which outlined the procedures necessary to treat/diagnose her condition as being prenatal care, delivery care, postnatal care and/or cesarean section. Id. Mrs. Sinclair stated that she was never told verbally or in writing that the defendant may use forceps during the delivery of the baby. Id. During labor, the doctor observed that the baby was not proceeding through the birth canal in the usual position and attempted to deliver the baby by using forceps. Id. The use of forceps to facilitate natural delivery failed and the baby was delivered by cesarean section. Id. After birth, it was discovered that the baby had areas of swelling and had suffered a fractured skull. Id. The Supreme Court determined that the use of forceps was not an operative procedure and they were used as a tool as an extension of the doctor’s hands. Id. at 569, 633 A.2d at 1140. The court stated that the physician’s use of forceps to facilitate natural delivery is not a distinct surgical or operative procedure and does not require additional consent to use forceps. Id. The court noted that during the course of natural delivery, as opposed to an operative or surgical procedure, the physician is present to assist nature and since labor is inevitable, the informed consent doctrine does not apply to the natural delivery process. Id. at 570-71, 633 A.2d at 1141.

The plaintiffs contend that the defendants’ reliance on the Sinclair case is misplaced. In the present case, there were two options available to Mrs. Gordon, natural delivery and cesarean section. Her doctor never explored with her the benefits and problems associated with cesarean delivery given her history and the problems she was experiencing in the natural delivery process. Mrs. Gordon argues that she was denied the surgical alternative to natural delivery which would have perhaps prevented the injuries and ultimate death of the plaintiffs’ child.

We agree with the plaintiffs and conclude that the cause of action for lack of informed consent should remain. The Sinclair case, although it involved the delivery of a baby, was not focused on the informed consent doctrine as it related to the delivery options. It merely involved the question as to whether the use of forceps during delivery was a surgical procedure.

The defendants next claim that the complaint fails to state a cause of action for the negligent infliction of emotional distress on behalf of Mr. Gordon. The plaintiffs allege that Mr. Gordon is entitled to damages suffered as a result of witnessing the alleged negligent treatment of his wife, the resulting harm to his wife and son and for his inability to have any more children since his wife had to undergo a hysterectomy as a result of the birth.

A cause of action for the negligent infliction of emotional distress is viable if the plaintiff alleges that (1) the plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) 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) the plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship. Turner v. Medical Center, Beaver, PA, 454 Pa. Super. 645, 686 A.2d 830 (1996). A person who does not experience a sensory and contemporaneous observance of the injury does not state a cause of action for negligent infliction of emotional distress. Id. Mr. Gordon was present when the baby was delivered. Although he observed the delivery and saw what was or was not done in the delivery process, he did not have any contemporaneous knowledge that his son had health problems or that these problems were perhaps caused by the defendants. After the baby was delivered, he was soon made aware that there were complications with the baby’s health and with his wife, and it was soon discovered that his wife needed a hysterectomy. It is not alleged that Mr. Gordon, when he observed the delivery process, knew that there were problems with the baby. It was after the baby was delivered that he was told of the problems. Therefore, we will sustain the defendants’ preliminary objections to paragraph 63 and Count 4 of the complaint.

Defendant Manjon also argues that the complaint should be amended since the plaintiffs have failed to delineate the negligence of each defendant. We have reviewed the complaint and conclude that each paragraph sets forth what was or was not done by the defendants. Accordingly, we will overrule this preliminary objection and enter the following:

ORDER

And now, May 6, 1998, the preliminary objections filed on behalf of the defendants are hereby overruled with the exception that the preliminary objections to paragraph 63 and Count 4 of the complaint are sustained and paragraph 63 and Count 4 are stricken from the complaint with prejudice. The defendants are directed to file an answer to the complaint within 20 days from the date of this order.