author: BOZZA, J.,

text:
    Coughlin v. Miljack Inc.

      C.P. of Erie County,
    no. 14402-1998.

      Mark O. Prenatt, for plaintiff Coughlin.

      Tibor R. Solymosi, for plaintiff White.

      James R. Bruno, for plaintiff Schack.

      Gregory P. Zimmerman, for defendant Miljack Inc.

      Lisa Lynn Smith, for defendants Virges and Hains.

      March 3, 2000
   BOZZA, J.,

Once again, the court is being asked to determine as a matter of law whether a plaintiff has failed to prove the occurrence of a serious injury and is therefore precluded from recovering damages for noneconomic loss pursuant to the Motor Vehicle Financial Responsibility Law. 75 Pa.C.S. §1701 et seq. In each of the three cases before the court, the plaintiffs were injured in motor vehicle accidents and subject to “limited tort” insurance policies. Each filed an action against a driver claiming “a serious impairment of body function.” 75 Pa.C.S. §1702.

The Supreme Court has very explicitly determined that the question of whether a serious injury has been sustained is not a predicate responsibility of the trial court, but an issue to be decided within the context of traditional standards applicable to summary judgment. Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). A summary judgment analysis requires that the court first determine if there are any material issues of fact in dispute, and then view the uncontested facts in a light most favorable to the non-moving party. If reasonable minds could not differ as to the meaning of those facts in light of the applicable law, summary judgment should be granted. Id. In Washington, the court also noted that with regard to the issue of serious injury “the ultimate determination should be made by the jury in all but the clearest of cases.” Id. at 441, 719 A.2d at 740.

In Washington, the court adopted the view of the Supreme Court of Michigan in DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986), and stated that in order to determine whether a serious injury has occurred, the trier of fact must decide the following:

(1) Did the plaintiff suffer an injury that impaired a body function?

(2) If a function of the body had been impaired, was that impairment serious? Id.

In order to determine whether an impairment is serious, the following criteria, as well as other relevant considerations, should be considered:

(1) The extent of the impairment;

(2) The length of time the impairment lasted; and

(3) The kind and extent of treatment required to correct the impairment.

There is no requirement that the injury be permanent. Id. The MVFRL does not provide a definition of “serious” nor indicate any criteria to be used to determine the existence of a serious impairment of body function.

Notwithstanding the now more precisely delineated legal framework for analyzing the existence of a serious injury, the subjective nature of the term “serious” continues to make the resolution of the issue in a summary judgment or any other context very difficult. Indeed, ascertaining seriousness requires at least to some degree a relative inquiry which must take into consideration a myriad of individual circumstances and personal characteristics. Accordingly, it is not surprising that the Supreme Court of Michigan rejected the utilization of a singular conceptual analysis or standard in addressing the issue. DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). In DiFranco, which the Pennsylvania Supreme Court looked to for guidance in defining “serious impairment of body function,” the court even rejected the notion that in order for there to be a serious bodily injury, an important body function must be impaired. Id. at 61. The court also declined to rely on the “general ability to live a normal life” test, and refused to adopt the idea that serious injury had to be one that was “objectively manifested.” Id. at 66, 75.

In Washington, the plaintiff suffered a cervical sprain, foot sprain, and cuts and contusions. As a result he was treated in the ER and received a cortisone injection in his foot. The injury had no effect on his ability to work, although he could no longer push a lawnmower. He continued to have ongoing pain once per week, and periodically he reported that his ankle would swell. The Supreme Court applied a DiFranco analysis and concluded that the impairment of body function was not serious.

Recently, the Superior Court has provided some additional guidance in the analysis of factual settings suggestive of serious injury. In Hellings v. Bowman, 744 A.2d 274 (Pa. Super. 1999), the Superior Court decided that reasonable minds could differ as to whether the plaintiff sustained a serious impairment of body function when he incurred a herniated disc with lumbar radiculopathy. The injury resulted in numbness in the right knee, hip pain, muscle spasms in the back, hand cramping and frequent headaches. The plaintiff underwent physical therapy, chiropractic care, and took muscle relaxers and other medications. The functional consequences of the injury included his inability to ride in his wife’s car and drive his snowmobile, no work for six weeks, no skiing, limitations on his ability to hunt and horseback ride and to physically interact with his children. The duration of his impairment was not clear. His medical condition was diagnosed by a neurosurgeon.

The plaintiff in Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. 1999) also suffered a herniated disc with involvement of nerves affecting his face and toes. Treatment included physical therapy and exercise, chiropractic care and pain medications, but no surgery. As a result of his injury, Kelly could no longer run or ride his bike, could do limited walking, and couldn’t play with his child. However, he had no work limitations. While the duration of the impairment is not explicitly set forth, it appears that part of the functional consequences will be permanent. He endured pain for a period of at least two years following the accident. There was medical confirmation of his limitations, and an indication that his condition may worsen. In these circumstances, the court concluded that reasonable minds could differ as to whether Mr. Kelly had sustained a serious impairment of his back.

In Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998), Furman had a back/neck injury described as a “bulging disc.” He underwent physical therapy and did home exercises and apparently was prescribed medication. He was required to reduce work to part-time, could walk no more than one block, and could do no heavy lifting. His impairment continued to exist as of three years following the date of the accident. The doctor described the condition as permanent. The Superior Court, finding that reasonable minds could differ as to the existence of serious injury, reversed the trial court’s grant of summary judgment.

Additional examples of instances where plaintiffs alleged serious injury are found in DiFranco. In each of the following cases, the court found that reasonable minds could differ as to the existence of a serious injury:

(1) The plaintiff sustained a soft tissue injury to his back, limiting his ability to move his lower back by 40 to 50 percent and his neck by 30 to 40 percent. As of the time of trial, the limitation had been reduced to 5 to 15 percent. He returned to work with no limitations after two months. His treatment included traction and physical therapy. There was some permanent impairment and his ability to move his lower back will be increasingly limited as his arthritis progresses. On these facts, the Supreme Court decided that the trial court was correct in denying defendant’s motion for a directed verdict and stated, “We cannot say that all persons would conclude that plaintiff’s impairment was not serious.” Id. at 78.

(2) A person injured while riding his motorcycle suffered a fracture to his right clavicle. He wore a bracer-type cast for four to six weeks and the fracture healed without any problem. During a period of four to six weeks, the movement of his arm and shoulder were totally impaired. The plaintiff continued to experience some pain in his shoulder following the removal of the cast and it is likely to continue for several months.

(3) Plaintiff sustained a severe fracture of his jaw and was required to have his mouth wired as a result of surgery to correct the fracture. He was restricted to a liquid diet for a period of time and could not chew. The wires in his jaw remained for a period of approximately two months. There were some complications including the temporary loss of 30 percent of his hearing, a loss of weight, and pain in his mouth, ears and back. The fracture healed satisfactorily within three to four months and there was no ongoing impairment to the functioning of his mouth. In this case, the jury found that the plaintiff did not suffer a serious impairment of body function and the court decided that the verdict was not against the weight of the evidence. [In an interesting caveat, the court commented that “the focus of the threshold inquiry must be on the extent the particular body function was impaired, not on how the impairment affected plaintiff’s daily life.” Id. at 85.]

(4) As a result of being rear-ended, the plaintiff suffered a dislocation of a thoracic vertebrae and scoliosis. This diagnosis was supported by the opinion of a chiropractor. He underwent chiropractic care for six to eight weeks, and was advised not to stand on his feet for more than four hours per day, nor lift more than 25 pounds. He continued to receive treatment thereafter from the chiropractor once every two weeks. The chiropractor believed that the lifting restrictions were permanent and that he would need chiropractic care for the rest of his life and that ultimately the condition would degenerate because of arthritis. Following a trial, the jury found that the plaintiff had sustained a serious impairment of body function. The court agreed that the record supported the jury’s conclusion, reversed the court of appeals, and noted that it was incorrect to focus on the plaintiff’s lack of absenteeism and wage loss, stating, “The court of appeals’ reasoning would penalize persons who return to favored work. The court should have focused instead on the extent and permanency of the plaintiff s impairment.” Id. at 88.

(5) As the result of an accident, a tractor-trailer driver suffered a hernia and underwent two operations with hospitalizations for two weeks. The plaintiff cannot lift more than 30 to 40 pounds and experiences severe pain climbing stairs, standing for long periods, and when lifting a gallon of milk. There was no indication as to whether plaintiff’s condition would improve in the future. The court noted the fact that the plaintiff underwent two surgeries performed under general anesthesia and said that “weighs in favor of finding a serious impairment.” Id. at 91.

It is apparent that there are a myriad of circumstances which will beg the question of serious injury. The traditional summary judgment analysis required by Washington limits the granting of summary judgment to the clearest of cases. 553 Pa. at 441, 719 A.2d at 737. As is evidenced by the examples described above, each case presents a unique interplay of factual circumstances. It is also apparent that the focus must remain on the nature of the impairment of the body function, its extent and permanency, and the treatment required in an attempt to remedy it. As this court noted in Johnson v. Gutfreund, Erie County no. 11289-1997 (1999), the assessment of seriousness requires an inherently subjective analysis and while the legislature intended that one who selects the limited tort option should recover for noneconomic damages in only narrow circumstances, it is a matter that should routinely be left to the jury. In the Johnson case, the plaintiff had broken her ankle and the extent of her treatment included wearing a cast for six weeks and using a cane for a couple of additional weeks. She had no medically documented limitations on the use of her ankle and maintained that her only difficulty was in climbing stairs, picking up her daughter, doing heavy cleaning, and roller skating. Three years after the accident she had only intermittent pain and some walking limitations, no other impairment on the use of her ankle, and she described her current state of health as “aches and pains.” As the plaintiff in Washington, Ms. Johnson missed only limited work, her treatment was not extensive, and the injury had no impact on her ability to perform her job, and only minor impact on her ability to carry out personal activities. This is not to say that a fracture to an ankle may not result in serious impairment of a body function. It is to say that in Ms. Johnson’s case, it did not. The court must now address the diverse and distinct circumstances presented by the three cases before it:

A. COUGHLIN v. MILJACK — NO. 14402-1998

As a result of an automobile accident in December of 1996, Debbie Coughlin suffered a herniated disc and a bulging disc in her spine. In addition to the pain associated with those obvious injuries, she suffered from migraine headaches. For a period of approximately one year following the accident she underwent chiropractic care, physical therapy, utilized various pain medications, and was significantly limited in her ability to carry out her daily activities because of serious pain.

In January 1998, she underwent spinal surgery to fuse vertebrae in her spine, and for six months following the surgery, she was largely incapacitated from carrying on her ordinary activities. As of June 1999, the date of her deposition, she was considerably improved, but continued to have problems with arm discomfort and she required some assistance with getting dressed. She couldn’t lift heavy objects or stand for long periods of time. The existence and extent of her injury are well-documented by medical records.

Utilizing the DiFranco analysis adopted in Washington yields the following results:

(a) The functioning of Ms. Coughlin’s back was impaired.

(b) The extent of impairment included the inability to utilize her back to carry out a number of day-to-day activities for an extended period of time.

(c) The length of time associated with the primary period of impairment was 18 months.

(d) Her treatment included a variety of modalities, including spinal surgery and an accompanying six-month period of rehabilitation.

(e) The nature and extent of her injuries are well-documented by medical records.

It is obvious based on the summary judgment record that a jury could reasonably find that Ms. Coughlin suffered a serious injury.

B. WHITE v. HAIN — NO. 13485-1997

As a result of being struck by a car as he was crossing the street in October of 1995, Aaron White sustained an injury to his anterior cruciate ligament in the area of his knee. He also suffered a fracture of the pubic bone, and various contusions and abrasions. At the time of the accident he was a high school student and employed part-time as a busboy and dishwasher. While the pubic bone injury caused him virtually no difficulty, the knee injury required two surgical procedures: an arthroscopic surgery in January 1996, and a more conventional invasive procedure in September of 1997, which resulted in the reconstruction of his ACL. He underwent two different courses of physical therapy, took pain medication, wore a brace and used crutches. He was unable to work at various part-time jobs for a total period of approximately six months, missed school for a number of weeks, and during the intervening year-long period between surgeries, utilizing his knee in a normal fashion was restricted. The knee felt like “straw” when he would bend it and, on occasion, he would collapse to the ground in pain. In general, he suffered continuous discomfort for a period of at least a year.

Following surgery, in addition to going to physical therapy three times per week, he was required to keep his leg totally straight in a brace for two and one-half months, used crutches for. one month, and overall, used some form of brace for three to four months. As of the time of his deposition in February of 1999, which was approximately three years post-accident, the knee had improved but he continued to have occasional pain, and he.could no longer run or play basketball.

Utilizing the DiFranco criteria yields the following results:

(a) The functioning of Mr. White’s knee was impaired.

(b) The extent of impairment included limitations in the general use of his leg for normal activities because of associated pain and weakness. This resulted in the loss of work, the missing of school, the inability to participate in athletic activities, and varying periods of limited mobility.

. (c) The primary period of impairment encompassed the period within which two surgeries were performed, and lasted about two and one-half years.

(d) The treatment included arthroscopic surgery, ACL reconstruction surgery, physical therapy and pain medication.

(e) The existence and extent of his injuries are well-documented by medical evidence.

When all the evidence is viewed in a light most favorable to Mr. White, reasonable minds could differ as to whether the impairment of his knee was serious.

C. SCHACKv. VIRGES — NO. 15431-1995

As the result of an automobile accident in December 1993, Donna Schack was seen briefly in the hospital emergency room and released to the care of her private physicians. She'suffered a concussion, cervical strain and lacerations. Over a period of four years, she was treated with chiropractic care, osteopathic manipulation, physical therapy, and trigger point injections, as well as pain medication. Her continuing problems included daily neck pain and headaches, and periodic migraine headaches. Following the accident, she was off work for a little bit less than a month before going back to work as an accounting assistant part-time. She regained full employment after about three months. Her injuries did not interfere with her ability to carry out any portion of her job. As of the time of the deposition, she was unable to ride her bike, and her injuries had limited her ability to bowl. She has no other functional limitations. She was involved in a second car accident in March of 1995, and as a result of that accident, her neck injury was further aggravated for a period of time. There is no loss of range of motion in her neck, and the diagnostic studies failed to definitively disclose the physiological nature of her neck injury.

The first question is whether Ms. Schack suffered an impairment of a function of her body. In that regard, it would appear that she has had some difficulty moving her neck. Although the record does not explicitly address this matter, the treatment that she received was considerable and it appears to have been directed to improve her ability to use her neck in a less painful manner. From a functional point of view, her injury has had very limited impact. The only activity that she reports completely curtailing is bike riding. Her participation in bowling continued until the second accident, and thereafter, she indicated she was forced to quit. A close review of her medical records does not yield any medical opinion concerning continuing physical limitations as of the date of her deposition in 1997. Although her treatment continues, she cannot distinguish which portion of the treatment is necessary because of her original injury, and which portion is needed because of injuries suffered in the March 1995 accident.

Applying a DiFranco analysis yields the following results:

(a) The ability of Ms. Schack to move her neck was impaired.

(b) The extent of impairment included limitations on using her neck for work purposes, bike riding and bowling.

(c) The primary period of impairment coincided with her work loss and lasted three months.

(d) Treatment included physical therapy and injections, chiropractic and osteopathic manipulation and pain medication, but not surgery or prolonged immobilization.

(e) The extent of treatment is documented by medical records, but the extent of impairment of the use of her neck or its permanency are not supported by medical testimony.

Considering the nature, extent and permanency of her injury, the court concludes that reasonable minds could not differ that Ms. Schack did not suffer a serious impairment of the use of her neck.

Based on the conclusions set forth above, appropriate orders shall follow.

ORDER

And now, March 3, 2000, upon consideration of defendant’s motion for summary judgment and argument thereon, and for the reasons set forth in the attached opinion, it is hereby ordered, adjudged and decreed that the motion for summary judgment is denied.

ORDER

And now, March 3, 2000, upon consideration of defendant’s motion for summary judgment and argument thereon, and for the reasons set forth in the attached opinion, it is hereby ordered, adjudged and decreed that the motion for summary judgment is denied.

ORDER

And now, March 3, 2000, upon consideration of defendant’s motion for summary judgment and argument thereon, and for the reasons set forth in the attached opinion, it is hereby ordered, adjudged and decreed that the motion for summary judgment is granted.

      . The plaintiffs do not claim that they have suffered “permanent serious disfigurement” or death.


source: Caselaw Access Project

author: LAWLER, J.,

license: Public Domain

text:
    Neilson v. Ruoti

      C.P. of Bucks County,
    no. 96-06047-13-1.

      Lindley M. Cowperthwait Jr., for plaintiff.

      John P. Shusted, for defendant.
    September 30, 1999
   LAWLER, J.,

Plaintiffs, John and Nancy Neilson, appeal the order of this court dated August 5, 1999, denying their motion for post-trial relief. Pursuant to Pa.R.A.P. 1925(b), plaintiffs have submitted a concise statement of matters complained of .on appeal. This opinion is filed in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

During the summer of 1994, plaintiff Nancy Neilson developed severe pain in her right shoulder resulting from a large rotator cuff tear. When cortisone injections, physical therapy and other treatments failed to alleviate her symptoms, she elected to have surgery. On March 31, 1995, Dr. Robert E. Mannherz performed surgery to repair the tear. Unfortunately, surgical repairs of large tears like Mrs. Neilson’s have a failure rate of up to 50 percent, meaning as many as half never heal properly or are subsequently re-torn.

Following surgery, Dr. Mannherz prescribed physical therapy for the rehabilitation of Mrs. Neilson’s injured shoulder. The prescription was accompanied by a protocol. A protocol is a written outline of generally agreed concepts given by the treating physician to a physical therapist, as a set of guidelines for the patient’s therapy. The protocol followed in Mrs. Neilson’s case was Dr. Mannherz’ Type III Rotator Cuff Repair Rehabilitation protocol, which is used for large or complete tears. See plaintiffs’ exhibit P-5. Initially, Mrs. Neilson performed all of her therapy at home, assisted by her husband. Beginning on April 11, 1995, she also treated with defendant Bux-Mont Physical Therapy three times per week, in accordance with Dr. Mannherz’ prescription. During the early stages of her therapy Mrs. Neilson was permitted to perform only passive range of motion exercises.

On April 28,1995, in accordance with Dr. Mannherz’ protocol, her physical therapy regime was expanded to include “active assisted” exercises. “Active assisted” exercise means that the injured limb performs the exercise with assistance from an external force, whether it be another person, another limb, or a mechanical device. To complete one of these new exercises, Mrs. Neilson was instructed by therapist George Logue of Bux-Mont to lie flat on an exam table and lift an exercise wand towards the ceiling using both arms. While performing this exercise for the first time, Mrs. Neilson experienced considerable pain. Afterward, the pain continued, so she consulted Dr. Mannherz. It became apparent that the March 31 surgical repair had failed. In late June of 1995 she underwent a second surgery to repair her rotator cuff. Mrs. Neilson never regained full mobility of her shoulder following the second surgery, and her shoulder provides consistent discomfort.

In August 1996, plaintiffs John and Nancy Neilson filed a complaint against defendant Bux-Mont and its owner, Richard Ruoti Ph.D., P.T., alleging that improper physical therapy administered by defendants caused the re-tear of Nancy Neilson’s rotator cuff. A jury trial began on April 12,1999. The factual issue presented to the jury was whether the defendant properly administered the therapy in accordance with Dr. Mannherz’ protocol. At trial, this court overruled plaintiffs’ objection to the use of Pa.SSJI (Civ.) 10.04, regarding the “differing schools of thought doctrine.” The jury returned a verdict in favor of defendants.

ISSUES ON APPEAL

Plaintiffs appeal the jury verdict rendered in favor of defendants, and have filed a concise statement of matters complained of on appeal listing seven points of error. However, these seven points are more appropriately summarized in the following two issues: First, plaintiffs argue that the court erred by instructing the jury on the “differing schools of thought doctrine,” because that doctrine does not apply to physical therapists. Second, plaintiffs contend that even if the doctrine is applicable, the court’s instruction was erroneous because the defendants failed to establish the existence of a second school of thought relating to the plaintiff’s treatment.

DISCUSSION

1. The Differing Schools of Thought Doctrine Applies to Physical Therapists

Under the differing schools of thought doctrine, “a medical practitioner has an absolute defense to a claim of negligence when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach.” Jones v. Chidester, 531 Pa. 31, 33, 610 A.2d 964, 965 (1992). The plaintiffs argue that physical therapists are not medical practitioners entitled to use the defense. However, they cite no authority in support of their position. Instead, plaintiffs contend that physical therapists are neither permitted nor required to exercise their judgement in the treatment of patients to the degree that a physician or surgeon would. Plaintiffs view this supposed lack of discretion as negating physical therapists’ need for the doctrine’s protection. The better view is that the decisions made by physical therapists regarding the treatment of their patients fall squarely within the class of judgements the doctrine is meant to protect.

The purpose underlying the doctrine is “to remove from the jury’s discretion those matters requiring medical expertise, and on which medical experts disagree among themselves.” D’Angelis v. Zakuto, 383 Pa. Super. 65, 70, 556 A.2d 431, 433 (1989). It is based on the premise that a jury should not be forced to choose one body of medical opinion over another, where both are respected and each gamers a following within the medical community. Havasy v. Resnick, 415 Pa. Super. 480, 502, 609 A.2d 1326, 1336 (1992); D’Angelis, 383 Pa. Super. at 69, 556 A.2d at 432; Trent v. Trotman, 352 Pa. Super. 490, 496, 508 A.2d 580, 584 (1986). Although physical therapists are not usually medical doctors, they are members of a learned profession. Physical therapists are specially trained practitioners of the healing arts, and must be licensed in order to practice in Pennsylvania. See 63 P.S. §1301 et seq. Like a doctor’s, the physical therapist’s practice is governed by medical and scientific principles. Furthermore, as in medicine, differences of professional or medical opinion sometimes arise in the physical therapy field regarding the proper procedure for remedying a given injury. In deciding whether a physical therapist acted negligently, a jury should not be forced to choose one body of medical opinion over another when both views are respected and adhered to by a segment of the profession. A conflict among experts in the physical therapy field regarding the appropriate procedure to employ is essentially a matter requiring medical expertise, which should not be left to the jury’s discretion.

The case at bar aptly demonstrates the propriety of applying the doctrine to physical therapists. This case was filed as a professional malpractice action. It was filed against a defendant who was providing treatment of a medical nature to the plaintiff. Both parties submitted proposed jury instructions derived from standard medical malpractice jury instructions. Three doctors testified as medical experts on behalf of the parties regarding the standard of care and the propriety of the procedures used by defendants to implement Dr. Mannherz’ protocol. As a result, the court was confronted by conflict of professional opinion requiring medical expertise, which could not be left to a lay jury to resolve without charging them on the differing schools of thought doctrine.

As will be outlined more fully below, the parties’ respective experts established that there was more than one way to interpret the protocol, leaving the physical therapist to make a professional judgment. Even where there is a protocol in place to guide a physical therapist, he or she is required to exercise discretion in the interpretation and implementation of that protocol. Often, there is almost no guidance accompanying a prescription for physical therapy. Dr. Mannherz testified:

“My opinion is that I give very specific protocols to my therapists because I know what I did surgically and I’m ultimately responsible when something doesn’t work; and so, you can ask most therapists that get protocols for PT after rotator cuff repairs and most of them get a prescription that says, ‘Rotator cuff repair. Start rehab.’ I do it this way because I want to give that therapist guidelines to what to do.”

See plaintiffs’ exhibit P-10, video transcript, Dr. Mannherz at 82. He also stated that a lot of orthopedic surgeons give the therapist more leeway in terms of the patient’s treatment. Id. at 11. In such cases, the therapist must exercise even greater judgement and discretion.

2. Defendants Established a Second School of Thought Relating to Plaintiff's Treatment

The defendants presented enough evidence at trial to necessitate a jury instruction on the differing schools of thought doctrine. “Where competent medical authority is divided, a [physical therapist] will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” See Jones, 531 Pa. at 40, 610 A.2d at 969.

The two different schools of medical thought established in this case involve the proper procedure to be followed by a physical therapist when implementing Dr. Mannherz’ Type III Rotator Cuff Repair Rehabilitation Protocol. The instruction in the protocol at issue here simply states, “Begin active assisted abduction/external rotation to 90 degrees and 45 degrees respectively.” See plaintiffs’ exhibit P-5, (emphasis in original) This basic guideline leaves a therapist like George Logue considerable room to exercise his judgment and discretion. The crux of the conflict concerns whether the exercises performed by Mrs. Neilson on April 28, 1995 (involving reaching for the ceiling with both arms using a cane or exercise wand) were appropriate for that stage of recovery, and within the Type III protocol. According to the school of thought advocated by plaintiffs’ expert witnesses, the exercises employed by Mr. Logue amounted to negligence.

A. The School of Thought Advanced by the Plaintiffs

The testimony of Dr. Carl R. Goodman, plaintiffs’ medical expert, presented the school of thought adopted by the plaintiffs. He is a board-certified medical doctor, specializing in rehabilitation and physical medicine. See plaintiffs’ exhibit P-8, video transcript, Dr. Goodman at 11. In his video deposition, which was played for the jury at trial, Dr. Goodman opined that the exercises at issue were outside the standard of care for several reasons: First, they were beyond Dr. Mannherz’ protocol, which governed the physical therapy Bux-Mont was supposed to use. Id. at 13, 22-23, 29. Second, Mr. Logue failed to properly supervise the procedure because he did not use his own hands to provide assistance to a patient starting a new exercise. Id. at 13-14, 20-21, 24, 28. Third, the exercises at issue were active exercises, not active assisted exercises. Id. at 14, 27. Dr. Goodman concluded that these alleged breaches directly caused the failure of Mrs. Neilson’s rotator cuff repair. Id. at 24, 29.

Plaintiffs also played for the jury the videotaped deposition of Dr. Mannherz, Nancy Neilson’s treating surgeon. Dr. Mannherz is an orthopedic surgeon, licensed to practice medicine in Pennsylvania. His specialty is sports medicine. See plaintiffs’ exhibit P-10, video transcript, Dr. Mannherz at 5. Dr. Mannherz reiterated that in his medical opinion, the exercises performed by Mrs. Neilson violated the standard of care, for the same reasons stated by Dr. Goodman. Dr. Mannherz agreed that the exercises performed were outside the guidelines of his Type III protocol. Id. at 27, 32, 36-37. He also concluded that the April 28 exercises were active in nature, stating:

“My understanding of what [Mrs. Neilson] described was done on that day would have been an active program. She was given a cane or a wand to use in the arm, but what she described she did, with lifting the arm forward, away from the table, up over her head or away from her head, could not have been done without essentially using those muscles in her right arm actively without really assistance from the opposite side.” Id. at 31; see id. at 82. Dr. Mannherz also stated that in his opinion, the procedures performed with Mrs. Neilson at BuxMont on April 28,1995 caused the re-injury to her rotator cuff. Id. at 39-40.

In addition to corroborating the opinions posed by Dr. Goodman, however, Dr. Mannherz also acknowledged the potential for a second school of thought applicable to this case. On cross-examination, Dr. Mannherz discussed a text titled The Athlete’s Shoulder. Id. at 87. It was written by Dr. Andrews, with whom Dr. Mannherz previously trained. They worked together in developing Type I, II, and III protocols. Dr. Mannherz conceded that the text is authoritative in the field of shoulder surgery and subsequent physical therapy. Id. at 88. He acquiesced that Dr. Andrews follows a different school of thought, under which the exercises performed by Mrs. Neilson on April 28, 1999 would be appropriate at that stage of her rehabilitation. Id. at 88-95.

B. The Opposing School of Thought Advanced by the Defense

“The burden of proving that there are two schools of thought falls to the defendant. The burden, however, should not prove burdensome.” Jones, 531 Pa. at 40, 610 A.2d at 969. The trial court must initially determine whether the defendant has introduced sufficient evidence that there is a considerable number of professionals who agree with the defendant’s procedure or treatment. Id.

To sustain their burden of proving that an alternative school of medical thought exists relating to the plaintiff’s treatment, the defense introduced at trial the videotaped deposition of Dr. Joseph Iannotti. Dr. Iannotti is an orthopedic surgeon licensed to practice medicine in Pennsylvania. See defense exhibit D-5, video transcript of Joseph P. Iannotti M.D. at 6-7. His practice is limited to the shoulder, and he performs approximately 500 shoulder surgeries each year. Id. Dr. Iannotti testified:

“There is no rigid standard by which all orthopedic surgeons or all physical therapists provide rehabilitation after routine rotator cuff surgery ...
“Within the broad scope, there is no one gold standard that everyone says this is exactly how we all do it.” Id. at 12.

Speaking about the April 28, 1995 therapy session at issue in this case, Dr. Iannotti further indicated that the exercises performed by Mrs. Neilson were within the broad scope of accepted standards. Id. at 13. Later in the deposition, the following exchange took place:

“Q: Now, the exercises that were performed by Mrs. Neilson on April 28, 1995, you’re familiar with those?
“A: Yes.
“Q: In your opinion, were those active assisted?
“A: Yes. Absolutely.
“Q: And can you tell the jury why?
“A: Well they were done in the supine position, which—
“Q: Lying down?
“A: —lying down... and Mrs. Neilson had the use of a cane, an exercise wand. So she was using the left arm to assist the motion of the right arm
“And how the cane is used is variable, but nonetheless, however it’s used, there is assistance. So, by strict definition, that is active assisted range of motion, and it’s standard. I said earlier, Dr. Mannherz’ protocol is well within the standard of care for a routine primary rotator cuff repair, and my reading of protocol number three, which is Dr. Mannherz’ protocol for this type of surgery, was followed exactly.
“It was started — the wand exercises — at post-op week number five, plus one day.
“Q: And in your practice, do you see, and do you recommend those type of exercises to be performed at the same time interval—
“A: Absolutely.
“Q: —as performed by Mrs. Neilson?
“A: Yes. We do that approximately the same interval
“[A]gain, there is no standard by which you say every rotator cuff tear is done this way.” Id. at 19-21.

In Dr. Iannotti’s esteemed opinion, contrary to the school of thought advocated by plaintiffs, the exercises at issue in this case were clearly active assisted. Furthermore, unlike the plaintiffs, Dr. Iannotti considers the exercises to be within the protocol supplied by Dr. Mannherz. Dr. Iannotti also testified:

“Q: Doctor, we’ve heard opinions in this case from plaintiffs’ experts that the use of the wand or the cane is not active assisted. Do you agree with that?
“A: Absolutely not. I mean—
“Q: Can you tell the jury why, please?
“A: Again, it goes back to the issue of what we all learned, I mean, and what I teach, and what other people have taught me.
“There is a basis for what we do. You can argue that what we do is wrong, and that’s a legitimate argument, but we can’t argue on the basic terminology, because the terminology is how we communicate ...
“So the exercises that were done with the wand are absolutely within the standard of care ... In the medical language, that’s what active assisted range of motion is.
“Q: And is that supported in the medical literature?
“A: Absolutely. It’s in every standard textbook — shoulder textbook, orthopedic general textbook, rehabilitation textbook.
“Q: And, is that contained in any of the numerous publications that you yourself have written? Its—
“A: Absolutely. I’ve written two monographs on rota-tor cuff surgery, it’s the standard for rotator cuff repairs, published by the American Academy of Orthopaedic Surgeons, and in both of those monographs, it clearly explains what is active assisted range of motion.
“It clearly uses a wand as a device for active assisted range of motion. As I said, it’s the standard of care.”/d. at 22-24.

Here, Dr. Iannotti provided factual support for the defense’s assertion that a considerable number of recognized and respected professionals agree with his views. He references his own practice, but also his published works that have gone through the peer review process, and medical literature in the orthopedic and rehabilitation fields. He continued:

“Q: Doctor, in your opinion is the use of a wand or a broomstick in the supine position to raise the arms to 90 degrees an accepted active assisted exercise in patients such as Mrs. Neilson, for the beginning of five weeks post surgery?
“A: Yes, it is.
“Q: And what is the basis for your opinion?
“A: My basis is my own personal practice of hundreds and hundreds of rotator cuff repairs and patients who have had the surgery, and the basis of that opinion is also my thorough knowledge of the orthopedic literature and what is the standard of care.
“And my own work that’s in my curriculum vitae supports that. And that has gone through the peer review literature, meaning other people have read my papers before they were published and accepted that what I’ve written as being the standard of care is the standard of care.
“So it’s substantiated on many grounds.
“Q: And, is it proper to use an exercise wand five weeks after rotator cuff surgery?
“A: Absolutely.
“Q: And again, what is the basis for your opinion?
“A: The basis is the same three things. That is the standard by which I practice medicine, and I’m considered, I think, by most to be an authority and an expert in shoulder surgery.
“It’s based upon the orthopedic literature, which is written by other individuals as well as myself, all of which have gone through the scrutiny of peer review, and it’s standard.” Id. at 37-39.

Dr. Iannotti established that under his school of thought, the exercises at issue were active assisted, within the protocol, and appropriate for Mrs. Neilson’s stage of rehabilitation, without the need for George Logue to physically assist her.

At trial, this court determined that the defendants did meet their burden of establishing a second school of thought encompassing defendants’ alleged improper procedure. Defendants may provide the factual support necessary to support a jury instruction on the doctrine solely through testimony of expert witnesses. Gala v. Hamilton, 552 Pa. 466, 715 A.2d 1108 (1998). The testimony of Dr. Joseph Iannotti for the defendants was sufficient to establish that a considerable number of physical therapists and physicians support the course of treatment that Mrs. Neilson received at Bux-Mont. Dr. Iannotti established that under the school of thought supported by defendants, the procedures followed by physical therapist George Logue were well within the standard of care.

When the defendant meets its burden of substantiating that “its actions were sanctioned by a recognized school of thought,” the court must charge the jury on the doctrine. Jones, 531 Pa. at 40, 610 A.2d at 969. Here, this court was required to charge the jury accordingly. For the above reasons, this court included Pa.SS JI (Civ.) 10.04 in its charge of the jury, and signed the order of August 5,1999, denying plaintiffs’ motion for post-trial relief.


author: CORBETT, J.,

text:
    Rotary Drilling Equipment Inc. v. Knowles Insurance Associates
    C.P. of Lackawanna County,
    no. 98 CV 344.

      Richard S. Campagna, for plaintiff.

      Cody H. Brooks and John Gerard Devlin, for defendants.
    March 17, 2000
   CORBETT, J.,

Before the court are the motions for summary judgment filed by the plaintiff and the defendant Knowles Insurance Associates. For the following reasons both motions will be granted in this matter.

BACKGROUND

Plaintiff Rotary Drilling Equipment is in the business of selling heavy equipment, including but not limited to well drilling equipment. The equipment sold by plaintiff Rotary can be quite costly with some pieces having a value of up to $400,000. Plaintiff Rotary’s operations at the time at issue in this case was insured under a policy of inland marine insurance also known as equipment dealer’s coverage issued by defendant USF&G Insurance Company, now by acquisition St. Paul Fire & Marine Insurance Co.

The policy discloses three areas of coverage. The first covers property on plaintiff’s premises in the amount of $1,000,000. The second covers property in transit in the amount of $10,000. Nowhere in the policy is “property in transit” defined. The third area covers property not on plaintiff’s premises and not otherwise included in the first two coverages in an amount of $400,000.

The complaint in this matter alleges that Rotary purchased a 1996 Driltech Model T25K4W self-propelled drill press in Florida for the purpose of resale to a purchaser in Maine for the price of $355,000. The Driltech bore its own vehicle identification number, and was licensed to travel on the highway. On October 9, 1996, while being driven from Florida to Maine, the Driltech was damaged to the extent that it became a total loss. As a result of the accident, Rotary attempted to collect for the destruction of the Driltech under its policy with USF&G. In February 1997, after concluding that the Driltech was “property in transit,” USF&G would only cover Rotary for $10,000.

Rotary brought suit against Knowles and USF&G in June 1998, alleging that USF&G should pay for damage of the Driltech under the $400,000 policy limit for property not located outside the insured’s building and not defined as “property in transit.” Plaintiff’s complaint goes on to allege that USF&G investigated or failed to investigate the nature of plaintiff’s business and provided coverage that was inadequate and inappropriate. Plaintiff has also filed against Knowles Insurance Associates alleging that Knowles procured from USF&G a policy of insurance that was inadequate and inappropriate for plaintiff’s business.

Both the plaintiff and defendant have filed for summary judgment arguing that no genuine issues exist for trial and that defendant USF&G should be held to pay for the damage to the Driltech up to $400,000. Oral argument was held on March 9, 2000 and the court has reviewed the submissions of the parties; this matter is now ripe for decision.

DISCUSSION

Whether a particular loss is within the coverage of an insurance policy coverage is a question of law which may be decided on a motion for summary judgment. Lebanon Coach Co. v. Carolina Casualty Insurance Co., 450 Pa. Super. 1, 675 A.2d 279 (1996), alloc. denied, 546 Pa. 695, 687 A.2d 378 (1997). It is well established that “the interpretation of an insurance policy when facts are not in dispute is a question of law for the courts.” Contrans Inc. v. Ryder Truck Rental Inc., 836 F.2d 163, 166 (3d Cir. 1987). Unless the contract itself is ambiguous, a court should give effect to its plain and ordinary meaning and not consider extrinsic evidence in that determination. Houghton v. American Guaranty Life Insurance Co., 692 F.2d 289, 291 (3d Cir. 1982). However, where language is clear and unambiguous, a court may consider extrinsic evidence only when an exclusion is added after a policy is renewed or paid for, if an insurer misleads the insured regarding the scope of the policy’s coverage, or if there is some other reasonable basis for the insured to have formed expectations contrary to the language of the exclusion. Childrens Aid Society of Montgomery County v. Great American Insurance Co., 1995 U.S. Dist. Lexis 5591 (E.D. Pa. 1995).

The appropriate standard of review for granting a motion for summary judgment where the interpretation of an insurance policy is sought is twofold: first, the pleadings and all discovery material must demonstrate that there exists no genuine issue of fact; second, the moving party must be entitled to judgment as a matter of law. Tenos v. State Farm Insurance Co., 716 A.2d 626, 628 (Pa. Super. 1998). Summary judgment is only granted in cases that are clear and free from doubt. Id. “Our Supreme Court has indicated that the proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured.” Dibble v. Security of America Life Insurance Co., 404 Pa. Super. 205, 210, 590 A.2d 352, 354 (1991). (citations omitted) Accord Britamco Underwriters v. Grzeskiewicz, 433 Pa. Super. 55, 639 A.2d 1208 (1994). “Courts must examine the totality of the insurance transaction involved to ascertain the reasonable expectations of the consumer.” Dibble, supra at 210, 590 A.2d at 354 (citing Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978), cert. denied, 439 U.S. 1089). (citations omitted) “Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled.” Id. at 211, 590 A.2d at 354. “However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies,... an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous.” Britamco, supra, 433 Pa. Super. at 60, 639 A.2d at 1210.

Therefore, this court will begin by first examining the language at issue in this case. By a plain reading of the contract it is clear that the term “property in transit” is nowhere defined in the insurance policy. In the deposition of Thomas Tryson, an insurance specialist for USF&G, he testified that “property in transit” could be defined to include or exclude several situations. This testimony indicates that “property in transit” is susceptible to more than one meaning and this court as a matter of law finds the term ambiguous. Where ambiguities are found, they must be construed in favor of the insured. Ryan Homes Inc. v. Home Indemnity Co., 436 Pa. Super. 342, 346, 647 A.2d 939, 941 (1994). Ambiguous language in an insurance contract must be construed against the drafter of the policy. Koppers Co. v. Aetna Casualty and Surety Co., 158 F.3d 170 (1998).

In the instant matter, it is clear to this court that the reasonable expectations of the insured was that the equipment would be covered up to $400,000. Mr. Tryson testified that the expectation of the insured was probably that the equipment at issue was covered by the $400,000 policy limit instead of the $10,000 limit. Since the language in the policy is ambiguous, this court will construe it against the insurer and find the Driltech to be property other than “property in transit” or property on the insured’s premises. Therefore, there are no genuine issues of material fact left for trial and summary judgment is granted. An appropriate order to follow.

ORDER

And now March 17, 2000, after consideration of the submissions and oral arguments of the parties, it is hereby ordered and decreed that the motions for summary judgment filed by the plaintiff and defendant Knowles are granted. Finding that the term “property in transit” to be ambiguous, this court holds that the “Driltech” at issue in this case covered under the insurance policy up to $400,000.


author: KIESER, J.,

text:
    Wein v. The Williamsport Hospital & Medical Center

      C.P. of Lycoming County,
    no. 96-01,744.

      Clifford A. Rieders, for plaintiffs.

      David R. Bahl, for defendants./
    April 19, 2000
   KIESER, J.,

The matter presently before the court in this medical malpractice case is a motion to compel discovery responses, filed by plaintiffs December 16, 1999. Plaintiffs served interrogatories on defendant Williamsport Hospital seeking, inter alia, the names, addresses and telephone numbers of former employees. The hospital replied by furnishing only the names of the former employees, stating that contact was to be made through its counsel. See motion to compel exhibit 1. By letter dated . October 4, 1999, plaintiffs’ counsel again requested the addresses and telephone numbers. Id., exhibit 3. Defense counsel wrote a reply October 12,1999, indicating that the request was a surprise “since I don’t think in my entire legal career I have ever had anyone insist upon addresses and telephone numbers . . . .” Id, exhibit 4. Defense counsel pointed out that a corresponding issue existed as to whether plaintiffs’ counsel would have the right to communicate with (present or past) employees ex parte. Id. By letter dated November 10, 1999, plaintiffs’ counsel responded that he had “every right” to communicate, ex parte, with past employees of the hospital and in some cases, even current employees. Motion to compel, exhibit 5. Obviously, defense counsel was not persuaded, as this matter is now before the court.

The motion before this court requests names, addresses and telephone numbers of present and former hospital employees. In their brief and at oral argument, plaintiffs advised the court they were narrowing their request to former employees only. The hospital has provided no authority which would prohibit plaintiffs from obtaining this information. Accordingly, the motion to compel will be granted. The hospital will be required to provide plaintiffs’ counsel with the last-known telephone numbers and addresses; the hospital is under no obligation to update the information in its possession, if it has not already done so in preparation of this case.

The motion itself does not address the appropriateness of plaintiffs’ counsel engaging in ex parte communications with former employees of the hospital, yet counsel have both briefed this issue and argued it to the court. Should we decline to address the issue, we have no doubt it will return to us shortly. Therefore, in the interests of judicial economy, we will now consider it.

Despite statements by defense counsel that the law is “exceedingly clear” with regard to this question, neither side has produced controlling authority on this issue. Both sides rely on case law from other jurisdictions, which is persuasive, but not controlling. The case law cited by the parties considers Rule 4.2 of the Rules of Professional Conduct. Rule 4.2 provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Nothing in this statement is directly on point with respect to the issue, which is now before the court. More importantly, both base their arguments primarily not on case law but rather on the second paragraph of the comment to Rule 4.2 of the Rules of Professional Conduct:

“In the case of an organization, this rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the party of the organization.” (emphasis added)

We first call counsel’s attention to the portion of the preamble to the Rules of Professional Conduct entitled “Scope,” wherein the following is set forth:

“Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any. substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

Furthermore, “Comments do not add obligations to the rules but provide guidance for practicing in compliance with the rules.” Id. Notwithstanding these restrictions, counsel now asks this court to interpret and apply the comment to Rule 4.2 to this proceeding.

.Rule 4.2 was considered by Judge Wettick in Pritts v. Wendy’s of Greater Pittsburgh Inc., 37 D.&C.4Ü1 158 (C.R Allegheny Cty. 1998). In Pritts, Wendy’s had sought a protective order, to prohibit the defense from conducting ex parte interviews with present and former employees. Wendy’s based its request solely on Rule 4.2 and the accompanying comment. Judge Wettick observed that courts should not interfere with efforts by counsel to interview witnesses except to enforce well-recognized prohibitions. Id. at 161. Acknowledging that the Pennsylvania Supreme Court has ruled that courts may not use the Rules of Professional Conduct to alter substantive law or evidentiary rules, the judge was nevertheless willing to render a decision, finding that a court order based on (disciplinary) Rule 4.2 barring an attorney from communicating with another party who is represented by counsel did not impact on the substantive law and rules of evidence that would govern the litigation. Id. at 162.

Judge Wettick denied the motion for a protective order with respect to both present and former employees. With regard to former employees, Judge Wettick found that neither the text of Rule 4.2 nor its comment specifically referred to former employees and thus did not prohibit ex parte communications with former employees.

Judge Wettick’s decision is consistent with both , the position of the Pennsylvania Bar Association and the American Bar Association. In formal opinion 90-142, dated December 7, 1990, the Legal Ethics and Professional Responsibility Committee of the PBA determined that a lawyer may engage in ex parte communications with former employees of an opposing party if appropriate safeguards are employed to minimize the risk of overreaching by the investigating party. The committee concluded that ex parte communication is allowed under the following conditions: (1) the attorney is prohibited from elicting or using any information that may be protected by attorney-client privilege; (2) the attorney must immediately disclose his or her capacity to the former employee; (3) any request by the person contacted that his or her personal attorney, or the company’s attorney, be present must be honored; and (4) the attorney should advise the person that they have the right to refuse to be interviewed, or if they wish, to be interviewed with the company’s counsel present.

In formal opinion 91-359, dated March 22, 1991, the Committee on Ethics and Professional Responsibility of the ABA also indicated that ex parte communications with former employees was acceptable if certain safeguards were observed. These safeguards mirror those set forth in the PBA opinion (discussed supra). The ABA did acknowledge that because an organization necessarily acts through others, the concerns reflected in the comment to Rule 4.2 may survive the termination of the employment relationship. However, the committee concluded that a lawyer may communicate about the subject of the representation with an unrepresented former employee of a corporate party, without consent of the corporation’s lawyer, as long as the investigating lawyer was careful not to induce the former employee to violate any attorney-client privilege and “punctiliously” complied with the requirements of Rule 4.3 of the Rules of Professional Conduct, dealing with unrepresented person and communicating with one of adverse interest (listed as the safeguards, supra).

In the instant case, we understand the hospital’s natural preference that its counsel be present whenever its former employees are contacted by opposing counsel. Nevertheless, there is simply no law or rule under which such contact is prohibited. Absent a violation of the safeguards as set forth, this court has no authority to preclude plaintiffs’ ex parte communications with former employees of the hospital.

ORDER

And now, April 19, 2000, plaintiffs’ motion to compel is hereby granted. The Williamsport Hospital is directed to provide the names and last-known addresses and telephone numbers of former employees to plaintiffs as requested within 20 days of the date of this order.

      . The complaint alleges defendants are liable for substandard c.are with respect to Christian A. Wein, who died after a tonsillectomy.

      . Both parties have filed briefs in support of their respective positions. Oral argument was held February 14, 2000.

      . The motion to compel originally sought addresses and telephone numbers of all “prospective witnesses,” whether current or former employees of the hospital. However, plaintiffs have narrowed the scope of information they seek, asking only that the addresses and telephone numbers of former employees be disclosed. See brief in support of plaintiffs’ motion to compel complete responses p. 2.

      . Brief of defendant Williamsport Hospital filed February 4,2000, p. 4; on p. 6, the hospital claims the law is “patently clear.”

      . In the case law update to formal opinion 90-142, dated May 1995, the PBA again indicated that ex parte communications with former employees of a company was allowed when the above safeguards were observed.


author: NEALON, J.,

text:
    Doe v. Curran

      C.P. of Lackawanna County,
    no. 97-CV-3636.

      James E. Colleran and James I. Devine, for plaintiffs.

      John R. Lenahan Jr. and George E. Mehalchick, for defendant Curran.
    May 4, 2000
   NEALON, J.,

Defendant, Bernard J. Curran Ed.D., has filed preliminary objections challenging the legal sufficiency of the plaintiffs’ claim for punitive damages and seeking to strike as scandalous the allegation that plaintiff, Jane Doe, was unaware of Dr. Curran’s alleged practice of initiating sexual relations with his psychology patients. The averments that Dr. Curran lured Ms. Doe into sexual activity with him and thereafter destroyed her records in an effort to conceal his conduct are sufficient to justify the potential recovery of punitive damages. Since Ms. Doe’s ignorance of Dr. Curran’s sexual habits is relevant to rebut the contention that the parties’ relationship was consensual, it is material to an issue in this case and will not be stricken.

I. FACTUAL BACKGROUND

According to the averments of the complaint that was filed on July 30, 1999, Jane Doe and her 14-year-old daughter began receiving psychological treatment from Dr. Curran in December 1996. Ms. Doe maintains that she “did not know and could not have known before she started treatment with him that Bernard J. Curran Ed.D. had a history of improperly engaging in sexual contact with patients who had sought his professional services.” (See plaintiffs’ complaint, ¶¶3-5.) Following that initial consultation, Dr. Curran reportedly initiated sexual contact with Ms. Doe on two separate occasions “and forced and coerced [her] into inappropriate sexual behavior in violation of his professional duties and obligations to his patient, consistent with his predatory covert nature and techniques of taking improper advantage of individuals who seek his professional services.” (Id., ¶7.)

The Does charge Dr. Curran with “negligence, carelessness, gross negligence, recklessness, outrageousness and intentional misconduct” for allegedly: (a) employing psychological techniques to lure Ms. Doe into sexual activity; .(b) raping Ms. Doe and committing assault and battery; (c) failing to disclose his sexual predilections to Ms. Doe before she became a patient; and (d) intentionally and negligently inflicting emotional distress. (Id., ¶8.) Ms. Doe seeks to recover compensatory and punitive damages from Dr. Curran based upon his foregoing conduct, as well as his destruction of treatment records which “would prove that [Ms. Doe] was his patient and that would tend to implicate him.” (Id., ¶10.) Additionally, Mr.' Doe asserts a derivative claim for the loss of his wife’s society and consortium. (Id., ¶12.)

In his preliminary objections, Dr. Curran seeks to strike the averment in paragraph 5 of the complaint that Ms. Doe was unaware of his habit of instigating sexual contact with patients. Dr. Curran argues that such an allegation should be stricken pursuant to Pa.R.C.P. 1028(a)(2) since “[Ms. Doe’s] knowledge of [Dr. Curran’s] alleged history of engaging in sexual contact with patients has no relevance in proving a claim of negligence against him.” (See defendant’s brief, p. 3.) The Does counter that Ms. Doe’s ignorance of Dr. Curran’s proclivities is germane to rebut his anticipated defense that Ms. Doe consented to their sexual contact.

Dr. Curran further demurs to the Does’ request for punitive damages on the grounds that the facts alleged “are clearly insufficient to support a claim for punitive damages” and that the purported destruction of Ms. Doe’s records “can only be characterized as an error of judgment.” (Id., pp. 4-5.) The Does posit that Dr. Curran’s actions do constitute outrageous, wanton, willful or reckless conduct warranting the recovery of punitive damages. The parties filed their supporting memoranda of law on October 25,1999 and October 28,1999, and following the completion of oral argument on April 27, 2000, this matter was submitted for a decision.

II. DISCUSSION

(A) Standard of Review

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. White v. PennDOT, 738 A.2d 27, 31 (Pa. Commw. 1999), When considering preliminary objections, all material facts set forth in the challenged pleading are admitted as true, as well as all inferences reasonably deducible therefrom. DeMary v. Latrobe Printing Co., 2000 WL 10232, ¶5 (Pa. Super. 2000); Main Line Health Inc. v. CAT Fund, 738 A.2d 66, 69 n.13 (Pa. Commw. 1999). Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. Pacuariu v. Commonwealth, 744 A.2d 389, 391 n.1 (Pa. Commw. 2000); White, 738 A.2d at 31. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Edwards v. Germantown Hospital, 736 A.2d 612, 614 (Pa. Super. 1999); Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Commw. 1999).

(B) Psychologist Liability

Not unlike other health care providers, psychiatrists and psychologists are subject to liability for malpractice or professional negligence. See e.g., A. McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128 (1993); McKenna v. Mooney, 388 Pa. Super. 298, 565 A.2d 495 (1989). Pennsylvania courts have had occasion to review the disposition of administrative actions filed against mental health professionals who participate in sexual relations with their patients. See Starr v. State Board of Medicine, 720 A.2d 183 (Pa. Commw. 1998) (affirming revocation of psychiatrist’s license to practice for violating 63 P.S. §422.41(8) by engaging in sexual relations with patients); Morris v. State Board of Psychology, 697 A.2d 1034 (Pa. Commw. 1997) (upholding revocation of psychologist’s license to practice for violating section 8(a) of the Professional Psychologists Practice Act, 63 P.S. § 1208(a), and the Code of Ethics, 49 Pa. Code §41.61, by participating in sexual intimacies with clients); Giddings v. State Board of Psychology, 669 A.2d 431 (Pa. Commw. 1995) (affirming suspension of psychologist’s license for violating principle 6, section (b) of the Code of Ethics by having a sexual relationship with his patient). Regrettably, there is no reported Pennsylvania case law discussing the elements of a civil cause of action against a psychologist who induces a patient to engage in sexual activity with him. But see Physicians Insurance Co. v. Pistone, 555 Pa. 616, 726 A.2d 339 (1999) (physician who exposed himself to a patient as he masturbated and fondled her breasts was not entitled to coverage by his professional liability insurer since his acts were not “professional health care services”).

Other jurisdictions have employed varying approaches in addressing claims for damages against psychiatrists or psychologists who participate in sexual relations with patients. Although some states have created a cause of action by statute, see e.g., Patricia C. v. Mark D., 12 Cal. App. 4th 1211, 1214, 1220-21, 16 Cal. Rptr. 2d 71, 72, 76 (1993), others have recognized a common-law claim for sexual battery or negligence. See Noto v. St. Vincent’s Hospital, 142 Misc.2d 292, 295-96, 537 N.Y.S.2d 446, 448-49 (1988) (patient who was coerced into sexual activity by her psychiatrist may recover for medical malpractice and intentional infliction of emotional distress, but not for lack of informed consent in the absence of any contention that the sexual relationship was part of the proposed psychiatric treatment): The Supreme Court of Nevada has concluded that a patient advancing a claim of “sexual advantage” against her physician who allegedly enticed her into a sexual relationship must demonstrate that (1) the physician held a superior authoritative position in the professional relationship, (2) the patient was vulnerable as a result of her illness, (3) the physician exploited that vulnerability, and (4) the exploitation was the proximate cause of any claimed harm. Hoopes v. Hammargren, 102 Nev. 425, 432, 725 P.2d 238, 243 (1986). If the sexual relationship is consensual, the patient may also be required to support her claim with expert testimony. See Sunsinger v. Perez, 2000 WL 365972, *3 (Tex. App.-Beaumont April 6, 2000) (“summary judgment is warranted based upon [the patient’s] failure to present expert testimony in order to show that Dr. Perez’s conduct, including his having sexual relations with her, was outside the applicable standard of care”).

In her complaint, Ms. Doe asserts a cause of action for medical battery and rape predicated upon Dr. Curran’s unauthorized and offensive contact with her body. See Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130-31 (Pa. Super. 1999) (in a medical battery case, there need be no physical injury, but only some unpermitted touching). In addition, Ms. Doe seeks to recover damages for intentional infliction of emotional distress on the basis that Dr. Curran’s “behavior is so extreme as to go beyond all bounds of decency.” Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571, 577 (Pa. Super. 1999); Gebert v. Granaban, 101 Lacka. Jur. 75, 85-87 (1999). Ms. Doe likewise advances a claim for negligent infliction of emotional distress which apparently resulted from Dr. Curran’s unintentional conduct that deviated from the appropriate standard of care. See Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 28 (Pa. Super. 2000) (a plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm); Yanchick v. Tyler Memorial Hospital, no. 98-CV-5256, Nealon, J., at pp. 7-11 (Lacka. Cty. February 28, 2000).

(C) Dr. Curran’s History of Sexual Misconduct

In anticipation of Dr. Curran’s defense that the sexual relations were consensual, Ms. Doe has averred that she was unaware of Dr. Curran’s alleged pattern of sexually assaulting his patients. Dr. Curran seeks to strike any allegations concerning his supposed practice of stimulating sexual contact with patients as violative of Pa. R.C.P. 1028(a)(2) which precludes the inclusion of any “scandalous or impertinent matter” in a pleading. To be considered scandalous or impertinent, the allegations “must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

If Ms. Doe had sought Dr. Curran’s services at a time when she knew or suspected that he had a proclivity to engage in sexual contact with patients, she arguably may have consented to such a relationship or assumed the risk that such conduct would occur. Montgomery, 742 A.2d at 1130 (in a medical battery case, consent to being touched is a defense). Accord In re Hasay, 666 A.2d 795, 799 (Pa.Ct.Jud.Disc. 1995) (intimate sexual activities between a district justice and an adult female were consensual and did not warrant judicial discipline), aff’d in part, rev’d in part on other grounds, 546 Pa. 481, 686 A.2d 809 (1996); Commonwealth ex rel. Preate v. Danny’s New Adam & Eve Bookstore, 155 Pa. Commw. 281, 292-93, 625 A.2d 119, 125 (1993) (private sexual conduct by consenting adults is not prohibited by Pennsylvania law even if it consists of atypical sex practices that some may consider immoral). Ms. Doe’s contention that she was ignorant of Dr. Curran’s alleged history when she first entered into a professional relationship with him is relevant to an element of her proof, i. e., that their sexual contact was non-consensual.

Independent of the relevance of Ms. Doe’s knowledge or lack thereof, evidence of Dr. Curran’s sexual history vis-á-vis his patients may also be admissible to demonstrate his habit or routine practice of sexually assaulting patients. Evidence that a person has performed a certain act on a given date is generally not probative of a contention that [s]he has committed a similar act at another time. General Equipment Manufacturers v. Westfield In surance Co., 430 Pa. Super. 526, 549, 635 A.2d 173, 185 (1993), app. denied, 537 Pa. 663, 644 A.2d 1200 (1994); Gurevitz v. Piczon, 42 D.&C.4th 308, 323 (Lacka. Cty. 1999). However, a person’s habit or custom “is admissible to show what occurred in a specific instance depending] on the ‘invariable regularity’ of the usage or habit” which “make it probable that it would be carried out in every instance or in most instances.” Baldridge v. Matthews, 378 Pa. 566, 570, 106 A.2d 809, 811 (1954); Liles v. Balmer, 389 Pa. Super. 451, 456, 567 A.2d 691, 693 (1989). The common-law concept of habit and routine practice denoting conduct that occurs with fixed regularity in repeated specific instances has been codified in Pa.R.E. 406 which provides that “[e]vidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”

Where the person’s knowledge or intent is a material fact to be proved, the commission of a similar act at a different time is particularly relevant. General Equipment Manufacturers, supra at 549-50, 635 A.2d at 185; Baumeister v. Baugh & Sons Co., 142 Pa. Super. 346, 353, 16 A.2d 424, 427 (1940). Instantly, the Does seek to recover punitive damages from Dr. Curran, and for the reasons articulated in section (D) below, Dr. Curran’s intent or state of mind is material to any claim for punitive damages. Thus, Dr. Curran’s alleged pattern of sexual misconduct is not only germane to the consent issue in this case, but is also relevant to the request for punitive damages. Accordingly, Dr. Curran’s request to strike paragraph 5 of the complaint as scandalous or impertinent will be denied.

(D) Punitive Damages

Dr. Curran further demurs to the Does’ request for punitive damages. In particular, Dr. Curran maintains that the contention that he destroyed Ms. Doe’s treatment records is insufficient to support a punitive damages claim. Alternatively, Dr. Curran requests that the Does be required to file a more specific pleading since he “does not know exactly what allegations are being made against him” by Ms. Doe and “is not able to properly file a responsive pleading or prepare a defense for trial.” (See defendant’s brief, p. 5.)

Unlike compensatory damages, punitive damages are penal in nature and are designed to deter and punish egregious behavior. G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127, 1129 (1998); Taylor v. Albert Einstein Medical Center, 723 A.2d 1027, 1037 (Pa. Super. 1998). Punitive damages may be awarded if the actor’s conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others. Althaus by Althaus v. Cohen, 710 A.2d 1147, 1159 (Pa. Super. 1998), appeal granted, 556 Pa. 701, 729 A.2d 1124 (1998); Shumek v. Scranton Counseling Center, 100 Lacka. Jur. 173, 179 (1999). Because a medical battery “connotes an intentional invasion of another’s rights, punitive damages may be assessed in an appropriate case.” Montgomery, 742 A.2d at 1132.

Based upon the allegations of the complaint, a jury could conclude that Dr. Curran’s sexual behavior alone was outrageous, wanton or recklessly indifferent. As to the purported expungement of Ms. Doe’s records, Pennsylvania courts have been reluctant to recognize an independent cause of action for a party’s negligent spoliation of evidence in an existing or anticipated civil case. See e.g., Elias v. Lancaster General Hospital, 710 A.2d 65 (Pa. Super. 1998); Kelly v. St. Mary Hospital, 694 A.2d 355 (Pa. Super. 1997). Notwithstanding that fact, the Does may, at a minimum, be entitled to remedial sanctions against Dr. Curran in the form of an adverse inference instruction to the jury or the entry of summary judgment as to a specific issue. Schroeder v. PennDOT, 551 Pa. 243, 250-52, 710 A.2d 23, 27 (1998); Tenaglia v. Procter & Gamble Inc., 737 A.2d 306, 308 (Pa. Super. 1999).

The Does argue that Dr. Curran discarded his treatment records to facilitate his fraudulent denial of a psychologist-patient relationship with Ms. Doe and to conceal his inculpatory conduct. If the Does can establish that Dr. Curran intentionally eradicated his records for that purpose, he may be precluded from denying the existence of a psychologist-patient relationship or the jury may be instructed that it may draw such an inference from the extermination of the records. Dr. Curran’s spoliation of potentially incriminating evidence may also demonstrate actual knowledge of his unethical acts and, therefore, may be indicative of a continuing pattern of egregious and reprehensible conduct that may justify the recovery of punitive damages.

Finally, Dr. Curran alternatively requests that the Does be compelled to file a more specific pleading. A complaint must apprise the defendant of the claims being asserted and provide a synopsis of the essential facts supporting those claims. Miketic v. Baron, 450 Pa. Super. 91, 104, 675 A.2d 324, 330-31 (1996). The factual averments of a complaint must be sufficiently specific to enable the defendant to prepare a defense and responsive pleading. Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498, 505-506 (1974).

Examining the Does’ complaint in its entirety, the factual allegations concerning the basis for the punitive damages claim are sufficiently specific. It is disingenuous for Dr. Curran to claim in his preliminary objections that he “does not know exactly what allegations are being made against him” by the Does. Ms. Doe’s allegations have been extensively described in the criminal charges filed against Dr. Curran and were summarized by Judge Minora more than 15 months ago as follows:

“[Ms. Doe] maintains that these incidents occurred while she was a patient of [Dr. Curran] and while she was attending counseling sessions with him. [Ms. Doe] stated that at her initial visit to [Dr. Curran’s] office, there was no sexual contact. However, [Ms. Doe] alleges that on her second appointment with [Dr. Curran], she was alone with him when [Dr. Curran] exposed his penis and began masturbating in front of her. During this counseling session, [Ms. Doe] alleges that [Dr. Curran] then took her hand, placed it on his penis and caused [Ms. Doe] to masturbate him. Subsequently, [Ms. Doe] contends that [Dr. Curran] caused [Ms. Doe] to perform oral sex on him without her consent.
“On [Ms. Doe’s] third visit to [Dr. Curran’s] office, [Ms. Doe] stated that her intention was to confront [Dr. Curran] over what had previously occurred. When [Ms. Doe] arrived at [Dr. Curran’s] office again there were no other persons present. At this visit, [Dr. Curran] picked [Ms. Doe] up and forcibly carried her into another room where there was a reclining chair, placed her on the chair and pulled her pants down below her knees. [Ms. Doe] told [Dr. Curran] not to do that and she began kicking. [Dr. Curran] then exposed his penis, got on top of [Ms. Doe] and, without [Ms. Doe’s] consent, placed his penis inside [Ms. Doe’s] vagina. [Dr. Curran] asked [Ms. Doe] if she was taking birth control pills and then ejaculated inside her. After ejaculation, [Dr. Curran] went into the bathroom and [Ms. Doe] got dressed and left the building.” Commonwealth v. Curran, supra at pp. 2-3.

Consequently, Dr. Curran is well aware of the accusations being made against him by Ms. Doe and clearly possesses enough information to file a responsive pleading and prepare a defense. An appropriate order will follow.

ORDER

And now, May 4,2000, upon consideration of the preliminary objections of defendant, Bernard J. Curran Ed.D., the memoranda of law submitted by the parties, and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections of defendant, Bernard J. Curran Ed.D., are denied; and

(2) The defendants are directed to file a responsive pleading to the complaint within 20 days of the date of this order.

      . The Commonwealth has filed criminal charges against Dr. Curran based upon his alleged sexual conduct towards Ms. Doe. In that criminal proceeding, Judge Carmen D. Minora ruled that testimony would be admissible from three other patients of Dr. Curran who engaged in sexual contact with him under substantially similar circumstances. See Commonwealth v. Curran, 97-CR-1850, Minora, J., at pp. 10-11 (Lacka. Cty. January 19, 1999).


author: MOTTO,

text:
    In the Interest of J.H.
    C.P. of Lawrence County,
    no. 20274 of 1999.

      Michael Wish, assistant district attorney, for Commonwealth.

      Carmen F. Lamancusa, for defendant.

      December 21, 1999
   MOTTO,

This case is before the court on the juvenile’s motion to suppress evidence. The defendant-juvenile, J.H., is charged with possession of a controlled substance, 35 P.S. §780(a)(16), and intent to deliver a controlled substance, 35 P.S. §780(a)(30).

On June 14,1999, Sergeant Thomas Macri of the New Castle Police Department was on duty when he received a call from the manager of the Eat ’n Park restaurant located in New Castle, Lawrence County, Pennsylvania. The manager informed Sergeant Macri that there was a continuous flow of unwanted vehicular traffic through the Eat ’n Park parking lot, causing congestion in the lot. The manager requested that Sergeant Macri go to the parking lot and correct the situation.

Sergeant Macri arrived at the parking lot and began directing the flow of traffic while on foot. He stopped each car which entered the lot, but failed to park and patronize the restaurant. Sergeant Macri informed each driver that he/she was not permitted to simply drive through the parking lot.

After Sergeant Macri had stopped between three and five cars, he stopped a vehicle that was occupied by a driver, the juvenile, and two other passengers. When the driver of the vehicle opened his window, Sergeant Macri detected a strong odor of burnt marijuana emanating from inside the vehicle. Sergeant Macri recognized the driver and the other two occupants in the vehicle and had knowledge that they had been involved with illegal drugs in the past.

Sergeant Macri ordered all four individuals to exit the vehicle. Sergeant Macri then searched the exterior of the juvenile’s clothing. While conducting a pat-down search of the junveile, Sergent Macri felt two small bags, the weight and texture of which he thought felt to be marijuana. The juvenile was then searched more thoroughly, and Sergeant Macri found 14.5 grams of marijuana and a small package of cocaine in the juvenile’s pockets. A subsequent second search of the juvenile conducted at the police station lockup area revealed one oxycodone pill.

The juvenile argues that the initial stop of the vehicle and the pat-down of the juvenile were unlawful. Therefore, the juvenile contends that the evidence found on his person should be suppressed as fruit of the poisonous tree. The court disagrees.

In Commonwealth v. Stainbrook, 324 Pa. Super. 410, 471 A.2d 1223 (1984), two police officers were on patrol. As part of the routine patrol, the officers drove their cruiser into the parking lot of a bowling alley to make certain that there was no one loitering in the lot. A truck was parked at one end of the lot. The officers approached the truck and detected the odor of burning marijuana emanating from inside the vehicle. The appellant sat in the truck and was observed to bend over abruptly as if to stuff something underneath his seat. One of the officers asked appellant to lift up his j acket which lay on the floor of the truck. A plastic bag containing marijuana was exposed, and the officers placed appellant under arrest.

In deciding that the marijuana was lawfully gathered as evidence, the court noted that the police officers’ presence in the parking lot was undisputedly justified as part of their routine patrol. The police had been requested by the owner of the lot to watch for loitering, and the police were justified in approaching the truck.

In the case sub judice, Sergeant Macri lawfully stopped the vehicle in which the juvenile was seated as a passenger. Sergeant Macri’s police duties include regulating the flow of traffic. The Eat ’n Park manager requested the presence of Sergeant Macri in the lot for the purpose of preventing unwanted drivers from using the lot as a regular roadway or a “cruising” area. Therefore, Sergeant Macri was justified in stopping the vehicle and to warn the driver to not congest the parking lot. See id.

Once Sergeant Macri stopped the car, he lawfully requested that the juvenile exit the vehicle. Concern over the safety of our police officers mandates that a police officer maintain the authority to order a driver out of a vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989), the Pennsylvania Superior Court determined that the same rationale applies to passengers in a lawfully-stopped vehicle when the officer has an articulable basis to believe that criminal activity is afoot. Today, a police officer may request both drivers and their passengers to alight from lawfully-stopped vehicles regardless of whether the police officer has a reasonable suspicion that criminal activity is afoot. Commonwealth v. Brown, 439 Pa. Super. 516, 528, 654 A.2d 1096, 1102 (1995), alloc. denied, 544 Pa. 642, 664 A.2d 972 (1995).

In the instant case, in accordance with Brown, supra, once the car was lawfully stopped, Sergeant Macri had the authority to order the occupants out of the car. The court additionally finds that since Sergeant Macri detected a strong smell of burnt marijuana emanating from within the car, his observation of marijuana smoke created an articulable suspicion that contraband was present and that criminal activity was afoot.

A search without a warrant is generally unreasonable. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). There are, however, exceptions to the warrant requirement. One of those exceptions was articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the Supreme Court held that a police officer can “stop and frisk” an individual for weapons on an articulable suspicion that wrongdoing may be afoot and that the subject may be armed. The Terry rationale is based upon the legitimate interest in allowing an officer to protect himself or herself. Commonwealth v. Morris, 422 Pa. Super. 343, 619 A.2d 709 (1992), alloc. denied, 534 Pa. 654, 627 A.2d 731 (1993).

The matter at issue here, in terms of constitutional analysis, is not a “search,” but, rather, a “frisk,” a distinction with its roots in Terry, supra. The standard for a “reasonable articulable suspicion” to believe that a subject may be armed and dangerous, thereby allowing a Terry frisk, is a suspicion that is less than probable cause but more than a hunch. The determination is based on the totality of the circumstances, as seen by the trained police officer. Commonwealth v. Johnson, 444 Pa. Super. 289, 293, 663 A.2d 787, 789 (1995), citing Commonwealth v. Epps, 415 Pa. Super. 231, 608 A.2d 1095 (1992).

Based on the following circumstances, the court finds that Sergeant Macri had a reasonable concern for his safety, sufficient to allow a brief and minimally-intrusive pat-down of the juvenile. Primarily, case law indicates that the very nature of a vehicle stop is particularly perilous for police officers, thereby allowing an officer to order both drivers and occupants out of a vehicle. Brown, supra; see Maryland v. Wilson, 519 U.S. 408, 137 L.Ed.2d 41, 117 S.Ct. _ (1997); Mimms, supra; Commonwealth v. Shelly, 703 A.2d 499 (Pa. Super. 1997), alloc. denied, 555 Pa. 743, 725 A.2d 1220 (1998); Morris, supra; Elliott, supra. Here, there were four occupants in the vehicle, three of which were known to have been associated with illegal drugs in the past. Sergeant Macri was easily outnumbered should a dangerous situation arise. It would have been nearly impossible for Sergeant Macri to be completely aware of the movements of all four occupants.

Next, Sergeant Macri was on foot and was the sole police officer on the scene. Had the juvenile or his companions been armed, Sergeant Macri would have been in a compromising position since he was alone and exposed without the protection of his police cruiser. Lastly, Sergeant Macri had evidence showing that the occupants may have smoked marijuana. The effects of marijuana on the occupants may then have caused them to behave irrationally and dangerously.

In conclusion, the facts of the case indicate that the initial stop and subsequent pat-down search of the juvenile was lawful. The contraband found on the juvenile’s person was lawfully obtained pursuant to a pat-down search. Therefore, the juvenile’s motion to suppress the evidence gathered must be denied.

      . The court notes that it would be a dereliction of a duty for a police officer “to ignore the obvious aroma of an illegal drug which he/she was trained to identify.” Stainbrook at 415, 471 A.2d at 1225; Commonwealth v. Stoner, 236 Pa. Super. 161, 166, 344 A.2d 633, 635 (1975).

      . In analyzing the issue, the court finds the following language in Shelly particularly persuasive: “If [concern for a police officer’s safety] was a legitimate concern in 1963 when the events in Terry occurred, a fortiori, it is a concern in the violent world of the late-1990s.” Shelly at 503.