author:
SCHULTZ, Member,
     CUNNINGHAM III, Member,

text:
    In re Anonymous No. 114 D.B. 98

      Disciplinary Board Docket no. 114 D.B. 98.
    December 5, 2000
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SCHULTZ, Member,

REPORT AND RECOMMENDATIONS OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

Pursuant to Rule 208(d) (2) (iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

Petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent, [ ], on October 14,1998. The petition contained three charges. Charge I alleged that respondent commingled client and personal funds in her accounts. Charge II alleged that respondent neglected a client’s divorce matter. Charge III alleged that respondent neglected a client matter in a civil action. This charge was withdrawn at the pre-hearing conference due to the unavailability of a witness. Respondent filed an answer to the petition for discipline on February 16, 1999.

Hearings were held on June 22, 1999, and July 14, 1999, before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ . ], Esquire. Respondent did not appear.

The committee filed a report on November 1, 1999, and found that respondent violated the Rules of Professional Conduct as charged in the petition. The committee recommended a suspension for a period of three years.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of February 2, 2000.

n. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom on April 20, 1960, and was admitted to practice law in the Commonwealth of Pennsylvania on June 10, 1988.

(3) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania. Pa.R.D.E. 201(a)(3).

(4) By order dated December 3,1997, effective January 2, 1998, the Supreme Court of Pennsylvania transferred respondent to inactive status pursuant to Pa.R.D.E. 219.

Charge I: Commingling, Conversion and Fiduciary Matters in General

(5) From July 28, 1992, to July 18, 1996, respondent maintained an account at [A], account no. [ ] (old account no. [ ] ), said account captioned “[respondent] escrow account [ ]” (“[B] account”).

(6) From June 28, 1994, to January 31, 1995, respondent maintained an account at [C] Bank, [ ], [ ] Region, account no. [ ], said account captioned “[respondent] escrow account [ ]” (“[D] account”).

(7) On her annual attorney registration statements for fiscal years 1993-1994,1994-1995, and 1995-1996, and on an application for resumption of active status 1996-1997 (respondent used this form even though her registration status was “active”), respondent failed to disclose the financial institutions in which respondent held fiduciary funds and certified she was in compliance with R.P.C. 1.15.

(8) Respondent deposited personal funds in both the [D] account and the [B] accounts.

A. The [E] Matter

(9)On September 12, 1994, [E], an employee of [F] Inc., suffered a work-related injury as a result of the alleged negligence of a third party, [G]. [F’s] compensation carrier was [H].

(10) Thereafter, [E] retained respondent to represent him in pursuing third-party claims against [G], with respondent to receive a fee of 33 1/3 percent of any recovery.

(11) On March 28, 1995, respondent and [¶] entered into an agreement whereby respondent would receive from [¶] a fee of $500 as compensation for negotiating a settlement of [H’s] statutory subrogation lien under 77 Pa.C.S. §671.

(12) Thereafter, respondent negotiated a settlement, in the amount of $7,000, of [E’s] claims against [G] through its insurer, [I].

(13) On July 5, 1995, respondent and [¶] agreed that [¶] would receive $2,166 in settlement of the subrogation lien, and respondent confirmed the terms of the settlement by letter of that date.

(14) On July 12, 1995, respondent deposited into the [B] account a $7,000 settlement check received from [I] after obtaining [E’s] endorsement.

(15) Respondent prepared a distribution sheet for [E’s] signature which showed that the funds were to be distributed as follows: $2,501 to [E]; $1,666 to [H]; $2,833 to respondent ($2,333, one-third of the recovery, plus $500 for settling [H’s] lien). On or about July 13, 1995, respondent forwarded checks to [E] and [¶] in said amounts.

(16) Thereafter, respondent wrote checks which reduced the balance in the [B] account to an amount less than the amount of the check forwarded to [H], resulting in respondent’s account falling “out of trust.”

(17) On or about July 18, 1995, [¶] negotiated check no. 1654 which was returned to [¶] on July 24,1995, for insufficient funds.

(18) Between July 28, 1995, and April 4, 1996, [H’s] Workers’ Compensation Subrogation Unit Case Manager, [J], telephoned respondent on numerous occasions and requested that a certified replacement check be issued.

(19) On July 28, 1995, and April 4, 1996, respondent received [J’s] messages, telephoned [¶] several times and advised that she would send a replacement check.

(20) Thereafter, respondent failed to contact [J].

(21) On May 7, 1996, [J] telephoned the number to respondent’s office, but respondent’s phone had been temporarily disconnected.

(22) By letter dated May 7, 1996, sent to respondent by regular and certified mail, [J] demanded payment within 30 days.

(23) [¶] retained [K], Esquire, who sent a letter to respondent demanding payment within two weeks.

(24) Respondent received the letters but did not respond.

(25) In late August 1996, respondent relocated her practice to her residence at [ ]. ([L] residence address).

(26) Respondent failed to advise [¶] of her new address or to take any action to reimburse [H].

(27) By DB-7 letter dated March 21, 1997, petitioner put respondent on notice of the allegation of failure to distribute the sum due [H].

(28) In response to the DB-7 letter, respondent asserted that the check issued to [¶] had been returned due to the deduction of a bank fee and that [J] could have contacted respondent by contacting attorney registration.

(29) Under cover of a letter dated March 25, 1997, to [J], respondent forwarded one money order made payable to [¶] in the amount of $1,000 and a second money order made payable to [¶] in the amount of $166. Said checks failed to fully satisfy the monies due [H].

Charge II: The [M] Matter

(30) In October 1994, respondent agreed to represent [M] in obtaining a divorce for a fee of $250, which was paid by [M].

(31) Respondent failed to deposit the fee into an escrow account until lawfully disbursed or earned.

(32) Although respondent told [M] that his divorce would be finalized in six months, she failed to take any action to secure a divorce.

(33) Between May 1995 and June 1997, [M] telephoned respondent on several occasions. On each occasion, respondent advised [M] that the divorce would be finalized within a short period of time of the call.

(34) In or about 1996, respondent contacted [M] and advised him that she was ill and decreasing her workload, that she was no longer maintaining an office in [ ] but doing legal work at home, and she provided him with an 800 telephone number. Further, respondent represented to [M] that two complaints had been filed on his behalf.

(35) On June 17, 1997, [M] telephoned the 800 number and left a message for respondent. [M] telephoned that same number the following day but the telephone had been disconnected.

(36) On June 19, 1997, in an effort to locate respondent, [M] went to respondent’s [ ] office address. Respondent was no longer renting the premises.

(37) Unaware of respondent’s whereabouts, on or about June 26, 1997, [M] filed a disciplinary complaint and was provided with respondent’s [L] residence address.

(38) By letter dated July 21, 1997, [M] requested respondent advise him of the status of his divorce matter and provide proof that respondent had filed a complaint in divorce.

(39) Respondent received the letter sent by regular mail.

(40) On August 1, 1997, respondent mailed a letter dated July 15, 1997, to [M] advising that the divorce complaint was not filed and “all legal matters in [respondent’s] possession will be filed by September 1, 1997....”

(41) On or about August 29, 1997, [M] sent a letter requesting that respondent send proof of filing to his new address.

(42) Respondent did not respond to this letter.

(43) In response to a DB-7 letter dated September 11, 1997, respondent, inter alia, alleged that [M] owed her money and represented she would complete the matter and send copies of filed documents and an additional bill.

(44) By undated letter postmarked March 23,1998, to petitioner, respondent again represented that a complaint in divorce would be filed.

(45) Respondent did not file a divorce complaint.

(46) In or about May 1998, [M] retained and paid $160 to [N], Esquire, who filed a divorce complaint in [ ] County on May 14,1998, and obtained a final decree in divorce on July 30, 1998.

(47) Respondent has no record of discipline.

III. CONCLUSIONS OF LAW

By her actions as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(3) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(4) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(5) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(6) R.P.C. 1.16(a)(1) — A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law.

(7) R.P.C. 1.16(a)(2) — A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

(8) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

(9) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(10) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(11) Pa.R.D.E. 203(b)(3) via (former) Pa.R.D.E. 219(d)(1)(iv) — which stated that on or before July 1 of each year all persons required by this rule to pay an annual fee shall file with the administrative office a signed statement on the form prescribed by the office setting forth a statement that the attorney is familiar and in compliance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct regarding the handling of funds and other property of clients and others.

IV. DISCUSSION

This matter comes before the board on a petition for discipline charging respondent with violation of numerous Rules of Professional Conduct based on mismanagement of client funds and neglect of client matters. Hearings were held on June 22 and July 14, 1999. Respondent did not appear. Petitioner presented evidence of service on respondent. After unsuccessful attempts to make personal service of the petition for discipline, petitioner, on December 15, 1998, effectuated mail service pursuant to Pa.R.D.E. 212 (substituted service). On February 10, 1999, petitioner made additional attempts to make personal service of the petition. On February 16, 1999, respondent filed an answer. Respondent was served by mail with notice of the disciplinary hearing dates.

Petitioner has the burden of proving ethical misconduct by a preponderance of the evidence that is clear and satisfactory. Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981). Review of the record indicates that petitioner met its burden of proof. The evidence shows that respondent commingled funds in both of her fiduciary accounts; wrote checks that were returned for insufficient funds; failed to preserve complete records of fiduciary funds; failed to disclose the names of financial institutions in which client funds were held; converted and/or kept for personal use funds belonging to clients or medical providers; and failed to respond to inquiries from clients. Respondent further failed to deposit unearned and filing fees into a trust account and neglected a divorce matter over the course of three years.

After finding that respondent violated the Rules of Professional Conduct, the dispositive issue before the board is the measure of discipline to be imposed as a result of this misconduct. The board must consider all aggravating and mitigating circumstances present and recommend a sanction that best effectuates the purpose of this Commonwealth’s system of lawyer discipline, which is to assess the fitness of the lawyer and to protect the public and the integrity of the bar.

Respondent was an unwilling participant at best in the disciplinary process. Although she responded to the DB-7 letter of inquiry initiated by petitioner, she did not fully respond to requests for records, sending only selected materials to petitioner. Respondent subsequently ignored a subpoena for client records. Respondent later relocated to Louisiana without providing a current address to the lawyer assessment office, as she was obligated to do. Respondent filed an answer to the petition for discipline that was sarcastic and vulgar in nature and totally inappropriate. Respondent made allusions to health problems in her answer to the petition and in her supplemental response to the DB-7 letter, but did not substantiate her claims. Respondent did not appear at the pre-hearing conference held on March 26, 1999, or at the disciplinary hearings held in June and July of 1999.

The hearing committee recommended a suspension for a period of three years. The committee considered respondent’s overall misconduct relating to her maintenance and administration of fiduciary funds, which included her conversion of funds and failure to keep full and complete client financial records. Respondent performed her duties as an attorney with an air of neglect and carelessness. This same philosophy permeated respondent’s attitude toward the disciplinary system. The only mitigating circumstance present in this matter was respondent’s lack of a prior record.

The board is in agreement with the committee’s recommendation of a three-year suspension. The case law supports a three-year suspension. In general, although there is no per se rale for discipline in conversion cases, where the conversion is intentional or is accompanied by misrepresentation or deception, the discipline imposed is a suspension of at least one year. Mishandling of client monies is a serious breach of trust which cannot be tolerated. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983); Office of Disciplinary Counsel v. Lewis, 493 Pa. 519, 426 A.2d 1138 (1981).

In the matter of In re Anonymous No. 67 D.B. 92, 27 D.&C.4th 202 (1994), an attorney deposited funds recovered on behalf of a client into his escrow account, and then converted the funds by drawing at least 11 checks to pay personal and business expenses. After the client initiated a disciplinary investigation, the attorney refused to produce his financial records and client files and honor a subpoena for their production. The attorney did not appear at the disciplinary hearing. This attorney had no prior record. The Supreme Court imposed a three-year suspension.

The facts of the case at bar are quite similar to the cited case. The underlying misconduct engaged in by respondent is aggravated by her behavior subsequent to petitioner’s investigation of the charges against her. Respondent chose to play games with petitioner and ultimately leave the area without a forwarding address instead of facing her disciplinary problems. Her failure to appear at the hearings deprived the hearing committee of the opportunity to hear respondent’s version of events and assess her fitness to practice law. The conclusion that must be drawn in the face of this behavior is that respondent is not fit to practice law at this time, nor should the public be deceived that she is competent to solve their legal problems.

For these reasons, the board recommends that respondent be suspended for a period of three years.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], shall be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of three years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Scaricamazza did not participate in the February 2, 2000 adjudication.

Board Members Nix and Elliott did not participate in the consideration and disposition of this matter.

Board Members Halpem, Iole, Cunningham, Stewart and Peck dissented and would recommend disbarment.

DISSENTING REPORT AND RECOMMENDATION OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

CUNNINGHAM III, Member,

December 5, 2000— The report and recommendation of the Disciplinary Board is that respondent be suspended from the practice of law for a period of three years. I am writing in dissent to recommend that respondent be disbarred.

The board bases its recommendation on In re Anonymous No. 67 D.B. 92, 27 D.&C.4th 202 (1994). However, that case concerns an attorney who victimized one client. The instant case is more like Office of Disciplinary Counsel v. Passyn, 537 Pa. 371, 644 A.2d 699 (1994), where this court disbarred an attorney who victimized two clients, as well as lied to her clients, the lawyers fund for client security, and the court.

The Hearing Committee found that respondent in the instant case victimized several clients and engaged in a course of conduct which was dishonest and unprofessional. On July 12,1995, she deposited a settlement check on behalf of her client [E], and then made out checks to “cash” and for various personal expenses. She knowingly converted funds belonging to her client and others. This resulted in negative balances in her escrow account on 16 occasions. In response to the DB-7 letter she received from Office of Disciplinary Counsel, respondent falsely asserted that she had made good on checks that had been dishonored only because of banking fees. She was evicted from her [ ] law office and relocated to [ ] without notifying the people to whom she owed money, including money she was holding in escrow. She also did not notify attorney registration of her change in address, another fact which she misrepresented in her response to the DB-7 letter. At various times during 1994, respondent converted fiduciary funds belonging to three other clients and several medical providers.

Respondent was retained by [M] to represent him in obtaining a divorce. She accepted $250 in cash and gave him a receipt showing “paid in full.” She did not deposit the money into her escrow account, although it represented unearned fees and costs. She had promised to file for divorce in [ ] County, but took no action to secure [M’s] divorce. She repeatedly lied to him about the status of his matter. In her response to the DB-7 letter dated September 11, 1997, respondent gave false excuses for the delay, falsely alleged that [M] owed her money, and represented that she would complete the matter and send copies of filed documents and an additional bill to [M]. Instead, at a cost of $ 160, [M] had to hire another lawyer in May 1998 who filed a divorce complaint in [ ] County that same month and obtained a final decree for [M] on July 30, 1998.

At the time of the Hearing Committee report, August 6, 1999, there were eight unsatisfied default judgments against respondent for office rent, office supplies, court reporter services, [ ] business privilege tax, and [ ] net profits tax; these judgments totaled $21,008.89. There was a Commonwealth Department of Revenue tax lien for $811.62.

Respondent submitted an answer to the petition for discipline which the Hearing Committee described as, “frivolous, not in conformance with the requirements of D.B. Rules 89.54(b), threatening in nature and vulgar.” The Hearing Committee was being kind in their characterization. In fact, respondent’s typed response was five short enumerated sentences. She wrote in part, “don’t fuck with my family”; she called her clients “ungrateful pricks”; and concluded with “If for some reason you are staying in touch with me because you like me and want some pussy — too bad — you can’t have any!!!!!!!!”

Why would we reinstate this respondent and unleash her on the public again in just three short years?

In Office of Disciplinary Counsel v. Kanuck, 517 Pa. 160, 535 A.2d 69 (1987), an attorney’s commingling of clients’ funds and the borrowing of those funds resulted in a five-year suspension. Misappropriation of client funds is a serious offense that may warrant disbarment. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983); Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982); Office of Disciplinary Counsel v. Lewis, 439 Pa. 519, 426 A.2d 1138 (1981). As the court noted in Lewis: “A client must . . . rest assured that any financial transactions carried out on the client’s behalf will be scrupulously honest, will be accounted for at the client’s request, and will involve full and immediate payment of funds that are due and owing to the client. This public trust that an attorney owes his client is in the nature of a fiduciary relationship involving the highest standards of professional conduct.” Id. at 529, 426 A.2d at 1143. Although the court has disbarred attorneys who have commingled or improperly shifted funds in escrow accounts, the court has declined to adopt a per se rule requiring disbarment for specific acts of misconduct. Lucarini. Instead, the court considers each case individually, evaluating all relevant facts. Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997).

Clearly, respondent’s discipline warrants a suspension of anywhere from three years to disbarment. Having reached this decision, we must determine whether any additional factors exist that would warrant disbarment rather than a suspension.

The additional misconduct in the instant case can only be seen as an aggravating factor. In Office of Disciplinary Counsel v. Holston, 533 Pa. 78, 619 A.2d 1054 (1993); and, Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981), it was clearly determined that false statements to a tribunal can result in disbarment. Although respondent’s repeated lies to clients and in the disciplinary proceedings standing alone in this case do not mandate disbarment, they are aggravating factors. Combined with respondent’s other misconduct, they leave no choice but to recommend that respondent be disbarred.

ORDER

And now, March 23, 2001, a rule having been entered upon respondent by this court on January 25, 2001, to show cause why she should not be disbarred and no response thereto having been filed, it is hereby ordered that the rule is made absolute, [respondent] is disbarred from the bar of this Commonwealth and she shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

      . Office of Disciplinary Counsel requested that the Hearing Committee suspend for four years and require a psychological examination to determine respondent’s mental competency to practice law. The Hearing Committee recommended a three-year suspension.

      . See Hearing Committee report, findings of fact 11 through 33.

      . See Hearing Committee report, finding of fact 48a.

      . See Hearing Committee report, findings of fact 45 and 48b.

      . See Hearing Committee report, finding of fact 48b.

      . See Hearing Committee report, findings of fact 52 through 56.

      . See Hearing Committee report, findings of fact 57 through 76.

      . See Hearing Committee report, findings of fact 77 and 78.

      . This and her untruthful response to the DB-7 were her only responses. She did not otherwise participate in the process.

      . See Hearing Committee report, finding of fact 79.


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Hahn v. St. Luke’s Hospital

      May 2, 2002
    C.P. of Lehigh County,
    no. 1999-C-1375V.

      Susan L. Luckenbill and Stephen D. Rhoades, for plaintiff.

      Paul E. Laughlin, for defendant.
   FORD, J.,

This is a medical malpractice case wherein the jury ruled in favor of the defendant hospital. We denied post-trial motions. A timely appeal to the Superior Court followed. Because of the appeal, we file this opinion to explain the reasons for denial of the post-trial motions.

A significant trial ruling was made which permitted the defense to introduce evidence that the plaintiff, Anthony Granata, was declared disabled by the Social Security Administration prior to the alleged injury in this case, and that Mr. Granata was eligible for Social Security benefits as a result of that declaration of incapacity. Our ruling on this issue was the crux of the post-trial motions and is the crux of the appeal to the Superior Court.

PROCEDURAL AND FACTUAL HISTORY

Suit was brought by Dorothy Hahn on behalf of Anthony Granata. Dorothy Hahn is the guardian of the estate and person of Anthony Granata. She is also his sister.

Anthony Granata is mentally retarded with Down’s syndrome. He was admitted to the defendant hospital on September 22, 1997, with a critical, unrelated, left subdural hematoma. He was successfully treated for the presenting problem. However, the plaintiff’s evidence showed that hospital personnel accidentally left a tourniquet on Mr. Granata’s arm which caused permanent injury to the arm and other permanent injuries about the body. Plaintiff presented evidence that Mr. Granata was permanently disabled from working as a result of the tourniquet injuries.

A number of months after Mr. Granata’s hospital stay, his guardian applied on his behalf for Social Security benefits. He was granted benefits, effective September 1,1997, a date which was several weeks before the tourniquet incident. The Social Security Administration found Mr. Granata disabled, not as a result of the injury to the arm, but rather because of his mental condition.

The jury trial was conducted from May 30, 2001 to June 6,2001. In response to interrogatories, the jury found that, although the hospital was negligent, the negligence was not a substantial factor in bringing about plaintiff’s injuries. The court entered a molded verdict in favor of the defendant and against the plaintiff.

The first witness for the plaintiff at trial was Dorothy Hahn. We initially ruled that defense counsel could not inquire of her about the finding of disability made by the Social Security Administration. However, after reflection, we believed our ruling to be in error. Accordingly, we reversed it sua sponte. This resulted in Ms. Hahn’s being recalled to the stand and, in response to defense questions, acknowledging the finding of disability by the Social Security Administration, effective a few weeks before the allegedly disabling tourniquet injury. As correctly noted by plaintiff’s counsel in the brief in support of the post-trial motions, the disability found by the Social Security Administration was used by defense counsel to discredit the testimony of plaintiff’s economic expert, Mr. Andrew Verzilli.

The plaintiff argued that our ruling permitting the admission into evidence of the Social Security Administration’s finding of disability was error. Plaintiff claimed that the mistake was compounded by the judge’s instruction that was given on the issue of disability. We quote from the portion of the charge that addressed this issue.

“As I told you earlier, if you find that one of the defendant’s nurses was negligent in regard to a tourniquet, this issue of disability must then be decided by you. In deciding if the plaintiff is disabled due to the incidents alleged here with the tourniquet, consider all of the evidence that was admitted for your determination.” (The court then listed the people who testified on the issue of disability.)

“On this same issue about past earnings, future earnings, you heard that the plaintiff applied for Social Security disability benefits in 1998, and was found disabled from work by the Social Security Administration effective a few days before the alleged tourniquet incident. And was found disabled due to conditions not related to the tourniquet incident, and has been receiving money benefits. You may also consider these factors in deciding if plaintiff suffered any compensable disability from the alleged tourniquet incident.

“Ladies and gentlemen, the plaintiff is entitled to be compensated for the amount of earnings that he has lost up to the time of trial, as a result of his injuries resulting from a tourniquet incident. This amount is the difference between what he probably could have earned but for the harm, and any less sum which he actually earned in any employment. However, I think the evidence was there have been no earnings since the time of the alleged tourniquet incident. And again, you heard the evidence pertaining to disability from Social Security, as far as payments.” (The court continued to provide further instruction in regard to determination of disability without further mention of Social Security.) 6/6/01 N.T., pp. 89-91.

A reading of the entire charge, in regard to disability, past earnings and future earnings, is suggested.

Post-trial motions for judgment n.o. v. and for new trial, were timely filed on June 18, 2001. The motions were briefed and argued. We denied the motions with our order which was signed on December 17, 2001, and filed on December 18, 2001. A timely notice of appeal to the Superior Court was filed on January 17, 2002.

In the section which follows, we make mention of other facts pertaining to the Social Security issue, and we address the testimony of Nancy Kent which was a secondary issue raised by the plaintiff in her post-trial motions.

DISCUSSION

In her opening statement, the attorney for the plaintiff argued that, had Anthony Granata not become injured at St. Luke’s Hospital as a result of the tourniquet incident, he would have continued working as long as he could. The plaintiff’s plan was to have the jury hear about only one incident that could have caused disability in Anthony Granata, namely, the tourniquet event of September 26, 1997.

However, there were other conditions that accounted for disability in Mr. Granata, namely, his cognitive deficits. We permitted the jury to hear these other conditions in Mr. Granata which were directly relevant to the disability claimed by the plaintiff. Mr. Granata applied for Social Security benefits through his guardian. He was granted those benefits, effective September 1, 1997, a date only several weeks before the tourniquet incident. The Social Security Administration found Mr. Granata disabled, not as a result of the injury to the arm, but rather because of his mental condition.

Plaintiff’s counsel argued that the evidence about the Social Security determination was irrelevant and inadmissible under the collateral source rule. Defense counsel argued that the evidence was relevant, was directly contrary to the assertion made by plaintiff and was not prohibited collateral source information. Despite an initial ruling to the contrary, we determined that defense counsel was accurate and that a full and truthful airing of all of the factors on the issue of disability required the introduction of the Social Security determination.

The court still left the determination of disability to the jury and made it clear to the jury, from the instruction quoted above, that the determination by the Social Security Administration of disability, accepted by the plaintiff, was one of many factors, under the evidence that it must consider in evaluating the claim of disability stated by the plaintiff.

As stated, plaintiff argued that our ruling was made in violation of the collateral source rule. Under this rule, payments from a collateral source shall not diminish the damages otherwise recoverable from a wrongdoer. The rationale of the rule is that it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be released of responsibility for the wrong. Moorhead v. Crozer Chester Medical Center, 705 A.2d 452, 455 (Pa. Super. 1997), alloc. granted, 557 Pa. 630, 732 A.2d 616 (1998).

Implicit in the collateral source rule is that there is only one injury involved, although there may be multiple sources of funds to compensate a given plaintiff for the injury. As properly noted by defense counsel in his brief, “the evidence concerning Mr. Granata’s Social Security disability determination was not introduced to reduce damages attributable to his arm, but rather to rebut plaintiff’s contention that his inability to work was attributable . . .” to the arm incident only. Thus, this is not a collateral source issue at all.

Plaintiff cites a variety of cases on collateral source and related principles but none is directly applicable to the issue we have before us. Here, unlike in those cases, plaintiff took advantage of a source of funds for a disabling condition which pre-dated the allegedly disabling tourniquet event.

Plaintiff wanted to restrict the jury to an incomplete and misleading view of Mr. Granata’s alleged disability. We opted to allow the complete view so the jury could make an informed determination. There was no legal bar to our doing that and fairness to both sides required our allowing this relevant information.

The only other issue raised in the post-trial motions which was briefed pertained to the court’s permitting Nancy Kent to testify for the defense over objection. The challenge to the court’s ruling in this regard is without merit.

Nancy Kent worked for an organization called Human Resources Center. In 1997, it was retained by J.C. Penney’s, then Anthony Granata’s employer, to evaluate Mr. Granata and to generally assist him in the performance of his functions at J.C. Penney’s. Ms. Kent was specifically assigned to work with Mr. Granata.

One of the documents prepared by Ms. Kent when she did this work on behalf of J.C. Penney’s was exhibit D-5. This contained her commentary about Mr. Granata and the performance of his work. D-5 was unsigned but it is uncontroverted that it was prepared by Ms. Kent.

The only point to the testimony of Nancy Kent was to authenticate exhibit D-5. Defense counsel then moved its admission as a business record. We admitted the document over objection.

As the exchange between the attorneys before Ms. Kent’s testimony demonstrates, defense counsel believed he had an authenticity stipulation for exhibit D-5 in that it was part of the J.C. Penney documents, as to which there was an authenticity stipulation for the remainder of those documents. When he was told there was no stipulation for D-5 (apparently because it was unsigned), defense counsel conducted an investigation to determine who prepared the document and discovered Ms. Kent. This was on the eve of trial. Ms. Kent was not identified as a witness for the defense in pretrial submissions.

The only objection by the defense to the calling of Ms. Kent was one of surprise, because she was not listed in pretrial submissions. We evaluated the claim of surprise and rejected it in view of the fact that plaintiff’s counsel was in possession of exhibit D-5 well in advance of trial and apparently had the document for as long as the defense counsel.

In view of the misunderstanding pertaining to the stipulation and in view of the fact that Ms. Kent did no more than authenticate the document and read certain portions of it, the trial court acted within its authorized discretion in permitting the witness to testify. The trial judge has broad powers concerning the conduct of the trial, especially in regard to admission of evidence. The trial judge must exercise his discretion soundly and will only be reversed where there is a clear abuse of discretion. Santarlas v. Leaseway Motorcar Transport Co., 456 Pa. Super. 34, 40, 689 A.2d 311, 313 (1997).

We note that the plaintiff raised a weight of the evidence argument in the post-trial motion. The motion itself does not specify in what fashion the evidence was deficient. Additionally, the brief that was filed in support of the post-trial motion did not address the weight of the evidence issue. As to this argument, the plaintiff has not complied with Pa.R.C.P. 227.1(b)(2) in that the motion does not specify the basis for relief. Plaintiff has also not complied with Leh.R.C.P. 227.1(b) and (c) in regard to briefing. Accordingly, the weight of the evidence argument is waived.

For the reasons specified herein, we properly denied the post-trial motions.

ORDER

Now, May 2, 2002, it is hereby ordered that the clerk of courts, civil division, immediately send the record of this case to the Superior Court of Pennsylvania.


author: MOTTO, J.,

text:
    Commonwealth v. Kirklin

      June 24, 2002
    C.P. of Lawrence County,
    no. 1284 of 2000, CR.

      Brigitte Tolvanen, assistant district attorney, for Commonwealth.

      Harry O. Falls, public defender, for defendant.
   MOTTO, J.,

The defendant, while confined under juvenile court order to the youth development center in Lawrence County, Pennsylvania, spit on a counselor, as a result of which he was found guilty by the court, following a non-jury trial, of the offense of aggravated harassment by prisoner, a felony of the third degree, in violation of section 2703.1 of the Crimes Code.

Before the court for disposition is the defendant’s post-verdict motion for judgment of acquittal wherein defendant argues that he cannot be found guilty of the offense charged because he was not a person confined in or committed to “any local or county detention facility, jail or prison or any state penal or correctional institution or other state penal or correctional facility located in this Commonwealth ...

The precise issue is whether the youth development center located in Lawrence County, Pennsylvania, constitutes a state correctional institution or facility within the meaning of section 2703.1 of the Crimes Code.

For the reasons hereafter set forth, the court concludes that a youth development center constitutes a state correctional institution or facility; therefore, the defendant’s motion for judgment of acquittal must be denied. The issue before the court is a question of first impression as the court has been unable to locate any Pennsylvania court decision which has precisely addressed this issue as it relates to a youth development center. The statute which the defendant was found guilty of violating, section 2703.1 of the Crimes Code, 18 Pa.C.S. §2703.1, provides in its entirety as follows:

“Section 2703.1. Aggravated harassment by prisoner

“A person who is confined in or committed to any local or county detention facility, jail or prison or any state penal or correctional institution or other state penal or correctional facility located in this Commonwealth commits a felony of the third degree if he, while so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed, intentionally or knowingly causes or attempts to cause another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or material.”

In Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000), the Superior Court, in construing the same criminal statute, concluded that a police lock-up was, in fact, a local or county detention facility as contemplated by the statute. In so concluding, the court noted that the provisions of the Crimes Code are construed according to the fair import of their terms and further pointed out that pursuant to 18 Pa.C.S. §105, “when the language is susceptible of different constructions, it should be interpreted to further the general purposes [of the Crimes Code] and the special purposes of the particular provision involved ....” 716 A.2d at 192.

Although section 2703.1 addresses conduct which occurs in a jail or prison or a state penal institution, it also provides for culpability relative to conduct occurring in a state “correctional” facility or institution. Thus, the question becomes whether or not a youth development center qualifies as a “correctional” institution or facility.

The statute clearly provides for a correctional facility to be something other than a jail or penal institution since it refers to “a state penal or correctional facility.” (emphasis added)

The purpose of a youth development center is set forth in 62 P.S. §341, relating to state institutions as follows:

“Section 341. Purpose the purpose of the youth development centers is to promote and safeguard the social well-being and general welfare of minors of this Commonwealth by providing social services and facilities for the rehabilitation of delinquent minors who require care, guidance and control.” (emphasis added)

Since the stated purpose of a youth development center, by statute, involves rehabilitation, the court finds that the rehabilitation aspect of the purpose of a youth development center is consistent with corrections. The purpose of a correctional facility is rehabilitation. Therefore, since the purpose of confinement of a delinquent minor to a youth development center includes rehabilitation, it must also be considered a correctional facility. An individual ordered to placement in a youth development center through the provisions of the Juvenile Code is as much confined or committed as a defendant in a criminal case who may be sentenced to serve imprisonment in a penal institution.

In construing the statute to further the general purposes of the Crimes Code and the special purposes of the specific statute with which the defendant has been charged in this case, it would be consistent with the purposes of the statute to impose culpability on an adult defendant confined in a youth development center. The evidence in this case showed that many of the individuals committed to the youth development center have committed violent crimes. Defendant himself was one such person and was confined to a 23-hour lock-down. The individuals who are responsible for the care and control of the juveniles committed to the youth development center are subject to the same harassment and dangers as those responsible for the care and control of individuals sentenced to penal institutions or other types of correctional institutions or facilities. It is further noted that the youth development center is as secure a facility as many prisons as it is encompassed by two perimeters of chain-link fencing topped with razor wire.

In recent years, the juvenile justice system has undergone a transformation, as pointed out in In the Interest of J.F., 714 A.2d 467 (Pa. Super. 1998), as follows:

“As appellants correctly point out, the juvenile justice system has undergone a transformation over the past two decades in which there has been a move away from the rehabilitation and protection of juvenile offenders toward more punishment and correctional oriented policies .... The recent amendments to the Act are a reflection of the changing nature of juvenile crime, as society has witnessed a progression in the number of violent offenses committed by juveniles.” 714 A.2d at 471.

The 1995 amendments to the Juvenile Act substantially modified the stated purposes of the Juvenile Act and affected considerations relating to disposition of juvenile offenders.

Section 6301(b)(2) of the Juvenile Act, 42 Pa.C.S. §6301(b)(2) provides as follows:

“(b) Purposes.

“This chapter shall be interpreted and construed as to effectuate the following purposes:

“(2) Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for ojfenses committed and the development of competencies to enable children to become responsible and productive members of the community.” (emphasis added)

Section 6352(a) of the Juvenile Act, 42 Pa.C.S. §6352 (a) goes on to provide, as it relates to authorized disposition of a child found to be delinquent, the authority to make the following types of orders:

“Orders of disposition determined to be consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation and welfare, which disposition shall, as appropriate to the individual circumstances of the child’s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competency to enable the child to become a responsible member of the community.” (emphasis added)

As stated in In the Interest of J.F., supra, the changes in the stated purpose of the Juvenile Act, as reflected in the 1995 amendments, demonstrate a concern that juveniles be held accountable for their actions and that the community be protected from violent juvenile offenders. Accordingly, commitment to a youth development center of a juvenile having been found delinquent in the commission of a serious and violent criminal offense is, in the view of the court, a commitment with confinement to a state correctional facility. Rehabilitation and punishment in the form of accountability for one’s actions are considerations within the scope of the commitment and confinement and address the responsibility for the commission of acts, which are prescribed by a criminal statute. Therefore, there is no factual basis upon which to distinguish a youth development center from any other type of correctional facility to which an adult defendant may be sentenced.

If the legislature had intended to distinguish juvenile institutions from those designed for the commitment of adult offenders, then such differentiation could have been set out in the statute.

The defendant has argued that since the legislature specifically addressed juvenile proceedings in section 2702(a2) and (c) of the Crimes Code (18 Pa.C.S. §2702 (a2) and (c)) relating to the charge of aggravated assault, committed upon specified categories of persons therein defined, that the section here under consideration, 2705.1 of the Crimes Code, must be construed to exclude juvenile facilities. Listed in subsection 2702(c)(9) of the Crimes Code as persons falling within the scope of the statute as victims are the following individuals:

“(9) Officer or employee of a correctional institution, county jail or prison, juvenile detention center or any other facility to which the person has been ordered by the court pursuant to a petition alleging delinquency under 42 Pa.C.S. Ch. 63 (relating to juvenile matters).”

The court does not find defendant’s argument to be persuasive. The scope of protected employees of facilities in section 2702(c)(9) of the Crimes Code is intended to be broader than those enumerated in section 2703.1 of the Crimes Code, because section 2702(c)(9) is intended to include employees of any facility to which a juvenile may be ordered, regardless of whether or not it is a state facility, and regardless of whether it may be considered a corrections facility.

For the foregoing reasons, the court will deny the defendant’s post-verdict motion for judgment of acquittal.

ORDER

And now, June 24, 2002, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s post-verdict motion for judgment of acquittal is denied.

Sentencing of the defendant is scheduled for August 29, 2002, at 9:30 o’clock a.m. in courtroom no. 2.

The adult probation office shall prepare a pre-sentence investigative report.

The clerk of courts shall exit a copy of this order to counsel of record and to the adult probation office of Lawrence County.


author: HERMAN, J,

text:
    Klovensky v. Moore

      July 18, 2002
    C.P. of Franklin County,
    no. 2002-394.

      Denis M. DiLoreto, for plaintiffs.

      John N. Keller, for defendant.
   HERMAN, J,

BACKGROUND

Plaintiff filed a complaint seeking damages as a result of a car accident which occurred on May 15,2000, when defendant’s car rear-ended plaintiff’s car. Plaintiff alleges he suffered physical injuries and economic losses. Defendant admitted liability but defends against damages. In her May 13, 2002 deposition, defendant was asked whether she sought medical treatment after the accident or experienced any injuries. Aside from a few temporary aches and pains, defendant denied sustaining any injuries or seeking medical attention. (N.T. pp. 16-18.) Plaintiff then noticed defendant with an intention to serve Cumberland Valley Family Physicians with a subpoena to produce documents relating to any medical treatment rendered to defendant after the accident. Defendant objects to the subpoena on grounds of relevance and the physician-patient privilege.

DISCUSSION

This discovery is sought pursuant to Pa.R.C.P. 4003.1 which permits a party to “(a) . . . obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... (b) It will not be ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Plaintiff argues he is entitled to this information in the event defendant presents evidence and argument at trial to show the collision was not violent enough to cause the injuries plaintiff alleges he suffered. Plaintiff points to defendant’s answer in which she admits that her car collided with the rear of plaintiff’s car but denies “that the impact amounted to a ‘crash.’ ” (Answer to the complaint, ¶6.) Despite defendant’s denial at her sworn deposition that she suffered injuries or sought medical attention after the accident, plaintiff believes he is entitled to examine defendant’s records firsthand to verify that she was truthful and accurate on this point. Plaintiff’s reasoning is that if defendant herself sought medical treatment, this will allow him to counter defendant’s assertion that the accident was not violent enough to cause plaintiff’s injuries (soft tissue injuries, notoriously difficult to prove by objective means) but will support plaintiff’s contention that his injuries are genuine and not the result of falsehood, exaggeration or malingering. Defendant contends that whether defendant herself sought treatment or was injured does nothing to advance plaintiff’s claim that he was injured and therefore the information is not relevant.

It is well-established that “relevance” is interpreted in a broader and more flexible manner in the discovery context as opposed to determining the admissibility of evidence for trial. Any conceivable basis on which a discovery request may be relevant supports access to that information. Schwab v. Milks, 8 D.&C.4th 557 (Lacka. Cty. 1990); Goodrich-Amram 2d, 4003.1(a).

Defense counsel assured the court and plaintiff’s counsel at oral argument that no response along the lines plaintiff anticipates will be necessary because defendant is not planning to present expert biomechanical or accident reconstruction testimony to prove the accident was not violent in terms of its physical impact on the persons in the two cars. Despite these assurances, it is a reasonable strategy for plaintiff to prepare such a response in light of paragraph 6 of defendant’s answer, and also because a plaintiff alleging soft tissue injuries is often limited to proving damages through subjective recollection of the pivotal event and a subjective experience of pain and suffering. Whether defendant herself suffered any injuries or sought medical treatment as a result of the accident clearly is relevant to plaintiff’s ability to counter the defendant’s downplaying of the seriousness of the accident under the flexible approach to discovery set out in Rule 4003.1. Whether this flexible approach trumps the firmly-established physician-patient privilege is the more pointed question, however.

The right to privacy is recognized under both the United States and Pennsylvania Constitutions. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980). This right includes the right to be let alone. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980). It specifically includes a patient’s right to keep his medical records confidential. In re B, 482 Pa. 471, 394 A.2d 419 (1978); Commonwealth v. Larsen, 452 Pa. Super. 508, 682 A.2d 783 (1996). Only a compelling state interest can override a patient’s privacy rights. Fabio v. Civil Service Commission of the City of Philadelphia, 489 Pa. 309, 414 A.2d 82 (1980).

The privilege is also statutorily protected under 42 Pa.C.S. §5929 which prohibits a physician from revealing in a civil proceeding any information which might tend to blacken the patient’s character without the patient’s consent unless the patient brings a personal injury action. The purpose is to create a confidential atmosphere in which the patient will feel free to disclose any information which may help the physician render appropriate treatment. To fall within the statutory privilege, the information must come to the physician by disclosure or communication from the patient, as opposed to the physician’s own direct observation and examination, and also must tend to blacken the patient’s character or reputation. Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 609 A.2d 796 (1992); In re June 1979, supra.

In Stenger, plaintiffs, whose family members contracted AIDS through tainted blood, sued the hospital and blood bank for negligence. Plaintiffs sought the identities of anonymous blood donors in order to question them about the specifics of the facilities’ blood screening procedures. The defendants conceded that this information was relevant but opposed discovery based on the physician-patient privilege. Concerned about exposing a donor or the recipients to ridicule or embarrassment, the court fashioned a solution balancing those concerns with the need to maintain a safe blood supply for the public. The court allowed plaintiffs to discover the dates of shipments of the donor’s blood and the results of blood tests performed on blood recipients while refusing to order disclosure of the identities of persons who received the donor’s blood. The information concerning shipment dates and results would bear no names and addresses, thereby protecting the anonymity of the donor and the recipients.

The instant plaintiff cites Stenger to support, at the very least, limited discovery of defendant’s medical records relating to the time shortly after the accident and to any of defendant’s medical conditions conceivably resulting from the accident. However, the information which the Stenger court ruled could be disclosed pertained to a matter of clear public import — the safety of the blood supply — whereas in the case at bar there is no compelling state interest at stake to justify revealing privileged information.

Plaintiff also cites Rearick v. Griffith, 27 D.&C.2d 451 (1962), a personal injury suit arising from a car accident in which plaintiff alleged defendant was in no condition to drive a car because of intoxication and sought defendant’s treatment records for the period immediately after the accident. Defendant conceded the relevance of the records but raised the physician-patient privilege. The court ordered discovery under precedent which held that only communications where the patient discloses personal medical facts to the physician are protected, whereas information gleaned by the physician through his own direct examination and observation of the patient is not protected. This approach to the privilege was confirmed later in In re June 1979 and Stenger, supra.

Rearick does not help plaintiff in overcoming the privilege. In that case it was beyond question that there was at least some information to discover — the results of the physician’s examination and observation of the defendant during the time immediately after the accident. In the case at bar, we have before us no reason to believe defendant suffered any injuries or sought treatment unless we were to simply dismiss the truthfulness or accuracy of her sworn deposition. If plaintiff had come forward with particular grounds to support the notion that defendant’s deposition was intentionally deceitful or even just inaccurate, we might have some basis for ruling otherwise. In the absence of such particulars, we will not permit what amounts to mere speculation to defeat this important privilege.

We also take note of Topper v. Shatzler, 19 Franklin Cty. L.J. 63 (2001), in which this court held that a plaintiff in an action for physical injuries did not put his mental health at issue by claiming damage to the nerves and nervous system, pain and suffering and loss of life’s pleasures. These were simply the traditional tort claims for damages which were a natural consequence of, and attendant to, what was essentially a physical injury. Insofar as plaintiff did not put his mental health at issue by claiming such damages, we did not even reach the question of whether he had waived the psychiatrist/ psychologist-patient privilege.

Analogously, we here find that defendant has not placed her medical condition at issue simply by refusing to admit that the collision amounted to a “crash.” We are troubled by the prospect of every personal injury action becoming an occasion to override a firmly-established privacy interest which promotes public health by shielding confidential medical communications from unnecessary disclosure. Absent other circumstances, surely not every personal injury defendant places his own medical condition at issue simply by denying a plaintiff has suffered as claimed.

Although the information which plaintiff seeks is relevant under discovery standards, we find defendant has not placed her medical condition at issue, and even if she has, plaintiff has not shown there is a compelling state interest at play under the circumstances to justify overriding the physician-patient privilege.

ORDER

Now July 18, 2002, the court denies the plaintiff’s motion to dismiss defendant’s objections to plaintiff’s subpoena. The plaintiff may file a motion in limine to preclude defendant from presenting evidence or argument at trial to prove that the accident was not severe enough to cause the injuries plaintiff claims to have suffered.


author: KIESER, J.,

text:
    McElwee v. Leber

      C.P. of Lycoming County,
    no. 00-01, 795.

      Clifford A. Rieders and C. Scott Waters, for plaintiffs.

      David R. Bahl, Kenneth B. Young and Robert A. Seiferth, for defendants Sinsabaugh, Kershner, Muncy Valley Hospital, Susquehanna Health System and Susquehanna Physician Services.
    C. Edward S. Mitchell, for defendant Shearer.

      AlanR. Krier, for defendants Leber, Edelman, Emcare, West Branch Emergency Physicians and New Jersey/ Pennsylvania EM-1 Medical Services.

      June 28, 2002
   KIESER, J.,

Before the court are preliminary objections of all defendants to plaintiffs’ first and second amended complaints asserting wrongful death and survival actions on behalf of their daughter’s estate and claims for damages on their own behalf attributed to negligent infliction of emotional distress. The original complaint was filed on November 15, 2000. After preliminary objections to that complaint were sustained, plaintiffs filed their first amended complaint on July 18, 2001 to which all defendants filed preliminary objections.

However, at argument, on October 24, 2001, all parties stipulated that plaintiffs could file a second amended complaint, that would be analyzed in conjunction with the first regarding the objections. The second amended complaint was filed on November 9, 2001.

The preliminary objections of the defendants are broken down as follows:

(1) Defendants Jeanine Sinsabaugh, Cindy Koons, Judy Kershner, Muncy Valley Hospital, Susquehanna Health System, and Susquehanna Physician Services (defendant hospitals), filed their preliminary objection, on August 7, 2001, a motion to strike plaintiffs’ claims for negligent infliction of emotional distress set forth in Counts VIII and IX of the first amended complaint and which now will apply to the same counts of the second amended complaint.

(2) Defendants, Paul Leber M.D., Adam Edelman M.D., Emcare Inc. and West Branch Emergency Physicians filed preliminary objections on August 8, 2001, a motion to strike the claims of Kevin McElwee for negligent infliction of emotional distress, Count VIII of plaintiffs’ first amended complaint. This objection will now pertain to Count VIII of the second amended complaint and include the added defendant New Jersey/Pennsylvania EM-1 Medical Services P.C., the asserted employer of Dr. Leber and Edelman, as an objecting party. This motion did not include any objection to Count IX in which plaintiff Jo Ann McElwee asserts an emotional distress claim against defendant Edelman and other defendants.

(3) Defendant Shearer filed preliminary objections on August 9, 2001, demurring and moving to strike Kevin McElwees’ claim for negligent infliction of emotional distress set forth in Count VIII of the first amended complaint, which applies now to the same count of the second amended complaint. Defendant Shearer’s objections also raised a motion to strike the negligence allegations in paragraph 44.1 of the amended complaint for lack of specificity. This objection now applies to paragraph 45.1 of the second amended complaint.

For the following reasons, (all) defendants’ preliminary objections seeking to strike plaintiffs’ negligent infliction of emotional distress claim, Count VIII and IX, will be denied. Defendant Shearer’s additional objection asking this court to strike paragraph 44.1 of plaintiffs’ amended complaint will also be denied, as indicated at the time of argument.

FACTS

Plaintiffs originally filed a complaint on November 15,2000 alleging defendants’ failure to diagnose and treat a strep infection that resulted in the death of Jessica McElwee, the 10-year-old daughter of plaintiffs, Kevin and Jo Ann McElwee, on December 16, 1999. Initial preliminary objections similar to those now under consideration were filed challenging plaintiffs’ claims of negligent infliction of emotional distress and as to Dr. Shearer, two of the general negligence allegations made against him. Those prehminary objections were sustained through an opinion and order of June 29, 2001.

Plaintiffs filed their first amended complaint on July 18, 2001, repleading their claims for emotional distress and one of the negligence allegations against Dr. Shearer. While these preliminary objections were under consideration, plaintiffs, by virtue of a stipulation evidenced by a court order of October 24, 2001, filed their second amended complaint, which by the same counts assert the same negligent infliction of emotional distress claims in the same language as the first amended complaint and contains the same allegations of negligence against Dr. Shearer. (See also, text of footnote 1.)

The second amended complaint in paragraphs 2 through 31 set forth plaintiffs’ general factual allegations of the events, which led up to the death of Jessica McElwee. Count VIII and Count IX set forth the negligent infliction of emotional distress claims. Count VIII, consisting of paragraphs 65 through 81, identifies the claim as being that of plaintiff Kevin McElwee vs. defendants Leber, Shearer, Kershner and Edelman. This count incorporates all prior paragraphs. Count IX of the complaint in paragraphs 82 through 96 contains additional factual allegations in connection with mother, Jo Ann McElwee’s negligent infliction of emotional distress claims against the three nurses, defendants Sinsabaugh, Koons and Kershner, as well as against Dr. Edelman. Count IX incorporates the preceding paragraphs of the complaint by reference. The following is a chronological sequence of events as pleaded and relevant to the preliminary objections. (Paragraph references are to the second amended complaint.)

December 12, 1999 (¶¶16-19, 32-34, 51, 66)

At about 5 p.m. on the evening of Sunday, December 12, 1999, Jessica McElwee, age 10, was taken by her father, Kevin McElwee, to the Muncy Valley Hospital emergency room due to pain in the left ankle area. Her symptoms also included, an upset stomach, and a fever of 102.7° F and tenderness of lateral malleous, as well as a moderately red throat. Defendant Nurse Koons was involved in her care. After an x-ray disclosed no evidence of a fracture or dislocation, defendant Dr. Leber diagnosed ankle sprain and viral syndrome. After approximately 2 hours, Jessica was sent home with instructions to take Tylenol or Motrin and to wear an air splint on her ankle. Kevin McElwee observed the medical care provided to Jessica on Sunday, December 12, 1999, on the initial visit to the emergency room, specifically Dr. Leber.

December 13th (¶¶20, 48-48.12, 83)

Jessica did not improve. Jo Ann McEIwee telephoned the emergency room and asked Defendant Jeanine Sinsabaugh, a nurse, to recheck the x-ray, explaining, inter alia, that she could not understand why Jessica continued to experience so much pain. Nurse Sinsabaugh indicated that Jessica’s ankle was not broken and recommended Ibuprofen but did not instruct Jo Ann McEIwee to bring Jessica to the emergency room and did not instruct that Jessica be seen by a physician.

December 14th (¶¶21-24, 45-45.12, 67)

Mrs. McEIwee called Dr. Shearer’s office and advised a person by telephone of Jessica’s emergency room visit and that Jessica was not feeling better and had a fever and upset stomach; an appointment was made for Jessica to see defendant Dr. Shearer at 3:30 p.m. Kevin McEIwee took Jessica to Dr. Shearer’s office. Jessica was seen by defendant Dr. Shearer, who was informed of the events surrounding the December 12 emergency room visit. He took no vital signs. He removed the air splint causing Jessica intense ankle pain. The abnormal appearance of the ankle, purple with spider-like streaks, was pointed out to Dr. Shearer and a comment made to him that her ankle appeared similar to the way Kevin McElwee’s leg looked when he had blood poisoning. Dr. Shearer remarked that no one dies from ankle pain, told the father the diagnosis of ankle sprain and flu and then prescribed Jessica Imodium AD. Father observed the care Dr. Shearer rendered to her at that time.

December 15th (¶¶25-28, 36-42.5, 45.13, 45.14, 53, 53.6-53.13, 56-56.7, 69, 70, 76, 84, 85)

Mrs. McElwee again contacted the MYH emergency room and spoke with defendant Cindy Koons, who had been present at the initial visit. Mrs. McElwee told Nurse Koons that Jessica was not feeling any better and that Jessica’s ankle was still swollen and requested stronger pain medication. Nurse Koons responded by telling Mrs. McElwee that sometimes a sprain can be a lot more painful for a child and that Jessica could be laid up for weeks and told Mrs. McElwee to call her family physician for stronger pain medication. She offered no other assistance. Mrs. McElwee heard, was aware, or later became aware at or near the time of Jessica’s death, that defendant Koons failed to provide reasonable care, caused injury, and/or increased the risk of harm as follows: “telephone management of a critically ill child... failing to have a doctor speak with Jo Ann McElwee; by failing to instruct Jo Ann McElwee to bring Jessica to the emergency room... telling Jo Ann McElwee that a sprain was the cause of Jessica’s symptoms; by failing to appreciate that Jo Ann McElwee’s request for stronger pain medication was a clear sign that Jessica required immediate medical care; and by being dismissive of information and symptomatology.” (¶84.)

Mr. McElwee then contacted Dr. Shearer and explained to him Jessica was still experiencing intense pain. Dr. Shearer prescribed Darvocet over the telephone and gave no instruction for any further evaluation or emergency room treatment. Jessica was given Darvocet at 5:00 p.m. and at 9:00 p.m. as instructed by Dr. Shearer.

Later that night, Jessica began vomiting. Mrs. McElwee telephoned the MVH emergency room and explained Jessica’s symptoms to defendants Nurse Kershner and Dr. Edelman between 11:30 and 11:45 p.m. She was advised Jessica was probably having a reaction to the Darvocet and would be fine. The emergency room personnel were dismissive of information furnished by Mrs. McElwee. During this call, after Kevin McElwee told Jo Ann McElwee that he was not able to find a pulse, Jo Ann McElwee told the emergency room personnel that Jessica would be transported by her parents to the emergency room. Jessica was then taken by automobile, by her parents, to the Muncy Valley Hospital emergency room. (¶¶70, 85.)

December 16th (¶¶29-31, 71-76, 86-92)

At home, while being transported, and at the time Kevin and Jo Ann McElwee arrived at the emergency room, Kevin and Jo Ann McElwee observed and/or were aware that Jessica’s skin was mottled, her forearms were pale and cold, she was disoriented and mumbling, her extremities were cool, and she had no pulse. Mr. and Mrs. McElwee were aware that Jessica’s life was in peril. (1171, 86.)

Upon arrival Jessica was taken by her father into the emergency room by wheelchair and examined. At approximately 12:14 a.m., Jessica was examined at the Muncy Valley Hospital. In the emergency room, Jessica was seen by medical care providers including Dr. Edelman, nurses and paramedics. Kevin McElwee was present to observe attempted medical care until the medical care providers no longer permitted Mr. McElwee to be present. (¶¶73,88.) Jessica’s examination in the emergency room revealed her skin was mottled with jaundice and cold to the touch. She was disoriented, mumbling, her extremities were cold, and she had no pulse. She was examined by Dr. Edelman who noted she was flaccid and obtunded. She vomited at 12:27 a.m. A code was initiated. She had no spontaneous respiration. She turned purple. She did not respond to treatment. After Kevin McElwee was no longer permitted to be in the immediate area where medical care was being provided to Jessica, he and Jo Ann McElwee remained at the Muncy Valley Hospital. Medical care providers, at times, did provide some limited information to Mr. and Mrs. McElwee while they waited. (¶¶73,88.) Jessica McElwee died at 1:20 a.m. on December 16, 1999, at the Muncy Valley Hospital emergency room. Shortly after Jessica’s death, Dr. Edelman, accompanied by Nurse Kershner, told Mr. and Mrs. McElwee that Jessica had died. The cause of death determined by autopsy was toxic shock due to streptococcal infection.

As to negligent infliction of emotional distress on Kevin McElwee by Dr. Shearer it is alleged:

“Kevin McElwee observed, heard, was aware, or in the alternative, became aware at or near the time of Jessica’s death, that defendant Shearer failed to provide reasonable care, caused injury, and/or increased the risk of harm as follows: By prescribing a narcotic pain medication without again examining Jessica or without doing testing to determine the source of her pain and/or illness; failing to appreciate that Jessica’s condition had continued to deteriorate for approximately three days after she was first seen at the emergency room on December 12,1999; failing to instruct that there be another office visit or that Jessica be seen in the emergency room or elsewhere by a physician; being dismissive of information brought to his attention by Kevin McElwee; being dismissive of obvious symptomatology such as the abnormal appearance of the anide, intense pain, continuing fever, and other symptoms which continued for a prolonged period of time; and continuing to misdiagnose Jessica’s condition.” (¶69.)

The parents, in support of their emotional distress claims also include in their allegations that they had questioned or expressed concern regarding the appropriateness of the medical care rendered to Jessica by defendants Leber, Shearer, Kershner and Edelman. (¶¶77,92.) The parents assert as to all defendants against whom they each were aware, or later became aware at or near the time of Jessica’s death that defendants had failed to provide reasonable care, caused injury or increased the risk of harm to Jessica. (¶¶66,68,69,75,76,83,90,91.) The parents claim that as a result of their contemporaneously perceiving by sight and sound the negligent medical care and treatment rendered to Jessica he suffered and continues to suffer serious and permanent emotional distress and anguish which was foreseeable by defendants suffering physical manifestations including depression, loss of sleep, nightmares, personality changes, headaches, upset stomach/nausea and flashbacks. (¶¶78-80, 93-95.) The parents assert that as a result of defendants’ negligence they experienced or observed Jessica’s deterioration and eventual death, a discrete or identifiable traumatic event, which directly and proximately resulted in their suffering and continuing to suffer serious and permanent emotional distress and mental anguish. (¶¶81, 96.)

The negligence claims against Dr. Shearer are set forth in Count 3 of the complaint, specifically in paragraph 45, which consists of subparagraphs 45.1 through 45.18. The assertion, which is the subject of Dr. Shearer’s motion to strike because of lack of specificity, is found in paragraph 45.1 which states as follows: “45.1 Failing adequately to examine and evaluate Jessica, as set forth herein, beginning December 14, 1999.”

DISCUSSION

This opinion will first address, collectively, all defendants’ preliminary objections, which request the court to dismiss Count VIII and Count IX of plaintiffs’ first amended complaint. These issues relate to plaintiffs’ claims against defendants for negligent infliction of emotional distress. Second, the opinion will address defendant Shearer’s preliminary objections to dismiss paragraphs 44.1 and 44.6 of plaintiffs’ amended complaint for lack of specificity.

Negligent Infliction of Emotional Distress

Count Vm sets forth the claim on behalf of plaintiff Kevin McElwee, plaintiff father, against defendants Leber, Shearer, Kershner and Edelman. Count IX sets forth the claim on behalf of plaintiff Jo Ann McElwee, plaintiff mother, against defendants Sinsabaugh, Koons, Kershner and Edelman.

The essence of defendants’ objections to the negligent infliction and emotional distress claims is that there are no facts pleaded asserting that either of the plaintffs/parents witnessed an identifiable traumatic event, that they recognize that the conduct of the medical care providers was negligent at the time it was occurring, that becoming aware after the medical care was rendered does not support a negligent infliction of emotional distress claim and also concerning the allegations that plaintiffs/parents became aware later at or near the time of the death of their daughter is an insufficient pleading and further plaintiffs cannot determine if plaintiffs were talking about becoming aware of the negligent nature of the care before the death, at the death, or after the death of Jessica.

The Pennsylvania Supreme Court in Sinn v. Burd, 486 Pa. 146, 170-71, 404 A.2d 672, 685 (1979), set forth the following factors that are necessary to state a cause of action for negligent infliction of emotional distress:

“(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

“(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.

“(3) Whether plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.” See also, Love v. Cramer, 414 Pa. Super. 231, 234, 606 A.2d 1175, 1177 (1992).

“Recovery is further limited by the requirement that the person seeking damages must suffer a physical injury as a result of actually witnessing the harm to the close relative. Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986).” Id. This court is satisfied that the second amended complaint’s allegations read in their totality, in a common-sense manner, assert facts upon which a jury could award damages for the emotional distress suffered by the parents.

Factor number one deals with whether plaintiff father and mother were located near the daughter when she was injured. The complaint asserts at various times that mother and father witnessed the care of the various defendants that rendered to their daughter, communicated orally with the defendants about her condition and care, and they were in her presence when the care was being provided. More significantly in this regard, it appears from the allegation Jessica was in the presence of one or both of them from the onset of her complaint on December 12 through the continuing deterioration of her condition, to the point that she became unconscious, disoriented, mumbling, cold and without a pulse on December 15. In the early morning hours of December 16, Jessica’s parents drove her to the emergency room where she was treated by the staff, specifically Dr. Edelman and Nurse Kershner. Jessica died a little over an hour after arrival. The complaint does not assert any act of medical negligence occurring in connection with Jessica’s care in the emergency room in the hour preceding her death. The complaint asserts, however, that at least her father was present with Jessica at the time the hospital alerted a code and attempted final measures of resuscitation, which proved futile. Mother’s immediate whereabouts, except for the fact she had accompanied the daughter to the emergency room this final time and had observed her there is not made clear by the allegations of the complaint.

As in most emotional distress cases, particularly those involving claims of medical malpractice, the real issue in this case is whether the pleadings are sufficient to satisfy the second test of Sinn v. Burd, that is, do the parents sufficiently allege shock resulting from direct emotional impact upon them from the sensory and contemporaneous observance of harmful (accident), conduct of defendants as contrasted with learning of the injury-producing event, the inappropriate medical treatment from others, after its occurrence. The complaint clearly does allege plaintiffs knew of each specific act of medical care being rendered to their daughter. The defendants’ objections emphasize that the complaint does not allege that at the moment each act of care was provided the parents recognized such care as being negligently provided.

In applying the Sinn tests there should be a focus on whether the plaintiffs personally observed the events, as opposed to learning about them from someone else. Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In determining what it is a plaintiff must observe it has been recognized that it is a traumatic infliction of injury by the defendant upon a close relative, without a buffer of time or space to soften the blow. Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 105, 597 A.2d 671, 682 (1991). Bloom found there was no injury inflicted on the plaintiff’s wife by the defendants because the wife harmed herself through an attempted suicide, but the Superior Court noted there could be a circumstance where a medical care omission, witnessed by a plaintiff, could be construed as a traumatic injury to the relative. Id. at 105, 597 A.2d at 683.

Love v. Cramer, supra at 232, 606 A.2d at 1175, appeal denied, 533 Pa. 634, 621 A.2d 580 (1992), in ruling upon almost the exact factual scenario envisioned by Bloom, held that a daughter who had witnessed her mother’s fatal heart attack had experienced a sensory and contemporaneous event. Love v. Cramer, supra at 235, 606 A.2d at 1177. Love further held:

“The fact that the negligence ... did not take place at the time of the actual injury should not prevent... (plaintiff) from attempting to prove her claim. It is enough if the negligence constituted the proximate cause of the injury and of the resulting emotional trauma.” Id. (footnote omitted)

Commenting in a footnote that although it seems odd that law requires a plaintiff to actually observe the negligent conduct, Love found the observance of the negligent failure to treat a loved one, being present when tests were not done and witnessing the subsequent heart attack, six weeks later, made it possible for plaintiff to pursue her claim for negligent infliction of emotional distress. “Her recovery, if proven, would be based upon her first hand observation of her mother’s heart attack, an event caused by Dr. Cramer’s negligence, of which she also witnessed.” Id. at 237, 606 A.2d at 1178.

Here the complaint clearly alleges that the treatment of defendants was negligent and various aspects of the care rendered and that as a result of this negligence plaintiffs ’ deceased daughter suffered injuries and eventually death. The complaint alleges that plaintiffs as the girl’s parents observed contemporaneously the medical care that was being provided. The complaint when fairly read also asserts that plaintiffs were concerned and upset about what they considered to be inappropriate care. As would relate to Dr. Shearer, the complaint clearly asserts that following the initial treatment of Jessica at the emergency room where she was diagnosed with flu and a sprained ankle that the parents questioned this diagnosis and telephoned the emergency room asking that the x-ray be rechecked. Their concern continued as Jessica failed to respond to the initial instructions to take Tylenol or Motrin and wear an air splint and they advised Dr. Shearer the circumstances leading up to their taking Jessica to his office. They allege a concern was that it appeared her ankle presented symptoms relating to blood poisoning, which was dismissed with Dr. Shearer remarking that one does not die from ankle pain. The parents were concerned, upset and felt the treatment was wrong as evidenced by the actions of the parents on December 13 when they re-contacted the emergency room and Dr. Shearer. The complaint clearly alleges that the parents felt their concerns and complaints were being dismissed by various defendants. Even shortly before Jessica lapsed into the state where she had no ascertainable pulse at home it appears that the parents viewed the treatment and advice they were getting from the emergency room personnel and their late-night telephone call was not sufficiently rendering care to their daughter. In paragraphs 77 and 92, plaintiffs allege they questioned the inappropriateness of Jessica’s care and expressed concerns.

This court also believes the complaint as a whole presents facts, which if true, not only coincide closely with Love v. Cramer, supra, but state a scenario where common sense dictates a parent may logically suffer emotional distress from their 10-year-old daughter being injured by the medical care given, or in this case, not given to her. As Jessica becomes cold, mottled and without a pulse at her home in her parents’ presence, certainly they could have suffered a traumatic shock. Having observed Jessica’s condition develop over the preceding few days it is reasonable and logical that Jessica’s parents would become aware that the care defendants had been given was incomplete or wrong and upon this realization become greatly emotionally upset. Their adverse emotional impact would certainly be enhanced when, as the parents pled, they recognized Jessica’s life was in peril and it was in peril because of the lack of proper treatment. Such awareness of the care, the injury and recognition of the wrong done to their daughter is sufficiently contemporaneous and sensory to meet the standards of Pennsylvania law for stating a claim for negligent infliction of emotional distress.

Defendant Kershner also argues that the facts pleaded do not state Father, Kevin McElwee, ever talked with her or observed her caring for Jessica. The complaint does generally assert, however, that he was aware of the care being provided by defendant Kershner when the nurse was talking on the telephone with his wife. Granted, the pleadings do not establish that he knew the identity of the person of Nurse Kershner at the time, but it is clear he contends in the complaint facts sufficient to infer he knew care was being provided by someone during his wife’s call to the emergency room. See Persall v. Emhart, 599 F. Supp. 207 (E.D. Pa. 1984) (allowing a mother’s claim for emotional distress against the manufacturer of a defective alarm system, although obviously not knowing the identity of person who caused the defect).

Whether or not a particular medical care provider acts negligently or not is always a difficult question. Indeed, in many cases, even experts disagree as to whether or not it is negligent. To put a burden on plaintiffs in a case such as this to be able to say that they were fully aware at the time the medical care was provided that it was negligent is unrealistic and also not required. What is required is that plaintiffs plead an awareness that what was happening to their daughter was wrong and that they recognized that there was something wrong or lacking at the time that the care was provided. The parents clearly assert that: they were concerned about the medical care which was being rendered and/or the lack of care rendered; defendants were being dismissive of Jessica’s symptoms and the complaints being made by and on behalf of their daughter; they observed these acts of medical negligence and the injury to their daughter. Both Bloom and Love clearly recognize that omission of care might be construed as traumatic infliction of injury. That is essentially what plaintiffs in this case allege. Here plaintiffs allege similar to that situation envisioned by Bloom and found in Love, that their deceased daughter languished while under care of defendants. Thus, languishing was not just for a short period of time in an emergency room, as set forth in the Bloom scenario, but over a period of three days after initial negligent care was given to Jessica on December 12. During each day Jessica continued to exhibit symptoms of her illness and did not respond to the prescribed treatment. She did not improve due to the inappropriate omissions of care by defendants. Thus, the negligence and the resulting injury were separated by at most four and one-half days and at the least hours, contrasted with the six weeks of separation, which existed in Love. See id., and also Bloom at 105, 597 A.2d at 683.

As in Love, plaintiffs assert a negligent failure to treat a loved one. They plead specific times that they observed the omissions of medical care, which they may be able to prove was in fact negligent care and was the proximate cause of their daughter’s death. The observance of this lack of medical care together with their being present when their daughter lost her pulse and became cold and mottled is sufficient to sustain their claim of negligent infliction of emotional distress. See Love v. Cramer, supra at 237, 606 A.2d at 1178. As recognized in Love, whether or not plaintiff can prove the causal connection between their emotional distress injuries and alleged negligence is something that can be determined at trial but they should be given the opportunity to do so.

Defendants argue, however, that plaintiffs’ complaint must be dismissed in view of the controlling Lycoming County decision in Trimble v. Beltz, CV-98-01720 (Lyc. Cty. C.P. 11/12/99). Trimble, according to defendants, requires a plaintiff to recognize a defendant’s act or omission as being negligent at the time the act or omission occurs to sustain a negligent infliction of emotional distress claim. See e.g., defendants Sinsabaugh, et al. brief, filed 10/3/01, pp. 4, 5. In support of this objection defendants point to the frequent allegations of plaintiffs which state they observed the medical care provided by a defendant and that they observed, heard, were aware, or became aware at or near the time of Jessica’s death that defendants failed to render reasonable care or increase the risk of harm of the injury to Jessica. Trimble does state that observing negligence can only be traumatic if the plaintiff recognizes the negligence at the time. However, in further explaining the requirement Trimble indicates the plaintiff cannot simply witness the negligence but must suspect something is wrong in order for the observation to be traumatic.

More importantly, however, this court does find the criticized plaintiffs’ pleading as to observing the care and being aware or later becoming aware at or near Jessica’s death that the care was negligent satisfies the Trimble criteria when read in conjunction with the other fact allegations. Unlike the prolonged treatment time in Trimble, the total time of care being rendered to Jessica was within four and one-half days of her death. Not only do the questioned paragraphs assert an awareness of negligence when the care was provided but an awareness that is contemporaneous enough with her deteriorating condition due to an ongoing failure to treat to satisfy the Trimble standard. This is substantiated by the companion pleadings, which specifically state that plaintiffs questioned and were concerned about the appropriateness of Jessica’s care. See inter alia, ¶¶62 and 72. Specific factual allegations establish they did question whether her diagnosis was correct and easily could support a finding that the parents suspected something was wrong in the medical treatment being given to Jessica.

From the foregoing it is also obvious that the third factor that plaintiffs were closely related to the person injured is established in the pleadings. The pleadings also assert that plaintiffs themselves suffered identifiable and specific injuries as a result of this emotional distress.

Accordingly, all the factors established by our appellate courts having been met, the preliminary objections to Count VIII and Count IX of the first and second amended complaints, by the various defendants will be denied.

Defendant Shearer’s Motion To Strike

Defendant Shearer’s next preliminary objection asks this court to strike paragraph 44.1 of plaintiffs’ first amended complaint for lack of specificity. This court issued an opinion and order on June 29, 2001, striking these paragraphs as pleaded in the original complaint because they were broad, open-ended and inappropriately alleged general terms of medical negligence. Plaintiffs’ first and second amended complaints sufficiently correct the original allegations. Plaintiffs’ original complaint read, “failing adequately to examine, evaluate, and treat Jessica beginning December 14, 1999” (filed November 15, 2000, p. 14, paragraph 44.1). Such an allegation, as initially argued by defendant Shearer’s counsel, would permit plaintiffs to subsequently introduce testimony far beyond the specific facts of their complaint and do not adequately put the defendant on notice of what factual matters he may need to consider nor what claims he must be prepared to defend in the litigation. Plaintiffs’ amended complaints were changed to read, “Failing adequately to examine and evaluate Jessica, as set forth herein, beginning December 14,1999.” Seej[45.1 of the second amended complaint, (emphasis added) This amendment makes the paragraph more specific, and adequately sets forth the negligence, limiting plaintiffs’ allegations to the facts alleged in the foregoing paragraphs of the first or second amended complaint, which the defendants can admit or deny and in the course of litigation prepare to defend.

CONCLUSION

Plaintiffs’ complaint sets forth facts sufficient to support the legal elements of their causes of action for negligent infliction of emotional distress. The complaint also states the negligent acts, which support the claims made against Dr. Shearer. The complaint gives defendants fair notice of the claims and the grounds upon which they are based. The facts alleged clearly state to the defendants what they must defend and permit them to adequately answer and defend plaintiffs’ contentions. Therefore, the preliminary objections must be denied.

ORDER

It is hereby ordered that all defendants’ preliminary objections to plaintiffs father and mother’s negligent infliction of emotional distress claims, Count VIH and IX, are denied.

Defendant Shearer’s preliminary objection asking this court to strike paragraph 44.1 of plaintiffs’ first amended complaint and 45.1 of the second amended complaint is denied.

      . The stipulation of record as set forth in the order of October 24, 2001, specifically gave plaintiffs the right to amend in order to add a count of vicarious liability against the asserted employers of defendants Dr. Shearer, Dr. Leber and Dr. Edelman. These additional counts are set forth as Counts XV and XVI of the second amended complaint. In doing so, plaintiffs also deleted original paragraph 12 of the first amended complaint and added new pleadings as to the defendants’ employers as paragraph numbers 12 and 14 in the second amended complaint. This resulted in the allegations in the second amended complaint following paragraph 14 to numbered one number higher than in the first amended complaint. Otherwise, the first amended complaint and second amended complaint are the same.

      . As noted at page 381, defendant Edelman did not file a preliminary objection to this allegation.