author: NEALON, J.,

text:
    Gurevitz v. Piczon

      C.P. of Lackawanna County,
    no. 95-CV-1039.

      John R. Lenahan Jr. and Joseph P. Lenahan, for plaintiff.

      Joseph Lack, for defendant Piczon.

      Michael P. Perry, for defendant Community Medical Center.
    September 10, 1999
   NEALON, J.,

Plaintiff, Mark Gurevitz, has filed a motion in limine seeking to introduce evidence of prior malpractice lawsuits and alleged acts of neurosurgical negligence involving defendant, Severino Piczon M.D., which Gurevitz maintains should have alerted defendant, Community Medical Center, to Dr. Piczon’s purported incompetence to perform spinal surgery. CMC has filed a cross-motion in limine to prohibit any reference to such other claims or treatment. For the reasons set forth below, Gurevitz will be permitted to make reference to those prior acts of alleged negligence by Dr. Piczon at CMC which occurred under circumstances that were sufficiently similar to those at issue in this case.

I. FACTUAL BACKGROUND

The instant medical negligence litigation is the last chapter in a trilogy of neurosurgical malpractice claims filed against Dr. Piczon based upon spinal surgeries performed by him at CMC. See Mulligan v. Dr. Piczon and CMC, 95-CV-1039 (Lacka. Co.); Cornfield v. Dr Piczon and CMC, 95-CV-1284 (Lacka. Co.). In the present matter, Gurevitz contends that Dr. Piczon deviated from the standard of care by improperly performing an anterior cervical discectomy and fusion at C5-6 on August 24,1993, when that surgery was not indicated by preoperative diagnostic testing and by thereafter negligently performing lamino-foraminotomies and osteophytec-tomies at C4-5 and C5-6 on November 18, 1993, utilizing a posterior, rather than an anterior, approach. (See plaintiff’s motion in limine, ¶¶1-2.) Gurevitz asserts that Dr. Piczon is liable to him for injuries caused by his malpractice and that the CMC is independently negligent for permitting Dr. Piczon to perform spinal surgery even though he had previously demonstrated that he was not competent to do so. (Id., ¶¶4-10.)

At the time that this action was originally commenced, it was consolidated with the malpractice claims being advanced by Loretta Mulligan who was also named as a plaintiff in this proceeding. Mulligan averred that on April 6,1993, she underwent a lumbar laminectomy with foraminotomies and decompression by Dr. Piczon at the CMC even though the results of her earlier myelogram and CT scan demonstrated that such surgery was not warranted. (See Mulligan complaint, ¶¶10~ 11.) Mulligan contends that her spinal surgery was improperly performed by Dr. Piczon and caused permanent damage to the nerves in her lower spine area. Mulligan further submits that Dr. Piczon negligently managed her condition post-operatively and required her to submit to a second surgical procedure on April 10,1993, to evacuate an alleged epidural fluid collection. (Id., ¶¶12-24.) Not unlike Gurevitz, Mulligan named Dr. Piczon and CMC as defendants and asserts substantially similar theories of liability against them.

The Cornfield matter concerns an anterior cervical discectomy and carpectomy with a fibular strut fusion that was performed by Dr. Piczon at the CMC on February 10, 1994, almost six months after Gurevitz’s first surgery. (See plaintiff’s complaint, ¶¶4-15 in Cornfield v. Dr. Piczon and CMC, no. 95-CV-1284 (Lacka. Co.).) Cornfield has advanced additional claims against Dr. Piczon and CMC with respect to a second surgical stabilization procedure that was performed on March 11,1994. (Id., ¶¶16-22.) In connection with those claims. Cornfield alleges that “the CMC hospital had prior knowledge of Dr. Piczon’s professional problems since two of his prior patients, Loretta Mulligan and Mark Gurevitz, had both been subjected to multiple surgeries in 1993 at CMC hospital with disastrous consequences.” (Id., ¶¶9,42.)

Although Gurevitz has not produced any expert reports from the Cornfield litigation, the exhibits attached to his motion in limine reflect that Mulligan and Gurevitz retained the same expert witnesses in their respective cases. (See reports of Alain C.J. de Lotbiniere M.D., Paul K. Bronston M.D., Albert W. Auld M.D., and Robert A. Fink M.D., attached to plaintiff’s motion as exhibits C, D, E, F, G, H, I, J and K.) Dr. Bronston authored a single report applicable to both the Mulligan and Gurevitz cases in which he cited the CMC’s medical staff bylaws, hospital quality review plan and rules and regulations and opined that inasmuch as Dr. Piczon had failed his neuro-surgical board certification examinations on four separate occasions, it was incumbent upon CMC “to see that Dr. Piczon was a competent and well-qualified physician” who was able “to perform the type of surgical procedures he was doing on both Mr. Gurevitz and Ms. Mulligan.” (Id., exhibit D, p. 4.) Dr. Bronston reasoned that “[t]he lack of proper credentialing of [Dr. Piczon] coupled with the various alleged negligence of his actions toward these two patients would contribute to the poor outcome to these patients.” (Id.)

On July 9, 1999, Dr. Bronston issued a supplemental report in which he remarked:

“The lack of this process to monitor and trend this physician contributed to the poor outcome in Mr. Gure-vitz’s case. This occurs because the lack of oversight causes a failure to identify problems with Dr. Piczon’s care and treatment of patients. In fact, previous expert opinions in the Loretta Mulligan case stated that there were serious and profound deviations from the standard of care by Dr. Piczon in her treatment. Based on those expert opinions, this should have triggered a peer review process in which hospital quality controls, i.e., the quality assurance process, re-evaluated the general competency of Dr. Piczon and more specifically his ability to perform surgical procedures. It is essential to evaluate and monitor poor patient outcomes and to date I have not seen any documented evidence that this ongoing monitoring and trending occurred, thereby breaching the standard of care of hospital quality assurance systems and CMC’s own policies and procedures which are designed to protect patients....
“Limiting, modifying, revoking or suspending clinical privileges, even a summary suspension of privileges, are designed to protect patients against physicians who pose a danger to patient care. . . . Community Medical Center’s own medical staff bylaws state that corrective action proceedings are initiated when there is reliable information that a practitioner ‘has acted in a manner detrimental to patient safety or the delivery of quality patient care.’ If there is not any monitoring of a practitioner’s care, then the reliable information cannot be generated so as to be acted upon. Likewise, if there is not any enforcement of hospital medical staff bylaws regarding corrective action, then unsafe practitioners continue to jeopardize patient care....
“The failure of the hospital to operate a standard of care medical quality management program which consists of ongoing monitoring and trending of Dr. Piczon and hospital staff would be violation of the standard of care. As of the date of this report, CMC’s medical staff bylaw and quality management policies are within the standard of care, but CMC still has not produced any documented evidence that the policies were carried out. It is not enough to have policies if they are not enforced and implemented. It is my expert opinion that a documented, thorough and enforceable quality assurance/ management program was not in place to insure that Dr. Piczon was qualified to perform those procedures on Mr. Gurevitz and that the hospital staff was competent to position the patient correctly for surgery. Therefore, the hospital, in addition to Dr. Piczon himself, would also be directly responsible and contributed within a probable degree of medical certainty to the poor outcome in Mr. Gurevitz’s care.” (Id., exhibit K, pp. 6-8.)

Dr. Fink likewise critiqued the quality assurance controls in effect at the CMC and stated:

“I have also been involved in the review of the case of Loretta Mulligan, which occurred several months before the instant case. In that case (which has not been adjudicated), Dr. Piczon significantly departed from the standard of care and caused injury to Ms. Mulligan at the same institution as in the instant case. Such a radical breach of the standard of care in the Mulligan case should have triggered an urgent peer review action on the part of the hospital’s peer review committees, and prompt action by such committees could have resulted in the suspension or curtailment of Dr. Piczon’s surgical privileges. This could have avoided the subsequent injuries to Mr. Gurevitz.” (Id., exhibit H, p. 1.)

Dr. de Lotbiniere reached a comparable conclusion and opined “it appears to be self-evident that the hospital had the responsibility of exercising some supervision over the practice of Dr. Piczon, given the fact that on no less than four separate occasions, this physician proved that he was incapable of passing the American Board of Neurological Surgery examination, the standard to which surgeons across the country are held.” (Id., exhibit J, p. 3.) (See also, report of Dr. Auld dated July 7, 1999, attached as exhibit I, concluding that the Mulligan surgical failures should have prompted the CMC’s surgical review committee, risk management committee and quality assurance committee to intervene to review, restrict or revoke Dr. Piczon’s privileges.)

Gurevitz seeks to introduce evidence of Dr. Piczon’s spinal surgery involving Mulligan and Cornfield. Gure-vitz also requests judicial approval to make reference to laminectomies and spinal procedures performed by Dr. Piczon at CMC on Steven Moran and Jean D’Ambrosio in 1989, 1991 and May 12, 1993. Gurevitz submits that information concerning those surgeries is relevant to his argument that CMC should not have credentialed or permitted Dr. Piczon to perform Gurevitz’s surgeries on August 24, 1993 and November 18, 1993.

CMC has filed a brief in opposition to Gurevitz’s motion in limine and in support of CMC’s motion to preclude the introduction of such evidence. CMC genetically argues that any reference to other alleged instances of malpractice is irrelevant and would tend to confuse or mislead the jury in contravention of Pa.R.E. 403. While acknowledging the existence of Gurevitz’s direct claim against CMC for allowing Dr. Piczon to perform spinal surgery, CMC submits that Gurevitz should nonetheless be prohibited from utilizing the evidence in question.

II. DISCUSSION

(A) Motion in Limine Standard

“A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.” Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa. Super. 1998). “Generally, a trial judge should admit all relevant evidence unless a specific rule bars its admission.” Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1163 (Pa. Super. 1999); Engle v. West Penn Power Co., 409 Pa. Super. 462, 481, 598 A.2d 290, 299 (1991), alloc. denied, 529 Pa. 669, 605 A.2d 334 (1992). Evidence is considered relevant if it tends to make the facts at issue more or less probable or intelligible. Shiner v. Moriarty, 706 A.2d 1228, 1235 (Pa. Super. 1998); Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997). Gurevitz posits that evidence of Dr. Piczon’s alleged prior malpractice is highly probative in relation to his corporate liability claim against CMC.

(B) Corporate Liability

The evolution of the role of hospitals in the delivery of health care services to the public has been accompanied by a concomitant change in the potential liability of hospitals. Hospitals were originally shielded from civil liability to their patients by virtue of the charitable immunity doctrine that was first adopted in Pennsylvania in Fire Insurance Patrol v. Boyd, 120 Pa. 624, 15 A. 553 (1888), and later extended to hospitals in recognition of their original benevolent function of treating indigent patients. See Knecht v. St. Mary’s Hospital, 392 Pa. 75, 77-78, 140 A.2d 30, 31-32 (1958); Gable v. Sisters of St. Francis, 227 Pa. 254, 260-61, 75 A. 1087, 1089 (1910). As health care facilities underwent a gradual metamorphosis from charitable institutions to commercial entities, Pennsylvania subsequently abolished the doctrine of charitable immunity in Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965). Shortly thereafter, the Supreme Court of Pennsylvania concluded that a hospital could be vicariously liable for the negligence of its own employees based upon general principles of agency. Tonsic v. Wagner, 458 Pa. 246, 253-54, 329 A.2d 497, 501 (1974) (recognizing respondeat superior as a grounds for hospital liability). See also, Brannan v. Lankenau Hospital, 490 Pa. 588, 599, 417 A.2d 196, 201 (1980) (a hospital’s vicarious liability includes the hospital staff’s responsibility to notify an independent contractor physician of a patient’s deteriorating condition).

The Superior Court of Pennsylvania later applied the Restatement (Second) of Torts §429 to hospitals and recognized that hospitals could be held accountable for the negligence of independent contractor physicians based upon the theory of ostensible or apparent agency. Reasoning that “the changing role of the hospital in society creates a likelihood that patients will look to the institution rather than the individual physician for care,” the court held that a hospital could be vicariously liable for the negligence of an independent contractor physician if the patient turns to the hospital, as opposed to a particular doctor, for care and the hospital “holds out” the physician as its employee. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 368-69, 430 A.2d 647, 649-50 (1980); Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 452, 481 A.2d 870, 874 (1984). Such “[a] holding out occurs ‘when the hospital acts or omits to act in some way which leads the patient to a reasonable belief [that] he is being treated by the hospital or one of its employees.’ ” Capan, supra at 370, 430 A.2d at 649.

Earlier this decade, Pennsylvania expanded the potential liability of hospitals even further by expressly adopting the theory of corporate liability which is predicated upon the systemic or institutional negligence of the hospital itself rather than the acts of individual hospital employees. In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Supreme Court acknowledged “a nondelegable duty which the hospital owes directly to a patient” that is not dependent upon the negligence of a third party. Id. at 339, 591 A.2d at 707; Edwards v. Brandywine Hospital, 438 Pa. Super. 673, 685-86, 652 A.2d 1382, 1388 (1995) (holding that if a hospital promulgates a substandard rule that its employees follow, the hospital may be corporately liable even though the employees who followed that protocol may not be at fault). Recognizing that “[t]he corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of its patients,” Thompson, supra at 338, 591 A.2d at 706 (footnote omitted), the court articulated four duties applicable to a hospital under the concept of corporate negligence: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment ...; (2) a duty to select and retain only competent physicians . . . ; (3) a duty to oversee all persons who practice medicine within its walls as to patient care ...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for all patients . . . .” Id. at 339-40, 591 A.2d at 707 (citations omitted); Moser v. Heistand, 545 Pa. 554, 558, 681 A.2d 1322, 1324-25 (1996).

Consistent with traditional negligence principles in a corporate negligence case, “it is necessary to show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm.” Thompson, supra at 341, 591 A.2d at 708; Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997). In addition, the plaintiff must establish that the hospital’s negligence was a substantial factor in bringing about the harm to the injured party. Thompson, supra; Welsh, supra. Moreover, “unless a hospital’s [corporate] negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff.” Welsh, supra at 514, 698 A.2d at 585; Walls v. Hazleton State General Hospital, 157 Pa. Commw. 170, 178, 629 A.2d 232, 235-36 (1993) (corporate liability cannot be established in the absence of expert testimony demonstrating a connection between the conduct and the resultant harm); Stipp v. Kim, 874 F. Supp. 663, 665-66 (E.D. Pa. 1995) (dismissing corporate negligence claim due to the plaintiff’s failure to produce the requisite expert opinion regarding a breach of one of the four duties enunciated in Thompson).

Although the doctrine of corporate negligence has amplified the tort liability of hospitals, it is not entirely without circumscription. For example, Thompson does not provide a basis for extending strict liability principles to hospitals, Cafazzo v. Central Medical Health Services Inc., 430 Pa. Super. 480, 484, 635 A.2d 151, 153 (1993), nor does it expose a hospital to corporate liability for failing to formulate certain policies relating to informed consent since mere negligence cannot satisfy the mental state requirement for a battery claim. Kelly v. Methodist Hospital, 444 Pa. Super. 427, 432-34, 664 A.2d 148, 150 (1995); Davis v. Hoffman, 972 F. Supp. 308, 313 (E.D. Pa. 1997). But see, Corrigan v. Methodist Hospital, 158 F.R.D. 70, 73 (E.D. Pa. 1994) (“Therefore, a hospital cannot be sued for corporate negligence for failure to seek informed consent under the traditional battery theory. A hospital can, however, be sued for negligently failing to oversee its doctors and failing to ‘formulate, adopt and enforce adequate rales and policies,’ which may include policies governing obtaining informed consent.”). Furthermore, while an HMO which participates in decisions affecting their subscribers’ medical care may be found corporately liable, Shannon v. McNulty, 718 A.2d 828, 836 (Pa. Super. 1998), Thompson has been held inapplicable to state-owned medical facilities governed by the medical-professional liability exception to sovereign immunity, Moser, supra, doctors’ offices or practices, Milan v. American Vision Center, 34 F. Supp.2d 279, 282 (E.D. Pa. 1998) (predicting “that the Pennsylvania Supreme Court will not extend the doctrine of corporate liability to cover optometrists’ offices”), and treatment provided by a hospital’s staff physician at his private office. Woolfolk v. Duncan, 872 F. Supp. 1381, 1394 n.25 (E.D. Pa. 1995).

Pennsylvania courts have had occasion to refine the parameters of the four duties established in Thompson. “[I]f a hospital fails to keep an incompetent doctor from practicing within its walls, and a patient suffers harm as a result, the patient may have a cause of action in corporate liability against the hospital.” Moser, supra at 560-61, 681 A.2d at 1326. Similarly, if a hospital grants surgical privileges to a physician “knowing that he was not competent to perform surgery,” a patient who is subsequently harmed as a result of surgery performed by that physician may advance a “claim of corporate negligence against the hospital for failure to retain only competent physicians and for failure to formulate and enforce policies to ensure quality care.” Welsh, supra at 515-16, 698 A.2d at 586. A hospital may also be corporately liable if it furnishes staff privileges to physicians “with knowledge of, or failure to learn of, their malpractice history.” Corrigan v. Methodist Hospital, 869 F. Supp. 1208, 1211 (E.D. Pa. 1994). Accord, Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 301 N.W.2d 156 (1981) (hospital could be corporately liable for providing orthopedic surgery credentials to a physician who, inter alia, was neither board-certified nor board-eligible in orthopedic surgery and had seven malpractice suits pending again him). Compare, Domineck v. Mercy Hospital of Pittsburgh, 449 Pa. Super. 313, 318, 673 A.2d 959, 962 (1996) (in the absence of any evidence that closer monitoring of a staff physician’s insurance coverage would have alerted the hospital that the physician was incompetent, a hospital cannot be corporately negligent for failing to ensure that its staff physicians maintained malpractice insurance).

Federal legislation, state regulations and health care industry standards likewise require hospitals to conduct continuous reviews of the quality of the health care services being provided within their institutions. See 42 U.S.C. §1320c-3(a)(l)(B) (peer review organizations must review professional activities of physicians at hospitals receiving Medicare reimbursements to determine if they satisfy professionally recognized standards of health care); 28 Pa. Code §§103.4(1), (9) and (12) (directing hospitals to create a quality control mechanism which includes a risk management component and to require the medical staff to evaluate the professional competence of applicants for staff privileges and establish controls that are designed to ensure high standards of ethical professional practices); 28 Pa. Code §103.34 (obligating the hospital governing body to develop personnel policies and procedures “which adequately support sound patient care”). The Joint Commission on Accreditation of Health Care Organizations compels hospitals who seek JCAHO accreditation to establish an “ongoing quality assurance program designed to objectively and systematically monitor and evaluate the quality and appropriateness of patient care, pursue opportunities to improve patient care, and resolve identified problems.” See “Tort Law — Expansion of Hospital Liability Under the Doctrine of ‘Corporate Negligence’ in Thompson v. Nason Hospital,” 65 Temp. L. Rev. 787, 791 n.40 (summer 1992) (quoting Accreditation Manual for Hospitals, §QA.l at 215).

The Health Care Quality Improvement Act of 1986, 42 U.S.C. §11101 et seq., further requires a hospital to access the National Practitioner Data Bank prior to granting or renewing clinical privileges to a physician in order to determine whether the applicant has been subject to any disciplinary action by a state medical board, monetary payments in settlement or satisfaction of any medical malpractice claims, adverse peer reviews by professional societies, or unfavorable action by a health care entity in connection with a request for privileges. 42 U.S.C. §1135(a). In fact, if a hospital does not request the foregoing information from the National Practitioner Data Bank, the hospital is presumed in any medical malpractice proceeding to have knowledge of any information reported to the data bank about the physician or health care practitioner in question. 42 U.S.C. § 11135(b). Thus, based upon the foregoing federal and state legislation and case law, CMC had a duty to grant privileges only to those physicians determined to be competent to provide the medical services authorized by the privileges and to implement quality control procedures to ensure proper patient care.

(C) Prior Acts of Negligence

Gurevitz maintains that evidence regarding the Mulligan, Cornfield, Moran and D’ Ambrosio spinal surgeries is relevant to his contention that CMC breached its Thompson duties to select and retain only competent physicians, to oversee all persons who practice medicine within its walls, and to formulate, adopt and enforce adequate policies to ensure quality patient care. In tort litigation, evidence of prior incidents or injuries “involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect.” Valentine, supra at 266, 687 A.2d at 1162; Vernon v. Stash, 367 Pa. Super. 36, 47, 532 A.2d 441, 446 (1987). Such evidence is admissible only if the prior incident “is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances.” Valentine, supra at 266, 687 A.2d at 1162; Lynch v. McStome and Lincoln Plaza Associates, 378 Pa. Super. 430, 436, 548 A.2d 1276, 1279 (1988). Moreover, evidence of other instances of negligence “that occur subsequent to that upon which the litigation is brought is not admissible to show knowledge of a condition prior to an [incident].” Hoffmaster v. County of Allegheny, 121 Pa. Commw. 266, 276-77, 550 A.2d 1023, 1028 (1988), alloc. denied, 522 Pa. 606, 562 A.2d 828 (1989). In that regard, the party seeking to introduce evidence of prior negligence bears the burden of establishing the requisite similarity as a prerequisite to its admission. Valentine, supra at 266, 687 A.2d at 1162-63; Spino v. John S. Tilley Ladder Co., 448 Pa. Super. 327, 346, 671 A.2d 726, 735 (1996), aff’d, 548 Pa. 286, 696 A.2d 1169 (1997).

The fact that a physician did not properly perform a particular surgical procedure does not necessarily mean that [s]he is not qualified to provide any medical services at a health care facility. For example, although an OB-GYN may demonstrate obstetrical deficiencies in managing a patient’s labor and delivery, that physician may still possess the requisite acumen to perform a gynecological procedure. In that instance, a hospital may arguably satisfy its Thompson obligations by restricting the OB-GYN’s privileges to gynecological care. For that reason, any evidence of prior alleged acts of malpractice should bear sufficient similarity to the case sub judice in order to be admitted into evidence.

Instantly, Gurevitz’s submissions reflect that Mulligan’s injuries occurred under sufficiently similar circumstances and are, therefore, admissible to demonstrate actual or constructive notice to CMC of Dr. Piczon’s ability to perform spinal surgery. Both Mulligan and Gurevitz assert that Dr. Piczon subjected them to unwarranted spinal surgery that he performed in a negligent manner. Additionally, the Mulligan operative procedures occurred prior to the dates of Gurevitz’s surgeries and Gurevitz has produced several expert reports indicating that Dr. Piczon deviated from the standard of care with regard to the Mulligan surgery. Moreover, Dr. Bronston, Dr. Fink, Dr. de Lotbiniere and Dr. Auld all refer to the Mulligan incidents in support of their conclusions that CMC did not comply with the institutional standard of care in the implementation and enforcement of its quality assurance procedures. Hence, Gurevitz will be permitted to introduce evidence of the Mulligan operative procedures in connection with his corporate liability claim against CMC. See e.g., Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 496-97 (Pa. Super. 1998) (hospital may be negligent for failing to properly supervise an employee if the hospital had reason to know of the employee’s propensity for improper conduct); Mandralla v. Weaver Corporation, 703 A.2d 480, 484 (Pa. Super. 1997) (evidence of similar past injuries involving a product was admissible to establish defendant’s knowledge that the product was defective prior to the date of the plaintiff’s injury).

In contrast, any reference to Cornfield’s surgeries is not relevant to Gurevitz’s corporate liability claim since Cornfield’s operative procedures postdate Gurevitz’s surgeries. How could CMC possibly have been expected to have had actual or constructive notice of a potential problem involving Dr. Piczon’s surgical abilities at the time of Gurevitz’s procedures on August 24, 1993 and November 18,1993, based upon Cornfield’s spinal procedures that were later performed on February 10,1994 and March 11,1994? To the contrary, Cornfield specifically averred in his complaint that CMC had knowledge of Piczon’s alleged incompetence by virtue of “the disastrous consequences” from Gurevitz’s surgeries in 1993. (See Cornfield’s complaint, ¶¶9, 42.) Thus, inasmuch as Cornfield’s operative procedures postdated Gurevitz’s surgeries, Gurevitz will be precluded from making any reference to the Cornfield matter during the trial of this case.

Last, with respect to the Moran and D’ Ambrosio incidents, Gurevitz has not submitted any expert reports or medical documentation suggesting that the unsuccessful results of those spinal surgeries were caused by the negligence of Dr. Piczon. It is well settled that a physician is not liable merely because the treatment in question ended unfavorably, nor does a presumption or inference of negligence arise from an unfortunate result. Collins v. Hand, 431 Pa. 378, 383, 246 A.2d 398, 401 (1968); Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 391, 387 A.2d 480, 485 (1978). Rather, the plaintiff must demonstrate that the physician’s negligence was a substantial factor in bringing about harm to the patient. Mitzelfelt v. Kamrin, 526 Pa. 54, 64, 584 A.2d 888, 892 (1990). The Moran and D’Ambrosio surgeries may have yielded unsuccessful results notwithstanding Dr. Piczon’s compliance with the applicable standard of care, and to date, Gurevitz has not submitted any expert opinion to the contrary. Accordingly, until such time as Gurevitz produces the appropriate expert documentation, he will be prohibited from introducing evidence relative to the Moran and D’Ambrosio surgeries. An order will be entered denying Gurevitz’s motion in limine in that regard without prejudice to his right to request reconsideration of this ruling following the submission of expert opinion(s) substantiating Dr. Piczon’s negligence in connection with Moran and D’Ambrosio.

ORDER

And now, September 10,1999, upon consideration of the motions in limine filed by plaintiff, Mark Gurevitz, and defendant, Community Medical Center, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

“(1) The motions in limine are granted in part and denied in part;
“(2) Plaintiff may introduce evidence concerning the spinal surgeries performed by defendant, Severino Pic-zon M.D., at defendant, Community Medical Center, involving Loretta Mulligan;
“(3) Plaintiff is precluded from making any reference to the spinal surgeries performed by defendant, Severino Piczon M.D., at defendant, Community Medical Center, involving Michael Cornfield since those surgeries occurred after the dates of plaintiff, Mark Gurevitz’s, surgical procedures; and
“(4) Until such time as the plaintiff, Mark Gurevitz, produces an expert report or opinion indicating that defendant, Severino Piczon M.D., deviated from the applicable standard of care in connection with the spinal surgeries he performed upon Steven Moran and Jean D’Ambrosio at defendant, Community Medical Center, plaintiff will be precluded from mentioning those surgeries at the time of trial.”

      . Although Gurevitz has produced pleadings or expert opinions relative to the surgeries involving Mulligan and Cornfield, he has not provided any documentation or expert opinion suggesting that Dr. Piczon deviated from the standard of care in connection with the Moran and D’Ambrosio surgeries. The only reference to the circumstances surrounding those spinal procedures is contained in Gurevitz’s brief in support of his motion in limine. While Gurevitz’s brief alludes to unsuccessful outcomes for Moran and D’Ambrosio, Gurevitz’s submissions do not establish that those failed surgeries were the product of Dr. Piczon’s negligence.


source: Caselaw Access Project

author: GORDON, J.,

license: Public Domain

text:
    Edwards v. Coleman

      Christine E. Munion, for plaintiff.

      Walter E. Robinson, for defendant.
    July 20, 1999
   GORDON, J.,

This personal injury case came before this court as a result of a motor vehicle accident on September 27, 1992. The plaintiff, Shantha Edwards, filed a claim against the defendant, Adeline Coleman, on a theory of negligence.

A jury trial commenced, and on November 14, 1997 at the close of the trial, the jury found Coleman not negligent. The plaintiff filed timely post-trial motions seeking judgment notwithstanding the verdict or a new trial in the alternative. Shortly after post-trial motions were filed, but not ruled upon, the plaintiff filed a notice of appeal. The Superior Court quashed the appeal as interlocutory and relinquished jurisdiction to this court. On March 3, 1999 oral argument was heard, and this court denied post-trial relief. This appeal followed.

Factually, on September 27,1992 at approximately 10 p.m., Edwards was driving northbound on City Avenue. As her Honda Civic was stopped at a red light, she was hit from behind by another vehicle driven by Coleman. Coleman was also driving northbound on City Avenue. Just prior to the impact, Coleman attempted to swerve, but her front left fender came into contact with the back right bumper of Edwards’ car. At the accident scene, Edwards got out of her car to examine her vehicle and exchange information with Coleman. Afterwards, each drove away in their respective cars. No police or emergency personnel were called to the scene. Repair of Edwards’ car cost $575. The next morning Edwards contacted a lawyer and went to the hospital for treatment. At the hospital, she was given pain medication and instructed to contact her family physician.

Edwards’ attorney advised her to contact a neurologist, who then scheduled her for physical therapy. The therapy lasted approximately two and one-half months before she was released by the therapist on January 5, 1993. She continued to see the neurologist until April 1993. Edwards went to see an orthopaeodic doctor for diagnostic tests in November 1995 and another ortho-paedist in February 1996. During her treatment with the last orthopaedic physician she was diagnosed with a torn rotator cuff in her right shoulder.

Plaintiff has asked for judgment n.o.v. or, alternatively, a new trial on damages and avers the following:

(1) The defendant stipulated to causing the accident and presented no evidence at trial that the accident did not cause the plaintiff’s injuries.

(2) Plaintiff presented uncontested expert testimony that the injuries were caused by the accident, yet the jury was allowed to ignore such evidence and find in favor of the defendant.

The plaintiff avers that based on the two factors above, the jury’s verdict was against the evidence, contrary to the law, and shocked the conscience.

There are two basis for granting judgment n.o.v. The first is because the verdict is contrary to the law; the second is that the verdict is against the evidence or weight of the evidence. In both instances such a motion is granted in the clearest of cases only. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d A.2d 1003 (1992). Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The evidence must be viewed in a light most favorable to the verdict winner and resolve all conflicts to her benefit. Nestor v. PennDOT, 658 A.2d 829 (Pa. Commw. 1995).

To determine that the verdict is contrary to the law, we must conclude that even with all factual inferences decided adverse to the plaintiff, the law nonetheless requires a verdict in her favor. To determine that the verdict is against the evidence, we must find that no two reasonable persons could fail to agree that the verdict was improper.

The basis for granting a new trial is that the jury’s verdict is so contrary to the weight of the evidence that it shocks the conscience and results in a miscarriage of justice. See e.g., McDole v. Bell Telephone, 441 Pa. Super. 88, 656 A.2d 933 (1995); Brindley v. Woodland Village Restaurant, 438 Pa. Super. 385, 652 A.2d 865 (1995); Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997). Determining whether a verdict shocks the conscience so that a new trial is warranted is always within the discretion of the trial judge and is reviewable only where there is an abuse of discretion. See e.g., Myers v. Gold, 277 Pa. Super. 66, 419 A.2d 663 (1980); Macina v. McAdams, 280 Pa. Super. 115, 421 A.2d 432 (1980); Sacco v. City of Scranton, 115 Pa. Commw. 512, 540 A.2d 1370 (1988).

As with judgment n.o.v., when considering a motion for new trial, the verdict winner must be given the benefit of the evidence which is most favorable to her, together with all reasonable inferences therefrom. Ferruzza v. Pittsburgh, 394 Pa. 70, 145 A.2d 706 (1958); Bream v. Berger, 388 Pa. 433, 130 A.2d 708 (1957); Farmers’ Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908 (1958). In the case at hand, the jury found for the defendant, and so the record must be reviewed “under a lamp which resolves all doubts, contradictions and ambiguities in favor of the [defendant] and obliterates all inferences adverse to [her].” Kurtz v. Philadelphia Transportation Company, 394 Pa. 324, 325-26, 147 A.2d 347, 348 (1959).

This court answers the issue of the defendant’s stipulation by stating generally that the defendant is not required to put forth an affirmative defense, and simply stipulating that she hit the plaintiff’s car from behind does not result in judgment as a matter of law. The stipulation was not an admission that the alleged injuries were caused by the accident. In tort, the plaintiff must prove not only that an accident occurred, but also the plaintiff was harmed and the accident was the cause of that harm. Lieberman v. Abat’s Auto Tag Service Inc., 344 Pa. Super. 350, 496 A.2d 831 (1985).

The plaintiff asserts that despite having access to an expert medical witness who examined the plaintiff, the defendant presented no evidence that her injuries were not caused by the accident. Again, however, the plaintiff has the burden to prove, by a preponderance of the evidence, both causation and damages, and the jury was instructed as to this burden as follows:

“The plaintiff, in order to prevail, must prove each and every element of her case by a preponderance of the evidence. The evidence establishes a contention by a fair preponderance if you are persuaded that it is more probably accurate and true than not.” (N.T. 11/14/97 p. 98.)

The defendant can choose to present no witnesses at all if she feels the plaintiff’s case is inadequate to meet the burden. Regarding the absence of defendant’s expert, this court instructed the jury thusly:

“In presenting her case, the defendant did not call as a witness Dr. Asians, the doctor who examined the plaintiff on the defendant’s behalf. The general rule as it applies in the case of the failure to call a witness is as follows: Where a potential witness is available and is shown to have special information relevant to the case so that the testimony would not be cumulative and where his relationship to one of the parties is such that the witness would ordinarily be expected to favor that party, then if such party does not produce the testimony and there is no satisfactory explanation for his failure to do so, you may draw an inference that such testimony would have been unfavorable.” (N.T. 11/14/97 pp. 95-96.)

The jury is not instructed that they must determine that the defendant’s expert would have been unfavorable, but that they may, if they first find there was no satisfactory explanation for his failure to testify. It was reasonable for a jury to find the defendant’s explanation credible that the need for an expert was unnecessary given the weakness of the plaintiff’s case in proving her burden.

As to the plaintiff’s second averment that the jury cannot dismiss the undisputed testimony of an expert medical witness, she cites as support Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997); Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995); and Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). Each of these cases, however, are quite distinguishable from the present case regarding the appellate courts’ holding on expert testimony.

In Craft, the jury found that the defendant was negligent in causing the motor vehicle accident, but found that negligence was not a substantial factor in the plaintiff’s harm. The similarity with the case sub judice, however, ends there. The Craft case was not a dispute over whether injuries existed nor whether they were a direct result of the accident caused by the defendant. Both plaintiff and defendant in that case put on expert medical witnesses. Each expert testified that the plaintiff was injured as a result of the accident. The experts differed only with regard to the severity and duration of the injury. By placing his own expert on the stand to state that the injuries were a result of the accident, the defendant was, in effect, agreeing with the plaintiff as to causation of the plaintiff’s injuries. Based on the acknowledgment of causation of harm by both parties, the testimony regarding that issue was undisputed. Under such circumstances, therefore, it was against the evidence that the jury found that the defendant’s negligence was not a substantial factor in harm to the plaintiff, and the trial court did not abuse its discretion in ordering a new trial.

In the present case, there was no agreement between the parties (via expert witnesses) that the plaintiff’s harm was a result of the accident. Only the plaintiff’s witness opined such. Although the defendant did not present an expert to refute the claim, a vigorous cross-examination revealed the defendant’s disagreement with causation. (N.T. 11/13/97 pp. 41-46.) It was therefore up to the jury to weigh the expert’s opinion in accordance with the instructions given. The jury was instructed:

“In deciding whether or not to accept [the expert’s] opinion, you should consider the evidence as to his training, education or experience, as well as the reasons and facts on which his opinions were based. Also, in deciding whether or not to accept his opinions, you should bear in mind that you are not bound to accept them merely because it is the testimony of someone having special skill or knowledge. In general, the opinion of an expert has value only when you accept the facts upon which it is based. This is true whether the facts are assumed hypothetically by the expert, come from his personal knowledge or from some proper source or from some other combination of these.” (N.T. 11/14/97 p. 95.)

Likewise in Rozanc, supra, although the facts surrounding the accident are very similar, here too, the defense placed expert medical testimony into evidence that confirmed the plaintiff’s injuries were the result of the accident in question. The Superior Court ruled “this defense testimony coupled with appellant’s own testimony about her injuries and that of her treating physician who described injuries to her neck and shoulder, made it un-contradicted that the appellant suffered some injuries as a result of the accident.” Id. at 648-49, 664 A.2d at 620.

We must be mindful of the difference between a case where both the plaintiff and defense experts testify to the existence of an injury and a case where the defendant chooses not to call an expert witness, as in the case at bar. The latter is not an acquiescence of the plaintiff’s harm.

Also, in Neison, supra, the Pennsylvania Supreme Court discussed the issue of uncontested evidence, but under a factual situation where the defendant’s expert confirmed that the plaintiff’s injuries were the result of the accident. The disagreement between the plaintiff and defendant in Neison as well as in the previous two cases cited was only to the extent and severity of the injuries; not a dispute over whether an injury existed at all.

As to Edwards’ final argument that the jury’s verdict was so contrary to the evidence as to be shocking, again the standard of review requires that no two reasonable minds could fail to agree, and that the verdict results in a miscarriage of justice. See e.g., Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). Under such a standard, a new trial will be ordered in the clearest of cases only. This court will not substitute its findings of fact for that of the jury’s where there exists a reasonable explanation for the finding. The jury was told by this court that the defendant admitted being negligent in causing the accident. It was then instructed on the legal issue of proximate cause:

“Now, what do we mean by legal cause? Proximate or legal causation is defined as that which in a natural and continuous sequence, unbroken by any sufficient intervening cause produces injury and without which the result would not have occurred. In order for the plaintiff to recover, the defendant’s liability-creating conduct must have been a substantial factor in bringing about the alleged wrong or harm. That is what the law calls legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imagined or fanciful factor or a factor having no connection or only an insignificant connection with the complained acts.” (N.T. 11/14/97 pp. 99-100.)
The Pennsylvania Superior Court noted in James v. Nolan, 418 Pa. Super. 425, 433, 614 A.2d 709, 713 (1992), “[i]t is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s finding which can only be defeated when there is no reasonable theory to support the jury’s verdict.”

The question is whether there is a reasonable theory to support the verdict. Under the facts of this case, it is as reasonable for a jury to find that the defendant’s negligence was not a substantial factor in the plaintiff’s injury as it would be for another jury to find otherwise. There are many possibilities why this jury did not find proximate cause. The jury could have believed the injury to have been sustained sometime over the four-year period between the accident and the diagnosis by the expert witness. Or the jury could have found that there was no injury at all, choosing instead not to accept the testimony of the plaintiff’s expert as they have every right to do. There was certainly enough evidence presented from which a jury could doubt the plaintiff’s assertions of harm, and give credibility to the defendant’s claim that this was merely a fender bender, including: that the car did not move upon impact; that the damage to the vehicle was limited to $575; that both cars remained fully operational after the accident; that both parties were able to drive away from the accident and did so almost immediately after exchanging insurance information; that no medical or police personnel were called to the scene; and that none of the treating doctors in the four years prior to the plaintiff’s consultation with her expert witness diagnosed a tom rotator cuff.

The plaintiff avers in her brief a litany of things that the defense did not do to prove that the defendant’s actions were not a substantial factor in the plaintiff’s harm. Again, however, it is the plaintiff’s burden. If the jury finds her evidence and witnesses incredible, then she has not met that burden.

The dispute in this case was whether this accident caused the injuries to the plaintiff for which she sought redress. The jury heard the evidence and after weighing it, determined that this question should be answered in favor of the defendant.

Whatever the specific reason for the jury’s verdict, it is this court’s opinion that it does not shock the conscience, is not contrary to the law, and is not against the weight of the evidence as presented.

For the foregoing reasons, the plaintiff’s motion for post-trial relief was denied.


author: MINORA, J.,

text:
    Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority
    C.P. of Lackawanna County,
    no. 96 CV 3535.

      Patrick E. Dougherty and Paul T. Oven, for plaintiffs.

      Francis G. Wenzel Jr., for defendant.

      June 28, 1999
   MINORA, J.,

Defendant, Lackawanna County Multi-Purpose Stadium Authority, has filed a motion to compel a second independent medical examination of the plaintiff by Dr. Badigo on behalf of the defendant and defendant’s liability insurance carrier. For the reasons set forth below, the defendant’s motion to compel a second IME is denied.

FACTUAL AND PROCEDURAL BACKGROUND

The complaint of the plaintiffs alleges that on July 22, 1994 at 9:30 p.m., the plaintiffs were lawfully on stadium’s premises attending a baseball game as business invitees of the defendant. At that time, an accumulation of water or other liquid was allowed to exist on the stairwell of the stadium’s premises between the upper deck and the main concourse. At that date, place and time, the plaintiff, Debra Wilczynski, while walking down the stairwell, was caused to fall by the liquid accumulation, violently striking her head, allegedly causing permanent closed head injuries in the nature of cognitive impairment. (See plaintiffs’ complaint pp. 1-16.)

Approximately six months prior to the filing of this lawsuit, plaintiff voluntarily submitted herself for an evaluation by Dr. John R. Harvey, a licensed psychologist and director of psychology at Allied Services for the Handicapped. This evaluation took place on or about January 24 and 25, 1996 at the request of Cor-Vel Corporation, a claim corporation acting on Authority’s behalf. Dr. Harvey conducted a number of tests including Wais-R; Wechsler Memory Scales; Woodcock-Johnson Psycho-Educational, Dean Woodcock Sensory Motor; Booklet Categories Test; MMPI-2; Beck Anxiety Inventory; Beck Depressing Inventory; and Tests of Variable attention. As a result of the two-day examination and the battery of tests performed, Dr. Harvey generated a copious, thorough and comprehensive report covering 18 pages. (See p. 9 and exhibit 5 of defendant’s motion for second IME.)

In his report, noted above, Dr. Harvey summarized that Debra Wilczynski now possesses intellectual abilities which are slightly below expectation based upon her premorbid functioning. He further notes weakness in auditory attention, short-term auditory memory, auditory active working memory and visual organization. Dr. Harvey also found Debra to have moderate difficulty with complex verbal and visual memory and she now has delayed recall showing moderate to severe weakness. The evaluation goes on to note that the response speed and the variability of the plaintiff are significantly high and are consistent with neurological difficulties.

In concluding, the doctor noted that overall, the data points to selective cognitive and mood deficits that are secondary to her head injury. His final diagnosis is am-nestic disorder secondary to closed head injury and mood disorder secondary to closed head injury with depressive features.

Additionally, the plaintiff has received extensive treatment-oriented medical and psychological testing from her own group of health care professionals in addition to the defense independent medical exams.

Defendant now requests that the plaintiff be compelled to submit to a second IME by a different health care professional, Dr. Badigo, as opposed to their first examiner, Dr. Harvey, for essentially the following reasons: (1) In the last year the defendant has now acquired all of plaintiff’s expert testing data; (2) Defendant has consulted with a new expert, Dr. Badigo, who suggests a need for his examination and assessment; (3) Plaintiff’s multiple experts justify an additional expert evaluation, examination and report; (4) A new exam is justified by the passage of time, the new or updated plaintiff’s reports and the defendant should be allowed to choose its own IME expert.

It is significant that there is no allegation present that the plaintiff has sustained a new injury nor has the plaintiff been accused of deliberately concealing an injury at the time of the first examination. In such a case, consecutive examinations have been allowed. See Lodolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998).

DISCUSSION

Pa.R.C.P 4010(a) authorizes a trial court to order the mental or physical examination of a party when the mental or physical condition of that party is in controversy. In addition to the requirement of the party’s condition being in controversy, this rule also provides that said examination may be granted only upon a motion for good cause shown. John M. v. Paula T., 524 Pa. 306, 312, 571 A.2d 1380, 1383 (1990). The good cause requirement is intended to ensure that a plaintiff’s privacy is not unduly evaded, Uhl v. C.H. Shoemaker & Son Inc., 432 Pa. Super. 230, 234, 637 A.2d 1358, 1360 (1994), and to preclude the use of such examination for improper purposes. McGratton v. Burke, 449 Pa. Super. 597, 601-602, 674 A.2d 1095, 1097 (1996), allocatur denied, 546 Pa. 667, 685 A.2d 546 (1996). The determination of whether the requisite good cause exists is left to the sound discretion of the trial court and this discretion may not be reversed on appeal unless it is manifestly unreasonable and/or an abuse of discretion is shown. Id.

In the instant case, this court is confronted with the issue of whether the defendant has the right to submit a plaintiff to a second IME by a new physician when the defendant, at its peril, chose not only the original IME physician but also the timing, the manner and the scope of that examination with the full cooperation of the plaintiff. The defendant argues that the plaintiff has clearly made her physical condition an issue in this particular case by raising numerous allegations of severe and serious personal injuries. The defendant argues that the nature of the accident, the slip and fall, the fact that it was a closed head type of injury with related cognitive impairments, raise an issue that would make one question the severity of the plaintiff’s allegations of injuries.

In addition, the defendant argues that, in order for the closed head injury and cognitive impairments to be evaluated, it is necessary to have both a before and after profile of the plaintiff. Therefore, the defendant is now requesting that the plaintiff undergo an IME by a neurop-sychologist regarding the closed head injuries and cognitive impairments that she is alleged to have suffered as a result of her slip and fall at the Lackawanna County Stadium. In an attempt to have the plaintiff submit to this second IME, the defendant has made arrangements for examination by a doctor from the Philadelphia area who the court believes would be willing to travel to this area to accommodate the needs of the plaintiff.

Initially, we should note that the plaintiff never disputed the fact that she is required to submit to an IME. Although the court need not address this issue, for the purposes of completeness, we shall. In order to dispose of this issue, we review again the examining governing civil procedure rule, Rule 4010, Pennsylvania Rules of Civil Procedure, it provides as follows: “(a) [w]hen the mental or physical condition [including blood group] of a party or . . . under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a [physician] or to produce for examination [a] person in [his] custody or legal control. The order may be made only [up] on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

In resolving this issue, we need only look at the first prerequisite in the above referenced Rule of Civil Procedure. Whether the plaintiff’s physical condition is in controversy in the current case is the threshold issue. We hold that the plaintiff has clearly made her physical condition an issue in controversy in the case at bar. We find that due to the serious nature and extent of the plaintiff’s closed head injuries and her contention that these injuries were a direct result of a fall on the premises of the Lackawanna County Stadium, these factors show that the current litigation is demonstrative of the fact that the plaintiff’s physical condition is presently in controversy. In support of our holding, we need only look at the plaintiff’s own complaint in which she specifically details her claims of injuries to a closed head cognitive impairment injury.

In addition, we should also note that the plaintiff does not dispute the fact that she has placed her physical injury in controversy nor does the plaintiff argue that she will not submit to an IME. In fact, based upon all of the above, we can resolve this issue by first holding that the plaintiff has placed her physical condition in controversy and thus, the defendant is entitled to have the plaintiff undergo an IME. Having disposed of this issue, we are now confronted with whether the plaintiff needs to be required to submit to a second IME.

As was stated in the introductory comments of this opinion, this plaintiff has already submitted herself to an independent medical examination by Dr. Harvey, an expert chosen by the defendant in this particular case. Dr. Harvey’s evaluation took place on or about January 24 and 25, 1996 at the request of Cor-Vel Corporation, a claim corporation acting on the defendant Authority’s behalf. Dr. Harvey conducted a series of tests over a period of two days and produced an extensive report.

Rule 4010 is silent with regard to the number of examinations that a plaintiff or a party can be compelled to submit to.

Pa.R.C.P. 4010(a) does not specifically permit or prohibit more than one examination of a plaintiff, and a defendant bears a heightened burden of demonstrating a good cause for a supplemental medical examination. Rule 4010(a) does not give a party mandatory rights to more than one physical examination of the other party, but a court may permit an additional examination if subsequent discovery reveals that the plaintiff is alleging a new injury since that date of the initial examination or deliberately concealed an injury at the time of the first examination. See Schroth v. Philadelphia Rapid Transit Co., 280 Pa. 36, 40, 124 A. 279 (1924). In that case, an additional examination was denied since there was not evidence of concealment from the physician. Lodolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998).

However, a court is allowed to permit an additional examination if subsequent discovery reveals that the plaintiff is alleging a new injury since that date of the initial examination or if the plaintiff deliberately conceals an injury at the time of the first examination. See Lodolce, supra at 57. The Lodolce case also stated that: “[I]n those unusual instances in which consecutive examinations have been allowed, exceptional circumstances have existed to justify the inconvenience and the initial burden to the plaintiff.” Id. Similarly, a well recognized treatise on discovery procedures has noted the following:

“Rule 4010 is silent on the number of examinations to which a party can be subjected. Whether more than one examination should be allowed therefore, falls wholly within the discretion of the court. A second examination may be proper in a case in which the plaintiff’s answers to written interrogatories or questions propounded at an oral deposition disclose a claim for an injury which was not originally asserted and which was not inquired into by the physician at the first examination. A second examination may also be proper where an injury was deliberately concealed at the first examination and was subsequently discovered by the moving party.” Goodrich-Amram 2d, vol. 18 §4010(a) p. 358.

Instantly, we find that there is no indication in this case that the plaintiff has alleged any new injuries or deliberately concealed her original injury. We also find that there was no evidence of exceptional circumstance to justify the inconvenience and additional burden of having the plaintiff undergo an additional IME with another physician. Because the determination of whether the plaintiff should submit to two separate IMEs is at the sound discretion of this court, we hold that there are no reasons yet advanced by the defendant to justify the necessity of the plaintiff undergoing a second medical examination by a new physician.

The reasons propounded by the defendant have failed to demonstrate sufficient grounds for subjecting the plaintiff to serial examinations by two different physicians. There is no suggestion in the defendant’s motion that the plaintiff withheld any medical history or information from Dr. Harvey or that she was anything less than completely candid, forthright and honest. Nor is there any indication in the defendant’s motion that the plaintiff has developed a new injury; indeed, the medical conditions that she currently asserts as being caused by the fall at Lackawanna County Stadium are identical to those which were pled and evaluated by Dr. Harvey. In the interim, however, the court would allow Dr. Harvey to update his original evaluation and issue a supplemental report and have a second examination of the plaintiff for the reasons that have been advanced by the defendant and also because this matter has been agreed to by the plaintiff. Apparently, there exists new data that is now available that was not originally available to Dr. Harvey. If these items can be made available to Dr. Harvey and if after review of these items he feels it presents the necessity for yet a second examination of the plaintiff in order to update his original examination of the plaintiff, the court will allow this.

It should remain clear that all updated records that were not provided to Dr. Harvey in his prior examination are first to be provided by defense counsel to their chosen expert, Dr. Harvey. When Dr. Harvey has been given an opportunity to review these updated materials that he did not have the benefit of having at his original examination, Dr. Harvey can then, if needed, be allowed to update his original examination of the plaintiff with a supplemental examination. The court is disposed to offering this as a compromise solution because the plaintiff has indicated a willingness to compromise with such a solution; otherwise, it would not be a difficult conclusion for the court to render a decision that no supplemental examination should be allowed.

CONCLUSION

In sum, this court holds that the plaintiff should be allowed to submit to an additional IME with the defendant’s original health care provider, Dr. Harvey, because she has placed her own physical condition in controversy in the present case. The defendant was free to choose its original health care provider and it has done so. Dr. Harvey has provided a copious report from his original examination. Any new materials that were not a part of that should be provided to Dr. Harvey. If Dr. Harvey elects to need an additional examination of the plaintiff to supplement his original report, after the review of new data, then the court will allow this.

For these reasons and those stated above, we hold that the defendant’s motion to compel attendance at a second independent medical examination with a second neurop-sychologist is denied; however, the plaintiff will submit herself to a supplemental examination by Dr. Harvey since he has consented to do so and since there may be a need to update his original report.

The terms of this order should be completed within the time duration of 60 days, so as to not unduly delay the proceedings.

ORDER

And now to wit, June 28,1999, it hereby ordered and decreed that the defendant’s motion to compel attendance at an independent medical examination of a second health care provider, Dr. Badigo, is denied. However, the defendant shall be allowed to have a supplemental examination conducted of the plaintiff by Dr. Harvey if after Dr. Harvey receives the new materials he feels such an examination is warranted in order to update his original findings. The parties are to proceed in a manner consistent with this opinion and implemented within a 60 daytime period.


author: VARDARO, J.,

text:
    Wimer v. Macielak

      C.P. of Crawford County,
    A.D. no. 1995-1052.

      James P. Lay III, for plaintiffs.

      Bernard R. Rizza, for defendants Macielak, Laub & Orthopedic Associates.

      John M. Quinn, for defendants Durick and Meadville Medical Center.
    August 23, 1999
   VARDARO, J.,

The above captioned case is a medical malpractice suit against the named defendants for personal injuries suffered by the plaintiff, John D. Wimer, while under their care as a patient at the Meadville Medical Center on or about October 7,1993. It has been alleged that as a result of the medical negligence of the defendants, the plaintiff suffered a spinal cord injury which has left him a paraplegic.

During depositions of defendants Macielak and Du-rick, plaintiffs’ counsel asked certain questions designed to elicit the opinions of the defendants. These questions were objected to by defendants’ counsel, and the defendants were directed not to answer the questions. Plaintiffs’ counsel has now set forth a motion to compel the defendants to answer these questions. It is to this motion that we now turn.

DISCUSSION

During the deposition of Dr. Macielak, the following exchange occurred:

“Q: Doctor, if there were to be a surgical intervention in response to the complaints that — or the problems that Mr. Wimer exhibited, I believe your notes say quicker slash better. Is reasonable to believe that the likelihood of successful reversal of the problem or minimizing the problem would be greater if the surgical intervention is performed at the earliest reasonable time?
“A: It would depend on the etiology of the problem.
“Q: Okay. Do you hold an opinion as to the etiology of this problem?
“Mr. Rizza: As of when?
“Mr. Lay: Today.
“Mr. Rizza: Well, no, he is not going to testify to what his opinion is today, Jim. You’re calling him to testify to
“ Mr. Lay: Not, no, I’m entitled to ask him what his opinion is.
“Mr. Rizza: You’re entitled to ask him what his opinion is based upon the facts at the time he was treating Mr. Wimer, he’s not here acting as an expert for or against himself or for you, so to the extent it’s beyond that period of time....
“Q: Have you since formed an opinion as to the cause of Mr. Wimer’s neurological deficits following the first surgery?
“Mr. Rizza: Again, I’ll raise the objection and instruct him not to answer to the extent that he didn’t have these opinions during the time he was treating Mr. Wimer.”

During the deposition of Dr. Durick, substantially similar questions were presented and similar objections were set forth. The pertinent exchanges which occurred in the deposition of Dr. Durick follow:

“Q: Doctor, if you know then, that is, on the afternoon of October 7 while John Wimer was in the recovery room, if you knew then what you know now, what, if anything, would you have done differently?
“Mr. Quinn: Object and direct him not to answer.
“Q: On what basis?
“Mr. Quinn: It’s his opinion.”

In support of the motion to compel answers to the questions which were objected to, the plaintiffs look to Pa!.R.C.P. 4003.1(c) which provides that “[ejxcept as otherwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.” It is the position of the plaintiffs that based upon the unambiguous language of Rule 4003.1(c), the defendants must provide their opinions on the matters inquired.

We first observed that the “scope of discovery is subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011.” Pa.R.C.P. 4003.1(a). Subject to these provisions then, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” Id. Therefore, if the subject matter of the questions presented by the plaintiffs falls within the bounds of discovery which is permitted and not also within the bounds of that expressly prohibited, the defendants will be required to respond. The salient question for our purposes is whether the actual subject matter that the plaintiffs’ deposition questions are intended to elicit is permitted by our rales of discovery as they relate to these parties and this action.

The plaintiffs’ deposition questions all seek from the defendants their opinions relating to their care of the plaintiff. The plaintiffs maintain that since the discovery of a deponent’s opinion is now expressly permitted under the authority of Rule 4003.1(c), that the defendants’ answers must be compelled. Ostensibly, under the plaintiffs’ interpretation of Rule 4003.1(c), the mere fact that an opinion is requested will justify the subject matter of the question. That is, even matters outside the proper scope of discovery must be disclosed when framed so as to elicit an opinion. We find the plaintiffs’ overreaching interpretation of Rule 4003.1(c) fails to consider the complete text of this rale and, therefore, we are compelled to disagree.

Rule 4003.1(c) sets forth the general rale that opinions are now discoverable, but prefaces this general rale with the specific limitation that they may be discoverable “[ejxcept as otherwise provided by these rules.” Pa.R.C.R 4003.1(c). Therefore, the application of this rale is necessarily subject to the rales which apply to discovery generally. The general rale that opinions are discoverable cannot be read as an absolute and in a vacuum as the plaintiffs would have it, but must be read in the context of other discovery rales. The first point of our inquiry in determining whether the matters at issue are properly discoverable is not whether they have been requested in the form of an opinion, but whether they are within the proper scope of discovery.

Plaintiffs’ counsel requested of defendant Macielak his opinion as to the cause of the plaintiff’s medical condition, not at the time of his treatment of the plaintiff, but instead his opinion as to causation at the time of the deposition. Similarly, defendant Durick was asked his opinion as to what he would now do differently in treating the plaintiff based on what he knows at this time.

Both sets of questions to these defendants seek the discovery of information which is irrelevant to the subject matter of plaintiffs’ cause of action. It has been alleged that the defendants were negligent in their care and treatment of the plaintiff while under their care in October of 1993. Therefore, it is the opinions which they may have held at the time of their treatment of the plaintiff at that time which are at issue in this cause of action and not their opinion nearly six years later as to either causation or whether a different course of treatment would have been more effective. Any opinions which they may now hold based on reflection or information not then known and which were not held at the time they treated the plaintiff are irrelevant to establishing the nature of care provided at the time of the alleged negligence or the treatment provided and will not advance the plaintiffs’ case in establishing that the care provided at the time of the plaintiff’s injury was negligent. See Obenski v. Brooks, 7 D.&C.3d 253 (1978) (defendant physician is only required to offer his opinion as to causation as of the time of the treatment of the plaintiff).

Based upon the foregoing, we conclude that the subject matter of the questions at issue is precluded by Pa.R.C.P. 4003.1(a) and, therefore, outside the proper scope of discovery.

Accordingly, we will enter the following order:

ORDER

And now, August 23, 1999, the plaintiffs’ motion to compel discovery is denied.


author: ACKERMAN, J„

text:
    Northwestern National Casualty Company v. Robson

      C.P. of Westmoreland County,
    no. 537 of 1999.

      Dale S. Douglas, for plaintiff.

      Lawrence D. Kerr, for defendant.
    October 1, 1999
   ACKERMAN, J„

Before the court are cross-motions for summary judgment. The issue raised by these motions is whether or not the stacking of underinsured motorists’ benefits should be permitted where the insured’s waiver of UIM benefits is void because of the insurer’s noncompliance with the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1731(c.l). For the reasons that follow, I conclude that stacking is permitted when a UIM waiver is void, and summary judgment will be entered in favor of the insured.

Thomas W. Robson purchased the insurance policy in question, which covered three vehicles. The policy provided third-party liability coverage up to $75,000 for each vehicle. The agent for Northwestern National Casualty Company obtained Mr. Robson’s signature on a form to reject both uninsured and underinsured motorist coverage, which was printed on a single sheet of paper. On November 9,1996, Robin Lee Robson, Thomas Robson’s wife, was killed in one of the insured vehicles when it was struck by another vehicle which was underinsured. Northwestern concedes that Mr. Robson’s waiver of UIM coverage is defective because the statutory waivers were not printed on separate sheets of paper, as is required by section 173 l(c. 1) of the MVFRL. Northwestern has provided UIM coverage to Mr. Robson in the amount of $75,000, which equals the bodily injury liability limits under the policy. Mr. Robson then sought stacked insurance coverage as a result of the defective waiver, but Northwestern refused to stack coverage for the remaining two vehicles. Subsequently, Northwestern filed this declaratory judgment action against Mr. Robson.

Section 1731(c.1) of the MVFRL requires the rejection or waiver forms for uninsured and underinsured motorist coverage to be printed on separate sheets of paper. 75 Pa.C.S. §1731(c.l). The statute provides that rejection forms not specifically complying with the technical requirements of section 1731(c.1) are void. The consequence of an insurer’s failure to procure a valid rejection of coverage is that the UIM coverage under the policy “shall be equal to the bodily injury liability limits.” 75 Pa.C.S. §1731(c.1). In Lucas v. Progressive Casualty Insurance Co., 451 Pa. Super. 492, 680 A.2d 873 (1996), the Superior Court of Pennsylvania analyzed the effect of an insurer’s noncompliance with section 1731(c.1) requiring the rejection forms to be on separate sheets of paper (Lucas violation), and held that in the presence of such a violation, the insureds were entitled, by operation of law, to underinsured motorist coverage equal to their bodily injury liability limits. Id. at 499, 680 A.2d at 877. In the instant case, the rejections of UM/UIM coverage were contained on a single sheet of paper. Northwestern does not dispute that the waiver was void due to the Lucas violation. However, Northwestern contends that the complete remedy for such a violation is set forth in section 1731(c.1) of the MVFRL because UIM coverage is limited to the bodily injury liability limits.

The issue in the instant case is whether the insured may stack underinsured motorist coverage for the remaining two vehicles under the policy when a Lucas violation has occurred. The “stacking statute” of the MVFRL is found in section 1738, which provides:

“(a) Limit for each vehicle. — When more than one vehicle is insured under one or more policies providing uninsured or underinsured motorist coverage, the stated limit for uninsured or underinsured coverage shall apply separately to each vehicle so insured. The limits of coverages available under this subchapter for an insured shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.” 75 Pa.C.S. § 1738(a).

Pennsylvania courts have not addressed the question of whether the insured can stack UIM coverage when the insured obtains such coverage by operation of law as a result of a Lucas violation.

The Statutory Construction Act of 1972 is a guide in the interpretation of the provisions of the MVFRL. Legislative intent may be determined by considering the following factors:

“(1) The occasion and necessity of the statute.
“(2) The circumstances under which it was enacted.
“(3) The mischief to be remedied.
“(4) The object to be obtained.
“(5)' The former law, if any, including other statutes upon the same or similar subjects.
“(6) The consequences of a particular interpretation.
“(7) The contemporaneous legislative history.
“(8) Legislative and administrative interpretations of such statute.” 1 Pa.C.S. §1921(c).

A court must construe the MVFRL liberally “in order to promote justice and to give effect to its objects.” Motorists Insurance Companies v. Emig, 444 Pa. Super. 524, 538, 664 A.2d 559, 566 (1995). (citation omitted) One of the objects of the MVFRL is to afford the greatest possible coverage to the insured. Id. at 538, 664 A.2d at 566; see Lucas, 451 Pa. Super, at 499, 680 A.2d at 877. In close or doubtful cases, a court “must interpret the intent of the legislature and the language of insurance policies to favor coverage for the insured.” Motorists, 444 Pa. Super, at 538, 664 A.2d at 566.

Sections 1731 and 1738 of the MVFRL must be read in pari materia since those sections relate to the same class of persons or things. See 1 Pa.C.S. § 1932(a); see also, Salazar v. Allstate Insurance Co., 549 Pa. 658, 663, 702 A.2d 1038, 1041 (1997). Further, a court is required to “heed closely to the subchapter into which the various provisions of the MVFRL are organized.” Motorists, 444 Pa. Super, at 541, 664 A.2d at 568. Both section 1731 and section 1738 are found in subchapter “C” of the MVFRL, which is entitled “Uninsured And Underinsured Motorist Coverage.” Specifically, section 1731 covers the availability, scope and amount of coverage and section 1738 involves the stacking of uninsured and un-derinsured benefits. Subchapter “C” contains a “comprehensive statutory scheme regulating the availability and the offering by insurers of UM/UIM coverages, the amounts which may and must be offered and the acceptance or waiver of UM/UIM coverages by insureds.” Id. at 542, 664 A.2d at 568. Sections 1731 and 1738 of the MVFRL serve the same purpose and relate to the same aspect of motor vehicle financial responsibility. See Motorists, 444 Pa. Super, at 545, 664 A.2d at 569.

As the court discussed in Byers v. Amerisure Insurance Company, 745 F. Supp. 1073, 1078-79 (E.D. Pa. 1990), the legislature is presumed to be familiar with the case law pertaining to the legislation at the time that it is enacted. Id. (citing Wallaesa v. Wallaesa, 174 Pa. Super. 192, 196, 100 A.2d 149, 153 (1953)). Stacking was uniformly allowed under Pennsylvania law when the MVFRL was passed. Id. The legislature statutorily reinforced this pro-stacking policy when it added section 1738 to the MVFRL. There is no language in section 1731, found in the same subchapter as section 1738, which precludes the stacking of UM/UIM coverage. This is in sharp contrast to section 1717 of the MVFRL, where the legislature specifically proscribes the stacking of first-party benefits. 75 Pa.C.S. §1717; see Byers, 745 F. Supp. at 1078. Furthermore, when subsection (c.1) was included in the 1990 amendments to the MVFRL, the legislature added a second clause to subsection (d), entitled “Limitations on recovery,” yet they did not include a provision that would prohibit stacking.

After considering the liberal construction to be applied to the MVFRL, the pro-stacking policy in place when the MVFRL was enacted, the addition of section 1738 providing for stacking, the absence of language in section 1731 specifically proscribing stacking, the fact that the legislature chose not to preclude stacking in section 1731(d) concerning limitations on recovery, and the specific proscription of stacking in the MVFRL when the legislature intends stacking to be precluded, I conclude that the legislature intended to permit the stacking of UM/ UIM coverage where multiple vehicles are insured and there is a violation of section 1731(c.l). Therefore, Mr. Robson is entitled to stacked UIM coverage for the remaining two vehicles under the policy as a result of Northwestern’s violation of section 1731(c.l) of the MVRFL.

ORDER

And now, October 1, 1999, summary judgment is entered in favor of the defendant, Thomas W. Robson, and Northwestern National Casualty Company is liable to Mr. Robson for stacked underinsured motorists’ benefits for the remaining two vehicles under the policy.


text:
    Kreig v. Lackawanna County

      C.P. of Lackawanna County,
    no. 96 CV 1276.

      George E. Mehalchick, for plaintiff.

      Hugh M. Emory, for defendant.
    June 30, 1999
   MINORA, J.,

(1) The action before this court arises from a chair lift accident that occurred at the Montage ski area on March 6,1994, and was commenced by writ of summons on March 6, 1996. The plaintiff’s complaint was filed on April 15,1996, alleging that the careless, negligent and reckless conduct of Lackawanna County Montage Mountain Ski Resort caused the plaintiff’s injuries.

(2) The defendant filed its motion for summary judgment on December 21,1998, and oral argument was heard before this court on April 29, 1999. The parties have briefed their respective positions and this matter is now ripe for disposition.

FACTS

(1) In her complaint, plaintiff has made the following averments:

—On or about March 6, 1994, while skiing, plaintiff and her sister entered a chair lift known as the Iron Horse Triple Chair.
—Plaintiff asked the lift attendant if she and her sister could ride on the chair lift without a third person.
—Plaintiff explained to the attendant that she was' uncomfortable riding the chair lift with more than one other person because both she and her sister were inexperienced skiers and she was concerned that either herself, her sister or a third person would get injured while exiting the chair lift at the top of the mountain.
—The lift attendant denied the plaintiff’s request and as a result, plaintiff, her sister and an unidentified man rode the chair lift to the top of the mountain.
—When they reached the exit point at the top of the mountain, plaintiff alleges that she attempted to help her sister off of the chair lift to ensure that she did not fall. As they were descending the chair lift, plaintiff “got tripped up” and fell at which time she was struck in the back of the head by the chair lift and lost consciousness. However, plaintiff was able to get down the mountain to the ski lodge.
—Plaintiff has allegedly suffered serious injuries as a result of the above accident.

(2) The defendant has since moved for summary judgment averring that no substantive issue of material fact exists and that it is entitled to judgment as a matter of law.

DISCUSSION

(1) The Pennsylvania Superior Court has held that the relevant elements necessary to permit summary judgment are as follows: “First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Second, the moving party must be entitled to judgment as a matter of law.” Janson v. Cozen and O’Connor, 450 Pa. Super. 415, 423, 676 A.2d 242, 246 (1996).

(2) The court must also examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Summary judgment is appropriate only in those cases that are free from doubt. Pennsylvania State University v. University Orthopedics, 706 A.2d 863, 867 (Pa. Super. 1998).

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

(4) The defendant’s motion for summary judgment presents two issues, which we shall now dispose of.

Issue I

(1) The defendant contends that facts disclosed during discovery established that there is no support for the allegations contained in the plaintiff’s complaint and that in fact she was familiar with the chair lift at issue.

(2) Specifically, the plaintiff stated in her interrogatory that:

—She had made approximately one to six ski mns prior to the accident.
—She had been skiing approximately 18 times prior to her accident.
—The accident occurred while the plaintiff was skiing on an intermediate slope.

(3) The defendant also avers that the above responses establish that the plaintiff was in fact an experienced skier and thus, the defendant was not negligent in requiring the plaintiff to ride the chair lift with two other skiers. The defendant further asserts that the factual allegation for plaintiff’s claim of negligence has failed and therefore, the plaintiff’s claim against defendant should be dismissed. We disagree.

(4) In view of the standard for summary judgment discussed above, and after careful review of the record in a light most favorable to the non-moving party, this court finds there to be genuine issues of material fact as to the plaintiff’s level of expertise as a skier.

(5) Therefore, we find that the propriety of the defendant’s actions towards the plaintiff, namely having a skier of her skill level ride the chair lift with two other skiers, raises factual issues that must be reserved for consideration by a jury.

(6) Accordingly, we conclude that the defendant’s right to summary judgment is not clear and free from doubt and thus, the defendant is not entitled to judgment as a matter of law based on the facts revealed during discovery.

(7) Therefore, the defendant’s motion for summary judgment presents two issues, which we shall now dispose of.

Issue II

(1) Under Pennsylvania law, local government agencies, such as Montage, are immune from liability for their acts of negligence unless such acts are within the specifically stated exception and, absent immunity, such acts would subject an agency to liability. 42 Pa.C.S. §8541 provides that:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” Davis v. Brennan, 698 A.2d 1382, 1383 (Pa. Commw. 1997).

(2) 42 Pa.C.S. §8542 provides for limited exceptions to governmental immunity and states in relevant part:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: ...
“(3) Real property. The care, custody or control of real property in the possession of the local agency, except that the agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency ....” Id.

(3) Based on the preceding standard the defendant has also moved for summary judgment asserting that the plaintiff’s claim against the defendant must be dismissed because the defendant is immune from liability within the meaning of the Political Subdivision Tort Claims Act discussed supra.

(4) In 1997, the Supreme Court of Pennsylvania handed down a decision in Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997) which represented “a radical departure from the governmental immunity analysis previously set forth in a long line of appellate decisions in this Commonwealth. ... it is no longer of any consequence that the injury does not result from a defect in, or condition of, the real property itself...” Hanna v. West Shore School District, 717 A.2d 626, 629 (Pa. Commw. 1998). (footnote omitted)

(5) In Grieff, a visitor to a volunteer fire company was burned when paint thinner the fire chief was using accidentally ignited. “The [Grieff] court noted that section 8542(b)(3) expressly states that liability may arise from negligence in the ‘care, custody or control of real property Martin v. City of Philadelphia, 696 A.2d 909, 912 (Pa. Commw. 1997).

(6) Thus, in view of the Pennsylvania Supreme Court’s expansion of the real property exception to governmental immunity to include negligence committed by those in the care, custody and control of governmental real property the defendant’s right to summary judgment is not clear and free from doubt and thus, the defendant is not entitled to judgment as matter of law and its motion for summary judgment is denied.

(7) This court holds that the plaintiff must be afforded the opportunity to prove her allegation that the defendant was negligent in its operation of the chair lift, a realty fixture involving the care, custody and control of real property in its possession. Davis v. Brennan, 698 A.2d 1382, 1385 (Pa. Commw. 1997). Specifically, by forcing the plaintiff to ride the lift with two other skiers when she requested riding with only one other skier because of her skill level, was the defendant negligent? If so, the fact-finder shall then determine whether the facts provided constitute a dangerous condition arising from the care, custody and control of the defendant’s real property.

(8) Thus, for these reasons and all those stated above the defendant’s motion for summary judgment is denied.

(9) The parties are to proceed in a manner consistent with this order.

ORDER

And now, to wit, June 30, 1999, after careful review, the defendant’s motion for summary judgment is denied. The parties are to proceed in a manner consistent with this order.


author: LOUGHRAN, P.J.,

text:
    Balest v. Krafick

      C.P. of Westmoreland County,
    no. 1862 of 1999.

      Merle Kramer Mermelstein and Michael Nardelli, for plaintiff.

      Peter B. Skeel, for defendants Myers.

      Gregory T Weis, for defendants Michelle and Patrick Krafick.

      Scott O. Mears Jr., for defendant David Krafick.

      Robert A. Cinpinski, for defendant Hileman.

      Joseph L. Luvara, for defendant Michael Krafick.

      Larry D. Loperfito, for defendant Duddy.
    September 3, 1999
   LOUGHRAN, P.J.,

On July 20, 1997, the decedent Brandon Leigh LeBlanc was killed in an automobile accident when the car in which he was riding as a passenger left the roadway and rolled onto its roof. The automobile was operated by defendant David Krafick.

Immediately prior to the accident the decedent had been an invited guest at the home of defendants, Ross and Debbie Myers, and their daughter, Cassie Lee Myers, who at that time was 14 years of age.

Liquor and/or malt beverages were available to the Myers’ home and were consumed by the decedent and the driver of the vehicle, defendant David Krafick, as well as other invited guests. At some time during the evening of July 19 and/or July 20, 1997, the defendants Ross and Debbie Myers left their home under the control of their 14-year-old daughter, Cassie Lee Myers. It is not known at what point in time the Myerses left their home nor is it known to plaintiff where the Myerses were going that evening or when they would be returning. At some point in time, Cassie Lee Myers decided to host a party at her house and invited guests including the defendant David Krafick and the decedent. The complaint alleges alcohol was made available by the Myers family to the invited guests. It is not known whether the party began before Mr. and Mrs. Myers left their home or sometime afterward. There was no adult supervision provided by the Myers parents and they left their home under the control of a 14-year-old who had alcoholic beverages readily available to her and to her guests.

Preliminary objections have been filed by various defendants. George W. Duddy t/d/b/a Duddy’s Pizza Parlor’s preliminary objections contend that plaintiff has not shown proximate cause of plaintiff’s harm merely by asserting violation of the Dram Shop Act of Pennsylvania, 47 PS. §4-493, in supplying alcohol to a minor nor that intoxication resulted from consuming the alcohol.

Michael Krafick has filed preliminary objections contending that Count II, paragraph 23 of the complaint should be stricken as it pleads loss of consortium by parents for injury to a minor child which is not recognized in Pennsylvania. David Krafick filed identical preliminary objections as those filed by Michael Krafick. The same preliminary objections were also filed by Michelle and Patrick Krafick. These objections will be referred to as the Krafick objections.

The parents Ross and Debbie Myers seek dismissal as they contend the complaint is based upon vicarious liability as a result of consumption of alcohol in their home when they are not present, which they contend is not recognizable in Pennsylvania and Cassie Lee Myers seeks dismissal as Pennsylvania recognizes no duty by a minor to another minor concerning the furnishing or consumption of alcohol. Additionally, supplemental objections were filed that are identical to the Krafick objections.

In ruling on preliminary objections, the court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deducted therefrom. Further, all doubts should be resolved against dismissal of the complaint. Stone & Edwards Insurance v. Department of Insurance, 151 Pa. Commw. 266, 616 A.2d 1060 (1992). The court shall sustain preliminary objections and dismiss the complaint only in cases that are clear and free from doubt that the law will not permit recovery. Capital City Lodge No. 12, Fraternal Order of Police v. City of Harrisburg, 138 Pa. Commw. 475, 588 A.2d 584 (1991).

As to the objections of George W. Duddy t/d/b/a Duddy’s Pizza Parlor, paragraphs 68 and 70 provide sufficient allegations concerning the liquor purchase, by whom it was purchased and allegations of proximate cause to overcome these objections. Accordingly, the preliminary objections will be denied.

The Krafick objections and the supplemental Myers objections must be sustained.

In Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), the Pennsylvania Supreme Court ruled that claims for loss of consortium were limited to spouses and did not extend to the loss of a minor child’s consortium. This rule has remained undisturbed and, consequently, is still prevailing law in Pennsylvania. See e.g., Schroeder v. Ear, Nose and Throat Associates, 383 Pa. Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989); Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994).

Since Pennsylvania law clearly prohibits recovery for the loss of filial consortium, Count II, paragraph 23, of the plaintiff’s complaint is legally insufficient and defendants’ preliminary objections in the nature of a demurrer must be sustained and the paragraph will be stricken.

As to the objections of Cassie Lee Myers, while it is true that the case of Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994), expressly holds that a minor does not owe a duty to another minor concerning the furnishing or consumption of alcohol, paragraph 49 of plaintiff’s complaint sets forth 18 subparagraphs which contain other allegations of negligent conduct of Cassie Lee Myers that create questions of fact, at this time, that prevent granting of preliminary objections. Accordingly, the preliminary objections to dismiss the complaint as to Cassie Lee Myers will be denied.

The remaining objections of Ross Myers and Debbie Myers will also be denied. It is true that pursuant to Pennsylvania law, social host liability for furnishing alcohol to minors cannot be imposed upon defendants when they were not at the premises and/or did not provide substantial assistance in the furnishing of alcohol. In Maxwell v. Keas, 433 Pa. Super. 70, 639 A.2d 1215 (1994), the Superior Court ruled that parents cannot be vicariously liable as social hosts for personal injuries sustained as a result of the consumption of alcohol in their home when the parents are on vacation and have no reason to anticipate the plaintiff’s presence in their house or the use of alcohol on their premises. However, plaintiff’s complaint raises questions of fact as to the knowledge of the Myers parents that, at this time, prevent the granting of preliminary objections. It may well be that these matters may be revisited after discovery upon summary judgment motions but, at this time, the preliminary objections will be denied.

In the alternative, the Myers objections request a more specific pleading in the event that the preliminary objections are denied. After a review of plaintiff’s complaint, it would appear that the plaintiff has pled sufficient allegations to permit the defendants to understand the complaint and form a reply and defense thereto. Accordingly, a more specific complaint will not be ordered.

ORDER

And now, to wit, September 3,1999, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the preliminary objections as to paragraph 23 of Count II will be sustained and that paragraph, as it relates to a claim for loss of filial consortium, is hereby stricken. All other preliminary objections of the defendants are denied.