Clavell v. Brown

45 Pa. D. & C.5th 105
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedNovember 25, 2014
DocketNo. 5641 CV 2014
StatusPublished

This text of 45 Pa. D. & C.5th 105 (Clavell v. Brown) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clavell v. Brown, 45 Pa. D. & C.5th 105 (Pa. Super. Ct. 2014).

Opinion

ZULICK, J.,

This case comes before the court on defendants’ preliminary objections to plaintiffs’ amended complaint. The Clavells filed a complaint seeking damages for medical malpractice on September 24,2014. The plaintiffs allege in their amended complaint that Dr. Joseph Brown was negligent in his diagnosis and treatment of a diabetic ulcer on Ms. Clavell’s left foot. They also contend that Pocono Foot & Ankle Consultants, P.C. (Pocono Foot), was vicariously liable for the actions of Dr. Brown, its employee, and that Pocono Foot was directly liable to Ms. Clavell due to corporate negligence. Defendants Pocono Foot and Dr. Brown filed preliminary objections on October 2,2014, demurring to the corporate negligence allegations of Count III of plaintiffs’ amended complaint. All parties submitted briefs, and arguments were held in this court on November 3, 2014.

The facts alleged in the amended complaint may be summarized as follows. Dr. Joseph Brown treated Ms. Clavell for pain in her left foot from April through July, 2012. Dr. Brown diagnosed Ms. Clavell first with soft tissue [107]*107edema and a small avulsion fracture, and later with plantar fasciitis. Plaintiffs’ amended complaint atfl 6-9. He treated the site with anesthetic injections and pain patches. Id. at ¶¶9-10. When the left foot became so swollen that Ms. Clavell was unable to walk, she saw other physicians as her foot and ankle continued to deteriorate. Id. at ¶¶ 13-18. One physician, Dr. Seth Burkey, advised Ms. Clavell that the condition of her foot was due to unsanitary conditions at the time of injection by Dr. Brown. Id. at ¶17. After Ms. Clavell was hospitalized at Windthrop University Hospital in Long Island, New York from August 21,2012 through August 27, 2012, Ms. Clavell was referred to a wound care doctor, Dr. Charles Bannon, who diagnosed a non-healing diabetic ulcer. Id. at ¶¶19-20. Ms. Clavell received lengthy treatment thereafter. Id. at ¶¶20-22.

Plaintiffs contend that Pocono Foot was negligent in failing to:

a. ...use reasonable care in the maintenance, (sic) safe and adequate facilities and equipment;
b. ...select and retain only competent physicians;
c. ...properly observe all persons who practice medicine upon plaintiff;
d. ...formulate, adopt and enforce adequate rules and policies to ensure quality care to its patients, and specifically to plaintiff, Carmen Clavell.

Amended complaint, ¶31.

Pocono Foot has objected, arguing the amended complaint fails to state a cause of action. The standard for [108]*108demurrer is “whether, on the facts averred, the law says with certainty that no recovery is possible.” Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). “Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Id.

Here, defendants argue that plaintiffs have not stated a claim for the corporate negligence of Pocono Foot:

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a non-delegable duty1 which the hospital owes directly to a patient. Therefore an injured party does not have to rely on and establish the negligence of a third party.

Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991).

To establish a claim for corporate negligence, a plaintiff must establish three elements:

1. The [facility] acted in deviation from the standard of care;
2. The [facility] had actual or constructive notice of the [109]*109defects or procedures which created the harm; and
3. That the conduct was a substantial factor in bringing about the harm.

Rauch v. Mike-Mayer, 783 A.2d 815, 826 (Pa. Super. 2001).

Plaintiffs allege that a contaminated injection given to her by Dr. Brown was the direct cause of her exacerbated diabetic ulcer. Pocono Foot is not a hospital; however, corporate negligence has been applied to healthcare facilities other than hospitals. See Scampone v. Highland Park Care Center, LLC, 57 A.3d 582 (Pa. 2012). The question of whether corporate negligence may be imposed in this case depends upon whether Pocono Foot breached a duty to its patient. The Pennsylvania Supreme Court has held that the trial court must consider various factors in the relationship between the parties and the facts of the case to determine whether the defendant breached a duty:

Thus, the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society. See Gardner v. Consolidated Rail Corp., 524 Pa. 445, 455, 573 A.2d 1016, 1020 (1990). The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and
[110]*110(5) the overall public interest in the proposed solution. See generally Dumanski v. City of Erie, 348 Pa. 505, 507, 34 A.2d 508, 509 (1943)(relationship between the parties), Forster v. Manchester, 410 Pa. 192, 197, 189 A.2d 147, 150 (1963)(social utility), Clewell v. Pummer, 384 Pa. 515, 520, 121 A.2d 459, 463 (1956) (nature of risk), Witthoeft v. Kiskaddon, 557 Pa. 340, 353, 733 A.2d 623, 630 (1999)(foreseeability of harm), Cruet v. Certain-Teed Corp., 432 Pa. Super. 554, 558, 639 A.2d 478, 479 (1994)(relationship, nature of risk and public interest in the proposed solution). See also Bird v. W.C.W., 868 S.W.2d 767, 769 (Texas 1994)(“In determining whether to impose a duty, this court must consider the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the actor.”).

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Related

Rauch v. Mike-Mayer
783 A.2d 815 (Superior Court of Pennsylvania, 2001)
Forster v. Manchester
189 A.2d 147 (Supreme Court of Pennsylvania, 1963)
Bird v. W.C.W.
868 S.W.2d 767 (Texas Supreme Court, 1994)
Althaus Ex Rel. Althaus v. Cohen
756 A.2d 1166 (Supreme Court of Pennsylvania, 2000)
Gardner v. Consolidated Rail Corp. SEPTA
573 A.2d 1016 (Supreme Court of Pennsylvania, 1990)
Estate of Witthoeft v. Kiskaddon
733 A.2d 623 (Supreme Court of Pennsylvania, 1999)
Thompson v. Nason Hospital
591 A.2d 703 (Supreme Court of Pennsylvania, 1991)
Clewell v. Pummer
121 A.2d 459 (Supreme Court of Pennsylvania, 1956)
Cruet v. Certain-Teed Corp.
639 A.2d 478 (Superior Court of Pennsylvania, 1994)
Santiago v. Pennsylvania National Mutual Casualty Insurance
613 A.2d 1235 (Superior Court of Pennsylvania, 1992)
Dumanski v. City of Erie
34 A.2d 508 (Supreme Court of Pennsylvania, 1943)
Scampone v. Highland Park Care Center, LLC
57 A.3d 582 (Supreme Court of Pennsylvania, 2012)

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Bluebook (online)
45 Pa. D. & C.5th 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clavell-v-brown-pactcomplmonroe-2014.