Davies v. Go

21 Pa. D. & C.4th 141, 1993 Pa. Dist. & Cnty. Dec. LEXIS 54
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedFebruary 15, 1993
Docketno. 104 Civil 1989
StatusPublished

This text of 21 Pa. D. & C.4th 141 (Davies v. Go) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davies v. Go, 21 Pa. D. & C.4th 141, 1993 Pa. Dist. & Cnty. Dec. LEXIS 54 (Pa. Super. Ct. 1993).

Opinion

CASCIO, J.,

This case is before us on plaintiff’s petition for leave to file amended com[142]*142plaint, and on a motion for summary judgment filed by defendant Windber Hospital.

This action was commenced when plaintiff filed a writ of summons on February 29,1989. Plaintiff’s complaint, filed April 6, 1989, alleges that, on March 3, 1987, plaintiff fell and sustained a colles fracture of the right wrist. She was treated at Windber Hospital and was told to receive follow-up treatment at the office of Dr. William Go.

Plaintiff’s actions against the Hospital and Dr. Go are based upon negligence. She alleges that Dr. Go failed to reduce the original fracture, failed to properly affix the wrist during healing, and failed to give timely therapy. She alleges that the Hospital failed to properly diagnose the type and extent of plaintiff’s injury and failed to inform Dr. Go of all the radiological findings.

On January 11, 1988, prior to the filing of plaintiff’s complaint, the Pennsylvania Superior Court adopted a new theory of corporate liability under which a hospital may be held liable if it fails to uphold the proper standard of care it owed directly to the patient. Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988), allocatur granted, 518 Pa. 642, 542 A.2d 1371 (1988), affirmed, 527 Pa. 330, 591 A.2d 703 (1991).

Plaintiff now seeks leave to amend her complaint to add a new cause of action for corporate negligence based upon her allegation that the Hospital failed to properly oversee or supervise Dr. Go.

Plaintiff’s original complaint contained allegations of negligence against Dr. Go and the Hospital. Among the allegations against the Hospital were the following:

“(14) Defendant Windber Hospital, by and through its authorized agents or ostensible agents performing the services of the hospital, was negligent and did not [143]*143perform to the standard of a reasonable man while performing emergency room and x-ray services for the plaintiff.
“(15) The defendant Windber Hospital, by and through its authorized agents and ostensible agents, was negligent in the management and designation of plaintiff’s x-rays and the interpretation thereof; thereby not adequately visualizing or describing the extent of the plaintiff’s injury and also in failing to convey to Dr. Go the extent and kind of fracture injury necessary for diagnosis and treatment.
“(16) As a result of defendant Windber Hospital’s negligence, the plaintiff suffered pain, suffering and inconvenience; she is limited in the use of her right wrist; her susceptibility to arthritis has been increased; she has had to expend money on doctors and hospital care; she has suffered a loss of enjoyment of living and a loss of earning capacity.”

Plaintiff now alleges that the Hospital owed an additional duty to her to have her injuries examined by a competent physician capable of assessing proper treatment. By a petition filed July 22, 1992, Plaintiff now seeks to add the following relevant paragraphs to her complaint:

“(23) Defendant Windber Hospital breached its duty ... by permitting defendant Dr. William Go to evaluate and assess trauma-type emergency room injuries even though Dr. Go’s professional skill regarding such emergency room procedures ... was doubtful.
“(24) In particular Dr. Go’s competence relative to analyzing and interpreting x-ray films, and making a diagnosis based therefrom, was not of the required skill and knowledge to perform such tasks.
[144]*144“(25) As a result of defendant Windber Hospital’s negligence, the fracture of plaintiff’s right wrist was misdiagnosed and maltreated.
“(26) In addition to breaching its duty to the plaintiff to ensure quality care by having and enforcing rules pertaining to x-ray procedure, qualification and performance of doctors and technicians and their relation to emergency room treatment. The defendant hospital also breached its duty to the plaintiff by failing to formulate, adopt and enhance adequate rules and policies for the diagnosis, care and treatment of wrist fracture, nor did it properly oversee Dr. Go and others who practiced medicine by treating the plaintiff and thereby causing her injury wrist [sic] to be maltreated.
“(27) Dr. Go’s maltreatment and misdiagnosis of plaintiff’s injury may have been prevented if a qualified physician were available to review Dr. Go’s care and treatment. Defendant Hospital knew or should have known that Dr. Go’s analysis and interpretation may have been inadequately performed by his lack of x-ray skill and in adequate [sic] supervision by defendant Hospital and failing to observe proper x-ray protocol. This caused the plaintiff to endure more pain and suffering ordinarily experienced by her type of wrist fracture.”

DISCUSSION

I. Petition for Leave To File Amended Complaint

Plaintiff was injured on March 3, 1987. Plaintiff commenced her action on February 29,1989. The Thompson decision establishing a new cause of action for corporate negligence was decided by the Superior Court on January 11,1988 and affirmed by the Pennsylvania Supreme Court on May 20, 1991. The statute of limitations pro[145]*145vides that actions for negligence, including medical malpractice actions, must be commenced within two years. 42 Pa.C.S. §5524.1 Plaintiff did not file her leave to file amended complaint until July 22, 1992, more than two years after the Superior Court decided Thompson.

The issues before the court are whether the statute of limitations has expired, and, if so, whether the court should allow plaintiff to amend her complaint to include a count for corporate negligence even though the statute of limitations has expired.

We will first address plaintiff’s contention that the statute of limitations for an action for corporate negligence has not expired. Plaintiff claims that the cause of action for corporate negligence was not established until May 20, 1991, when the Supreme Court affirmed Thompson. Defendant contends that the cause of action was established January 11, 1988, when the Superior Court first adopted the theory. For the reasons below, we agree with the defendant.

This court, on November 28, 1989, first addressed the new theory of corporate negligence in Pollock v. Musser, no. 474 Civil 1985, slip op. at 12 (C.P., Somerset County, Nov. 28, 1989, Cascio, J.).

“[Holding the hospital liable for its own direct negligence] is a new form of direct liability known as ‘corporate negligence,’ Krout v. Martin, 50 D.&C.3d 472, 474, 102 York Leg. Rec. 179, 180 (1989), and was first recognized in Thompson v. Nason Hospital, supra [370 Pa. Super. 115, 535 A.2d 1177 (1988)].”

Plaintiff cites 5 Standard Pennsylvania Practice 2d §24:41 for her proposition that leave to amend a com[146]

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Bluebook (online)
21 Pa. D. & C.4th 141, 1993 Pa. Dist. & Cnty. Dec. LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davies-v-go-pactcomplsomers-1993.