Gula v. Golden Hill Nursing Home, Inc.

24 Pa. D. & C.5th 300
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 17, 2011
DocketNo. 30011 of 2010, C.A.
StatusPublished

This text of 24 Pa. D. & C.5th 300 (Gula v. Golden Hill Nursing Home, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gula v. Golden Hill Nursing Home, Inc., 24 Pa. D. & C.5th 300 (Pa. Super. Ct. 2011).

Opinion

MOTTO, P.J.,

Before the court for disposition are preliminary objections filed on behalf of the defendant Golden Hill Nursing Home, Inc. (“Golden Hill”) in response to the complaint filed on behalf of plaintiff Michael David Gula, individually and as Executor of the Estate of Michael Gula. After hearing argument on defendant’s preliminary objections, considering applicable case law, and the well argued briefs filed on behalf of the respective parties, defendant’s preliminary objections are sustained in part and denied in part for the following reasons.

According to plaintiff’s complaint, plaintiff’s father, Michael Gula (henceforth “the decedent”) was a resident at Golden Hill Nursing Home from December 2006 until his death in September of 2009. On or about August of 2009, the decedent was no longer able to consume enough food to meet his nutritional requirements, and on September 8, 2009, a percutaneous endoscopic gastrostomy (PEG) tube [303]*303(a feeding tube) was inserted through his abdominal wall into his stomach. The decedent returned to Golden Hill after the procedure.

On September 11, 2009, the nursing staff at Golden Hill discovered that the decedent’s feeding tube had become dislodged and the registered nurse on duty reinserted decedent’s feeding tube. Hours after the tube was reinserted, the decedent became severely ill and was transferred to Jameson Memorial Hospital. At Jameson Hospital it was discovered that decedent’s feeding tube had been improperly inserted into decedent’s peritoneal space and not his stomach, resulting in his sudden illness. The surgeon on staff at Jameson Hospital informed plaintiff that the decedent was too weak to survive a surgery to repair the damage, and the decedent was placed on comfort measures only. After spending several days at Jameson Hospital, the decedent passed away on September 20, 2009.

On August 6, 2010, plaintiff filed a complaint that set forth two counts of general negligence. Plaintiff’s first count is for general negligence and a survival action. The second count of the complaint is for general negligence and wrongful death. Plaintiff alleges that defendant negligently failed to comply with the standard of care expected of long-term nursing facilities, and that plaintiff’s decedent’s untimely death was a direct result thereof.

On October 1, 2010, defendant filed preliminary objections, which present the following arguments:

[304]*3041. Plaintiff’s complaint incorrectly sets forth causes of action for negligence per se based on violations of state and federal regulations upon which causes of action for negligence per se cannot be made.
2. Plaintiff has pleaded several paragraphs which contain scandalous and impertinent material in violation of Pa.R.C.P. 1028(a)(2).
3. Plaintiff is improperly seeking recovery of damages for the conscious pain and suffering of his decedent under a wrongful death theory.
4. Plaintiff has failed to plead numerous allegations with sufficient specificity as required by Pa.R.C.P. 1019.

When a court is presented with preliminary objections to a complaint, the court must accept all material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). The court must further determine, as a matter of law, whether, based on the facts averred in the complaint, the plaintiff may be entitled to recovery. Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminaiy objections should only be sustained when the court determines with certainty that, upon the facts averred, the law will not permit the recovery sought by the plaintiff. R.W. v. Manzek, 585 Pa. 335, 351, [305]*305888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazare, 748 A.2d 642, 643 (Pa. Super. 2000).

I. DEMURRER TO CAUSE OF ACTION FOR NEGLIGENCE PER SE

Defendant’s first preliminary objection is raised in the form of demurrer to the negligence per se claims defendant contends are set forth in the complaint. Defendant believes that counts I and II of the complaint, actions for negligence/ survival and negligence/wrongful death respectively, are actually improperly pled claims of negligence per se. Plaintiff, in his brief in response to preliminary objections, avers that the state and federal regulations cited in counts I and II were included not for the purposes of claiming negligence per se, but instead to demonstrate what the general standard of care for a nursing facility should have been and for the purpose of bolstering his claim of general negligence.

Based on plaintiff’s own concession and a review of applicable Pennsylvania case law, the court sustains defendant’s objections to counts I and II in so far as the regulations referenced by plaintiff cannot assert claims for negligence per se. Plaintiff may, however, include the state and federal regulations in his claims of general negligence for the purpose of demonstrating the standard of care expected of long-term nursing facilities.

In Pennsylvania, negligence per se is defined as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument [306]*306or proof as to the particular surrounding circumstances.” Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa. Super., 1996), citing White by Stevens v. Southeastern Pa. Transp., 518 A.2d 810, 815 (Pa. Super. 1986). The violation of a statute or an ordinance may suffice as the basis of a cause of action for negligence per se, however, the purpose of the statute or ordinance must be to secure or protect the interests or rights of a particular group. Id.

To sustain a claim of negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries. See Wagner at 574; Kaplan v. Philadelphia Transp. Co., 171 A.2d 166 (1961); Cecile Industries Inc. v. U.S., 793 F.2d 97 (3rd cir. 1986).

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Bluebook (online)
24 Pa. D. & C.5th 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gula-v-golden-hill-nursing-home-inc-pactcompllawren-2011.