Irvin v. Fierer

49 Pa. D. & C.4th 225, 2000 Pa. Dist. & Cnty. Dec. LEXIS 123
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedSeptember 13, 2000
Docketno. 413 S 2000
StatusPublished

This text of 49 Pa. D. & C.4th 225 (Irvin v. Fierer) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Irvin v. Fierer, 49 Pa. D. & C.4th 225, 2000 Pa. Dist. & Cnty. Dec. LEXIS 123 (Pa. Super. Ct. 2000).

Opinion

LEWIS, J.,

In this action, plaintiff seeks to hold liable a physician practice under the corporate negligence doctrine and requests that punitive damages be awarded. The facts of this case indicate that decedent Marie Brown had a medical history which included chronic asthma and chronic obstructive pulmonary disease. Plaintiff claims that Ms. Brown had been a patient of defendant Kandra Fierer & Kuskin Associates Ltd. for the rest of her health care needs. KFKA is an incorporated medical organization with an office in Harrisburg.

In the spring of 1999, when Ms. Brown had developed a continuous cough and after she had been evaluated by a specialist, Dr. Fierer of KFKA recommended that she undergo a colonoscopy and an esophagogastroduodenoscope (EGD) in order to assess her digestive tract. Dr. Fierer is a physician licensed to, and engaged in, the practice of internal and family medicine at KFKA. Plaintiff avers that at the time Ms. Brown was evaluated for her persistent cough at KFKA, she was at an increased risk of respiratory distress. However, plaintiff claims that defendants decided to continue with the scheduled procedures.

[227]*227Ms. Brown was taken to KFKA for the EGD and colonoscopy on the morning of May 14, 1999. Plaintiff avers that the drug Versed was used as the anesthetic for the performance of the aforementioned procedures. Plaintiff maintains that Versed carries a high risk of pulmonary arrest in an already compromised patient. Plaintiff advises that this type of anesthesia has a strong central nervous system depressant effect which, if not properly monitored, can cause respiratory depression and ultimately respiratory failure. Plaintiff further asserts that during the procedures, the appropriate equipment and personnel to monitor Ms. Brown’s heart and respiration was not employed because the medical records indicate that no one other than Dr. Fierer was present to oversee her vital signs.

Plaintiff claims that Dr. Fierer performed the EGD first and the colonoscopy second. Plaintiff additionally claims that it was not discovered until the conclusion of the procedures that Ms. Brown ceased breathing and had been without oxygen for a period of time. Plaintiff maintains that when it was first discovered that Ms. Brown was not breathing, she had neither a pulse nor a heartbeat. Attempts at resuscitation were initiated as Dr. Fierer administered CPR and an ambulance was summoned. Ms. Brown was transported to Community General Osteopathic Hospital where she was pronounced dead at 12:10 p.m. on May 14, 1999.

Plaintiff initiated this suit on behalf of the estate of Marie Brown against Dr. Fierer and against KFKA by filing a complaint on February 2, 2000. Thereafter, defendants filed preliminary objections as to plaintiff’s claim for punitive damages and as to plaintiff’s allega[228]*228tions of corporate negligence against KFKA. Argument was held before a panel of this court on June 15, 2000. For the reasons set forth below, defendants’ preliminary objections are denied.

We note that although defendants’ preliminary objections have been characterized as motions to strike, their objections are actually in the nature of a demurrer. The standard for the disposition of a demurrer is well-settled.

“Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted .... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected .. ..” Willet v. Pa. Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997).

CORPORATE NEGLIGENCE

Recently, another panel of this court addressed the issue of corporate negligence in the case of Dowhouer v. Judson, 45 D.&C.4th 172 (Dauphin Cty. 2000). In that opinion filed on March 10,2000, the panel analyzed the doctrine of corporate negligence and its application in this Commonwealth, beginning with the standard as set forth in the case of Thompson v. Nason Hospital.

“In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Pennsylvania Supreme Court, in establishing the doctrine of corporate negligence as it relates to hospital liability, identified four factors that a [229]*229plaintiff must establish to show that a hospital breached its duty. The factors are: (1) the hospital’s duty to use reasonable cue in the maintenance of safe and adequate facilities and equipment; (2) the hospital’s duty to select and retain only competent physicians; (3) the hospital’s duty to oversee all persons who practice medicine within its walls as to patient care; and (4) the hospital’s duty to formally adopt and enforce adequate rules and policies to ensure quality care for its patients. Id. at 339-40, 591 A.2d at 707. The Thompson court held that ‘the corporate hospital’s role in the total health care of its patients’ required that hospitals be held to a standard of care separate and apart from the standard of care imposed upon physicians. Id. at 341, 591 A.2d at 708. The Thompson court also noted that for a hospital to be directly liable to a patient, the hospital must have actual or constructive knowledge of the defect or procedure that caused the harm. Id.” Dowhouer, 45 D.&C.4th at 178.

This court in Dowhouer refused to extend the corporate negligence doctrine to physician practices. We based our analysis on several cases, beginning with Remshifski v. Kraus, 1845 Civil 1992, Monroe County, September 8,1995, the only published common pleas opinion prior to Dowhouer that tackled this issue. Remshifski, on a summary judgment motion, applied Thompson and declined to allow corporate negligence liability against entities other than hospitals.

We then reviewed the cases of Milan v. American Vision Center, 34 F. Supp.2d 279 (E.D. Pa. 1998), (holding that corporate negligence should not be extended to optometrists’ offices), and Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998), (finding that corporate liability [230]*230duties should “be applied to an HMO when that HMO is performing the same or similar functions as a hospital.”). The opinions in both of these cases examined Thompson and discussed the entity’s role in the total health care of its patients. Applying the rationales set forth in each of the above cases, this court in Dowhouer held that the plaintiff’s claims did not impose a corporate negligence-type duty on the defendant physician practice, an entity devoted exclusively to the practice of cardiovascular surgery. Because this court did not find that the defendants’ role in that action was to deliver total health care to its patients as intended under Thompson, we declined to extend the doctrine of corporate negligence to that kind of specialty practice. Dowhouer, 45 D.&C.4th at 180-81.

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Related

Feld v. Merriam
485 A.2d 742 (Supreme Court of Pennsylvania, 1984)
Shannon v. McNulty
718 A.2d 828 (Superior Court of Pennsylvania, 1998)
McDaniel v. Merck, Sharp & Dohme
533 A.2d 436 (Supreme Court of Pennsylvania, 1987)
Thompson v. Nason Hospital
591 A.2d 703 (Supreme Court of Pennsylvania, 1991)
Martin v. Johns-Manville Corp.
494 A.2d 1088 (Supreme Court of Pennsylvania, 1985)
Willet v. Pennsylvania Medical Catastrophe Loss Fund
702 A.2d 850 (Supreme Court of Pennsylvania, 1997)
Milan v. American Vision Center
34 F. Supp. 2d 279 (E.D. Pennsylvania, 1998)

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Bluebook (online)
49 Pa. D. & C.4th 225, 2000 Pa. Dist. & Cnty. Dec. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irvin-v-fierer-pactcompldauphi-2000.