MacLeod v. Russo

13 Pa. D. & C.5th 110
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedMay 6, 2010
Docketno. 11689 CIVIL 2008
StatusPublished

This text of 13 Pa. D. & C.5th 110 (MacLeod v. Russo) 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
MacLeod v. Russo, 13 Pa. D. & C.5th 110 (Pa. Super. Ct. 2010).

Opinion

MILLER, J.,

On December 8, 20061 defendant David P. Russo M.D. performed a laparoscopic cholecystectomy on plaintiff’s decedent Douglas MacLeod at Pocono Medical Center. He was assisted by defendant Mukesh J. Mehta M.D. After the procedure, [113]*113defendant Russo immediately left for his vacation home in Cape May, New Jersey without securing surgical coverage in his place. Complications arose the next day. Plaintiff alleges this resulted from defendant Russo failing to properly identify and clip decedent’s cystic artery during surgery. Decedent was transferred to Lehigh Valley Hospital where he was treated for cystic artery bleeding, and then discharged to Good Shepherd Specialty Hospital where he remained until March 23,2007. Over the course of the next 11 months decedent had numerous hospitalizations. He died on March 3,2008. At a subsequent date, defendant Russo admitted to a drug and alcohol addiction. Decedent’s wife filed this medical negligence action on August 18, 2009.

All defendants have filed preliminary objections which were argued April 5, 2010. We will discuss each separately in this opinion.

I. PRELIMINARY OBJECTIONS OF DAVID P. RUSSO M.D. AND MONROE COUNTY SURGICAL ASSOCIATES

Defendant Russo and defendant Monroe County Surgical Associates P.C. both raise preliminary objections to the complaint on five grounds: (1) a motion to strike scandalous and impertinent matters; (2) a demurrer to plaintiff’s punitive damage claims; (3) insufficient specificity; (4) a demurrer to plaintiff’s Survival Act claim and; (5) a demurrer to plaintiff’s Wrongful Death Act claims.

Defendants first argue the allegations referencing addictions and conspiratorial methods of procuring pre[114]*114scription drugs in paragraphs 25-32, 42, 58, 59, 64(n), 64(p), 64(q), 91-93, 99, 100(d) and 104 of plaintiff’s amended complaint must be stricken for containing impertinent or scandalous material. Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file preliminary objections to strike impertinent or scandalous matter included in a pleading. Our Pennsylvania Commonwealth Court held in Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998) that scandalous and impertinent allegations are immaterial and inappropriate to the cause of action.

Plaintiff argues that both defendant Russo’s drug use and the steps taken to procure drugs are relevant to the cause of action. Plaintiff believes these allegations are necessary in establishing a breach of standard of care and reckless behavior. However, we agree that many of plaintiff’s allegations referencing defendant Russo’s drug addiction are immaterial to establishing a cause of action or claims for punitive damages. These allegations do not serve as established facts in the cause of action but merely add unnecessary emotional weight. Plaintiff’s detailing the conspiratorial means defendant Russo employed to obtain prescription drugs are also not relevant to the underlying medical malpractice cause of action. Further, several references to defendant Russo’s drug addiction allege events outside of decedent’s treatment dates. These allegations are also not relevant in establishing defendant Russo’s behavior for the purpose of a punitive damages request. Rather they serve only to support defendant Russo’s admitted drug abuse and addiction. Thus, they are immaterial to plaintiff’s cause of action.

[115]*115Conversely, factual allegations of defendant Russo’s drug addiction establishing impairment and state of mind at the time of decedent’s treatment are relevant to plaintiff’s cause of action and claims for punitive damages. Factual allegations related to knowledge of defendant Russo’s employers are also relevant to plaintiff’s cause of action. We are not prepared to find all allegations immaterial at this early stage. As such we find paragraphs 25, 26, 27, 31, 32, 42, 58, 64(p), 92, and 93 to contain impertinent and scandalous material and will sustain defendants’ preliminary objection to strike these paragraphs.

Next, moving defendants raise a preliminary objection in the form of a demurrer to plaintiff’s claims for punitive damages. Preliminary objections in the nature of a demurrer assert that a complaint fails to state a claim upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). A demurrer does not admit conclusions of law or unjustified inferences. Id. Preliminary objections may only be granted in cases that are free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001).

Our Pennsylvania Legislature codified punitive damages as to healthcare providers in Pennsylvania’s Medical Care Availability and Reduction of Error Act (MCARE). 40 P.S. §1303.505(a). Punitive damages may be awarded where harm resulting from the healthcare [116]*116provider’s conduct is willful or wanton conduct or reckless indifference to the rights of others. Id. Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987). Under MCARE, even gross negligence is not insufficient to support punitive damages against a healthcare provider. 40 P.S. §1303.505(b). Arequest for punitive damages does not constitute a cause of action but is merely incidental to a cause of action. Nix v. Temple University of Commonwealth System of Higher Education, 408 Pa. Super. 369, 380, 596 A.2d 1132, 1138 (1991). Our sister court held in Doe v. Curran, 45 D.& C.4th 544, 552-54 (Lacka. Cty. 2000), that the requisite mindset to support punitive damages may be found through the commission of a similar act at a different time. MCARE also addresses a healthcare provider’s vicarious liability in pertinent part:

“Punitive damages shall not be awarded against a healthcare provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. §1303.505(c).

Instantly, plaintiff bases a request for punitive damages on defendant Russo’s admitted addiction to prescription drugs, the steps he took to procure drugs and defendant Russo’s failure to obtain surgical coverage to support the punitive damage claim. After striking the impertinent [117]*117paragraphs and accepting as true plaintiff’s well-pled facts, we find that plaintiff does allege impairment at the time of the conduct giving rise to this cause of action.

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Bluebook (online)
13 Pa. D. & C.5th 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macleod-v-russo-pactcomplmonroe-2010.