Matharu v. Muir

29 A.3d 375, 2011 Pa. Super. 134, 2011 Pa. Super. LEXIS 1100
CourtSuperior Court of Pennsylvania
DecidedJune 28, 2011
StatusPublished
Cited by19 cases

This text of 29 A.3d 375 (Matharu v. Muir) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matharu v. Muir, 29 A.3d 375, 2011 Pa. Super. 134, 2011 Pa. Super. LEXIS 1100 (Pa. Ct. App. 2011).

Opinion

OPINION BY

MUSMANNO, J.:

Scott D. Muir, D.O. (“Dr. Muir”), Fiori-na Pellegrino, D.O. (“Dr. Pellegrino”), Ha-zleton Women’s Care Center (“Hazleton”) and Muir OB/GYN Associates, P.C. (“Muir Associates”) (collectively, “Defendants”) appeal from the Order denying, in part, their Motion for the entry of summary judgment against Baljinder S. Matharu (“Father”) and Jessica A. Matharu (“Mother”), individually and as Administrators of the Estate of Milan Singh Matharu [378]*378(“Child”) (collectively, “Plaintiffs”). We affirm.

The trial court set forth the undisputed facts underlying the instant appeal as follows:

1. The instant wrongful death/survival action was instituted by summons on April 25, 2007, followed by a Complaint on June 26, 2007.
2. An Answer and New Matter was filed by Defendants on October 4, 2007.
3. [Mother] gave birth to her first child [“S.M.”] on February 21,1997.
4. [Mother’s] pre-natal care for [S.M.] was rendered by a physician other than Defendants herein.
5. Blood work during the 1997 pregnancy indicated [that Mother] was Rh-negative.

6. [Father] was determined in 1997 to be Rh-positive.

7. After [the] delivery of [S.M., Mother] was administered RhoGAM (Rh im-munoglobulin).

8. In 1997, [Mother] was aware that she was Rh-negative and that she had been administered RhoGAM.

9. In 1998, [Mother] became pregnant again, and in May, 1998, came under the care of Defendants, Dr. Muir and Dr. Pellegrino, at Defendant Hazleton Women’s Care Center.

10. [Mother] was again found to be Rh-negative during this second pregnancy.

11. [Mother] was not given an injection of RhoGAM at 28 weeks [of] gestation on the second pregnancy.

12. [Mother] delivered her second child [“S.”] on October 3,1998.

13. [Mother] did not receive an injection of RhoGAM within 72 hours of this birth.

14. Following the birth of [S.] and while [Mother] was still in the hospital, [Dr.] Muir told both [Mother and Father] that no RhoGAM had been administered to [Mother] and that she had become sensitized during the third trimester.

15. The discharge summary evidences a conversation between [Dr.] Muir and [Mother and Father] regarding the ramifications of Rh sensitization, including the effects on an unborn fetus. It further indicates that [Mother and Father] stated [that] they desired no more children. The patient was advised to seek early prenatal care at the next pregnán-cy. [FN]

16. Within a few weeks of [S.’s] birth, [Mother and Father] contacted a law firm[,] which sought to obtain a copy of [Dr.] Muir’s medical chart on [Mother].

17. After consultation with a lawyer, and within two (2) years of [S.’s] birth, [Mother and Father] did not file a lawsuit regarding the failure to administer RhoGAM.

18. In 2000, [Mother] became pregnant again, but underwent an abortion at Allentown Women’s Center. [None of the [379]*379Defendants] provided any care or treatment for this pregnancy.

19. [Mother] did not receive RhoGAM at the time of her 2000 abortion.

20. In late 2001, [Mother] became pregnant a fourth time. She telephoned [Dr.] Muir and had a discussion with him regarding this pregnancy and her sensitization.

21. [Mother] returned to the care of Defendants on March 12, 200[2], at 14.3 weeks [of] gestation. [Dr.] Muir sent [Mother] to Lehigh Valley Hospital for consultation in the Department of Maternal Fetal Medicine.

22. On August 6, 2002, [Mother] gave birth to her fourth child, [M.], at Lehigh Valley Hospital.

23. The last chart note of any contact between [Mother] and Defendants’ office is a call by [Mother] on July 29, 2002.

24. [Mother’s] last office visit with Defendants was [on] July 8, 2002.

25. [Mother] never presented for a follow-up [postpartum] visit with Defendants after the birth of [M.]

26. Subsequent to this birth, [Dr.] Muir sent [Mother] a letter requesting her to schedule a post-partum appointment.

27. In and around March, 2003, after receiving no response, [Dr.] Muir sent a certified letter to [Mother] dismissing her from his practice. The letter was signed for and received by [Mother] on March 15, 2003.

28. As of March 15, 2003, [Mother] was no longer a patient of Defendants and no longer had a doctor-patient relationship with Defendants.

29. [Mother] suffered a miscarriage early in her fifth pregnancy on January 23, 2005.

30. In mid[-]2005, [Mother] became pregnant for a sixth time. 31. [Mother] did not consult [Defendants], and [Defendants] provided no care or treatment during this sixth pregnancy. No doctor-patient relationship was formed between [Mother] and Defendants during this sixth pregnancy.

32. For this sixth pregnancy in 2005, [Mother] received her pre-natal care from Dr. Vourtsin and the Department of Maternal Fetal Medicine at Lehigh Valley Hospital.

33. During this sixth pregnancy, [Mother] knew she was iso-immunized and that there were certain risks associated with pregnancy.

34. [Mother] became aware that she had become iso-immunized in October, 1998, after the birth of her second child, [SJ

35. [Mother’s] sixth pregnancy proceeded without complication until November, 2005, or 26 weeks [of] gestation.

36. In late October, 2005, fetal blood work showed anemia, so [Mother] underwent intraperitoneal transfusion.

37. On November 10, 2005, [Mother] returned to Lehigh Valley Hospital. While undergoing a PUBS procedure with intrauterine transfusion (percutaneous umbilical blood sampling), [Child’s] heart rate became non-reassuring and abruption was suspected.

38. An emergency C-section was performed on November 10, 2005. [Child] was born and then transferred to Children’s Hospital of Philadelphia, where he died two days later.

In addition to the foregoing chronological undisputed facts, it is relevant to point out that the parties do agree that the negligence[,] which forms the basis for this lawsuit[,] occurred in 1998[,] when [Dr.] Muir failed to administer RhoGAM during [Mother’s second preg[380]*380nancy at 28 weeks or after the delivery of this second child. [FN] ...

Trial Court Opinion, 2/20/09, at 1-5 (footnotes in original).

At the close of discovery, Plaintiffs and Defendants filed their respective Motions for summary judgment. The trial court ultimately granted in part and denied in part Defendants’ Motion for summary judgment. Relevant to this appeal, the trial court denied Defendants’ Motion for summary judgment against Plaintiffs as to their wrongful death and survival actions.1 Trial Court Order, 3/2/09, at ¶ 1. In its Order, the trial court further stated that its decision involved a controlling question of law as to which there is a substantial ground for difference of opinion “and that an immediate appeal from the Order may materially advance the ultimate termination of the matter.” Id. at ¶ 4.

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Bluebook (online)
29 A.3d 375, 2011 Pa. Super. 134, 2011 Pa. Super. LEXIS 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matharu-v-muir-pasuperct-2011.