McElwee v. Leber

57 Pa. D. & C.4th 378, 2002 Pa. Dist. & Cnty. Dec. LEXIS 136
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedJune 28, 2002
Docketno. 00-01, 795
StatusPublished

This text of 57 Pa. D. & C.4th 378 (McElwee v. Leber) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McElwee v. Leber, 57 Pa. D. & C.4th 378, 2002 Pa. Dist. & Cnty. Dec. LEXIS 136 (Pa. Super. Ct. 2002).

Opinion

KIESER, J.,

Before the court are preliminary objections of all defendants to plaintiffs’ first and second amended complaints asserting wrongful death and survival actions on behalf of their daughter’s estate and claims for damages on their own behalf attributed to negligent infliction of emotional distress. The original complaint was filed on November 15, 2000. After preliminary objections to that complaint were sustained, plaintiffs filed their first amended complaint on July 18, 2001 to which all defendants filed preliminary objections.

However, at argument, on October 24, 2001, all parties stipulated that plaintiffs could file a second amended complaint, that would be analyzed in conjunction with the first regarding the objections.1 The second amended complaint was filed on November 9, 2001.

The preliminary objections of the defendants are broken down as follows:

(1) Defendants Jeanine Sinsabaugh, Cindy Koons, Judy Kershner, Muncy Valley Hospital, Susquehanna Health System, and Susquehanna Physician Services [381]*381(defendant hospitals), filed their preliminary objection, on August 7, 2001, a motion to strike plaintiffs’ claims for negligent infliction of emotional distress set forth in Counts VIII and IX of the first amended complaint and which now will apply to the same counts of the second amended complaint.

(2) Defendants, Paul Leber M.D., Adam Edelman M.D., Emcare Inc. and West Branch Emergency Physicians filed preliminary objections on August 8, 2001, a motion to strike the claims of Kevin McElwee for negligent infliction of emotional distress, Count VIII of plaintiffs’ first amended complaint. This objection will now pertain to Count VIII of the second amended complaint and include the added defendant New Jersey/Pennsylvania EM-1 Medical Services P.C., the asserted employer of Dr. Leber and Edelman, as an objecting party. This motion did not include any objection to Count IX in which plaintiff Jo Ann McElwee asserts an emotional distress claim against defendant Edelman and other defendants.

(3) Defendant Shearer filed preliminary objections on August 9, 2001, demurring and moving to strike Kevin McElwees’ claim for negligent infliction of emotional distress set forth in Count VIII of the first amended complaint, which applies now to the same count of the second amended complaint. Defendant Shearer’s objections also raised a motion to strike the negligence allegations in paragraph 44.1 of the amended complaint for lack of specificity. This objection now applies to paragraph 45.1 of the second amended complaint.

For the following reasons, (all) defendants’ preliminary objections seeking to strike plaintiffs’ negligent in[382]*382fliction of emotional distress claim, Count VIII and IX, will be denied. Defendant Shearer’s additional objection asking this court to strike paragraph 44.1 of plaintiffs’ amended complaint will also be denied, as indicated at the time of argument.

FACTS

Plaintiffs originally filed a complaint on November 15,2000 alleging defendants’ failure to diagnose and treat a strep infection that resulted in the death of Jessica McElwee, the 10-year-old daughter of plaintiffs, Kevin and Jo Ann McElwee, on December 16, 1999. Initial preliminary objections similar to those now under consideration were filed challenging plaintiffs’ claims of negligent infliction of emotional distress and as to Dr. Shearer, two of the general negligence allegations made against him. Those prehminary objections were sustained through an opinion and order of June 29, 2001.

Plaintiffs filed their first amended complaint on July 18, 2001, repleading their claims for emotional distress and one of the negligence allegations against Dr. Shearer. While these preliminary objections were under consideration, plaintiffs, by virtue of a stipulation evidenced by a court order of October 24, 2001, filed their second amended complaint, which by the same counts assert the same negligent infliction of emotional distress claims in the same language as the first amended complaint and contains the same allegations of negligence against Dr. Shearer. (See also, text of footnote 1.)

The second amended complaint in paragraphs 2 through 31 set forth plaintiffs’ general factual allegations of the events, which led up to the death of Jessica [383]*383McElwee. Count VIII and Count IX set forth the negligent infliction of emotional distress claims. Count VIII, consisting of paragraphs 65 through 81, identifies the claim as being that of plaintiff Kevin McElwee vs. defendants Leber, Shearer, Kershner and Edelman. This count incorporates all prior paragraphs. Count IX of the complaint in paragraphs 82 through 96 contains additional factual allegations in connection with mother, Jo Ann McElwee’s negligent infliction of emotional distress claims against the three nurses, defendants Sinsabaugh, Koons and Kershner, as well as against Dr. Edelman. Count IX incorporates the preceding paragraphs of the complaint by reference. The following is a chronological sequence of events as pleaded and relevant to the preliminary objections. (Paragraph references are to the second amended complaint.)

December 12, 1999 (¶¶16-19, 32-34, 51, 66)

At about 5 p.m. on the evening of Sunday, December 12, 1999, Jessica McElwee, age 10, was taken by her father, Kevin McElwee, to the Muncy Valley Hospital emergency room due to pain in the left ankle area. Her symptoms also included, an upset stomach, and a fever of 102.7° F and tenderness of lateral malleous, as well as a moderately red throat. Defendant Nurse Koons was involved in her care. After an x-ray disclosed no evidence of a fracture or dislocation, defendant Dr. Leber diagnosed ankle sprain and viral syndrome. After approximately 2 hours, Jessica was sent home with instructions to take Tylenol or Motrin and to wear an air splint on her ankle. Kevin McElwee observed the medical care provided to Jessica on Sunday, December 12, 1999, on [384]*384the initial visit to the emergency room, specifically Dr. Leber.

December 13th (¶¶20, 48-48.12, 83)

Jessica did not improve. Jo Ann McEIwee telephoned the emergency room and asked Defendant Jeanine Sinsabaugh, a nurse, to recheck the x-ray, explaining, inter alia, that she could not understand why Jessica continued to experience so much pain. Nurse Sinsabaugh indicated that Jessica’s ankle was not broken and recommended Ibuprofen but did not instruct Jo Ann McEIwee to bring Jessica to the emergency room and did not instruct that Jessica be seen by a physician.

December 14th (¶¶21-24, 45-45.12, 67)

Mrs. McEIwee called Dr. Shearer’s office and advised a person by telephone of Jessica’s emergency room visit and that Jessica was not feeling better and had a fever and upset stomach; an appointment was made for Jessica to see defendant Dr. Shearer at 3:30 p.m. Kevin McEIwee took Jessica to Dr. Shearer’s office. Jessica was seen by defendant Dr. Shearer, who was informed of the events surrounding the December 12 emergency room visit. He took no vital signs. He removed the air splint causing Jessica intense ankle pain. The abnormal appearance of the ankle, purple with spider-like streaks, was pointed out to Dr. Shearer and a comment made to him that her ankle appeared similar to the way Kevin McElwee’s leg looked when he had blood poisoning. Dr.

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Bluebook (online)
57 Pa. D. & C.4th 378, 2002 Pa. Dist. & Cnty. Dec. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelwee-v-leber-pactcompllycomi-2002.