Millan v. Laporta

80 Pa. D. & C.4th 105
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedDecember 30, 2005
Docketno. 03-CV-4956
StatusPublished

This text of 80 Pa. D. & C.4th 105 (Millan v. Laporta) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millan v. Laporta, 80 Pa. D. & C.4th 105 (Pa. Super. Ct. 2005).

Opinion

MINORA, J.,

INTRODUCTION

This matter comes before the court by way of preliminary objections filed by the defendant, Guido LaPorta DPM, MS and LaPorta and Associates PC to the plaintiffs’ complaint. This medical malpractice action arises out of alleged post surgery complications experienced by the plaintiff, George Millan. The underlying facts as alleged are set forth below:

STATEMENT OF THE CASE

The present matter was commenced by issuance of writ of summons on November 26, 2003 and reissued December 31, 2003. Defendants filed a praecipe for a rule to file a complaint on March 21, 2004. A rule was entered on the same day.

The plaintiffs filed the complaint on April 25, 2005, containing the following claims: the essence of Count One as asserted by George and Marilyn Millan is in negligence against Guido LaPorta DPM, MS and LaPorta [107]*107and Associates PC; the essence of Count Two as asserted by George Millan against Guido LaPorta DPM, MS and Laporta and Associates PC is in medical negligence/corporate negligence; the essence of the Count Three as asserted by Marilyn Millan against both defendants is for loss of consortium.

At all times relevant to this matter defendant, Dr. Guido LaPorta DPM, MS, was a licensed professional maintaining his practice within the Commonwealth of Pennsylvania. Likewise, at all times relevant, the defendant, LaPorta and Associates PC, operated as a licensed professional corporation which at all times has been engaged in the business of providing health care services with offices in the Commonwealth of Pennsylvania. The material allegations of the complaint are as follows:

During the fall of 2001, George Millan came under the medical care of Dr. Guido LaPorta. Upon LaPorta’s recommendation, Millan underwent a total right ankle arthroplasty conducted on November 23,2001. The surgical procedure was performed to provide better stability and strength by the insertion of a titanium plate in the plaintiff’s right ankle. (See complaint, ¶¶8-9.) After the surgery, George Millan underwent follow-up visits/treatments with Dr. LaPorta and other medical personnel employed/associated with LaPorta and Associates PC. (See ¶¶13, 14 of plaintiff’s complaint.) Millan asserts that before the surgery was performed, he informed Dr. LaPorta of his annual trip to Florida he and his wife planned to take in January 2002. (Id. at ¶16.) In response, Millan alleges that LaPorta assured him that he would not have any difficulty after the surgery and, in fact, [108]*108LaPorta is alleged to have ensured Millan of greater stability and strength after the surgery. (Id. at ¶¶19, 20.)

Prior to the trip to Florida on January 17, 2002, it is alleged that George Millan felt great pain and discomfort. Upon his arrival in Florida, on January 19, 2002, Millan claims that around the surgical site he was exhibiting a terrible scab, which began to pus, alarming the plaintiffs. (Id.) Numerous phone calls were placed by the plaintiffs to LaPorta’s office on January 21, 24 and February 5, 6, 11 and 12, 2002, concerning George’s discomfort and wound care. (Id. at ¶25.) It is further alleged that the only communication Dr. LaPorta had with plaintiff George Millan took place on February 6, 2002. (Id. at ¶27; see defendant’s exhibit “A” to preliminary objections.)

Upon the plaintiff’s arrival to Florida, George Millan sought the medical care of Dr. Tinsley. The plaintiffs assert that the requests made by the Florida medical care provider, mainly Tinsley, to the defendants for George’s medical records, reports, and any other information to help in the assistance of plaintiff’s condition were ignored. It is this ignorance coupled with defendant’s failure to render appropriate medical, follow-up care that the plaintiffs report as the defendants’ negligence and carelessness that has allegedly caused George Millan’s post surgery complications. (Id. at f30(a) through 30(qq).) It is asserted that by Dr. LaPorta/defendants’ negligence, the injuries allegedly sustained by the plaintiffs include pain, limitations and restrictions, medical expenses incurred, mental anguish, deterioration of health and personal condition including shortness of lifespan, scarring and skin grafting, amongst other grievances. (See complaint, ¶30, subparagraphs (a) through (s).)

[109]*109Presently, defendants Dr. LaPorta and LaPorta and Associates PC come before the court with preliminary objections to the plaintiffs’ complaint, two in the form of demurrers and the third as a motion to strike for insufficient specificity of the pleading in paragraphs 30(p) and 30(qq). We shall discuss each objection individually below.

PRELIMINARY OBJECTIONS

The first preliminary objections we shall address are those made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer. As previously noted by the Superior Court of Pennsylvania, all material facts pleaded in the complaint, as well as all inferences reasonably deducible from those facts, are deemed admitted. Wilkinson v. The Housing Authority of the County of Cumberland, 854 A.2d 533 (Pa. Super. 2004); Theodore v. Delaware Valley School District, 575 Pa. 321, 333, 836 A.2d 76, 83 (2003). The demurrer may be granted only where, on application of this standard, it is apparent that plaintiff is not entitled to relief as a matter of law. Wilkinson, supra at 536. If doubt should arise as to whether the demurrer is proper, the demurrer should be overruled. Id. The question presented by a demurrer is whether, on the facts averred, the law states with certainty that no recovery is possible. Sclabassi v. Nationwide Mutual Fire Insurance Company, 789 A. 2d 699 (Pa. Super. 2001). Furthermore, it must be determined if the complaint sufficiently states a claim for relief under any theory of law. Mistick Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super. 2002), citing Ham v. Sulek, 422 Pa. Super. 615, 623, 620 A.2d 5, 9 (1993). The court is not to consider conclusions [110]*110of law, opinions or argumentative allegations. Sexton v. PNC Bank, 792 A.2d 602 (Pa. Super. 2002). Rather, the court’s review for preliminary objection purposes is limited to the contents of the complaint. In re Adoption of S.P.T., 783 A.2d 779 (Pa. Super. 2001). “Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003); Swisher v. Pitz, 868 A.2d 1228 (Pa. Super. 2005); Lovelace v.

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Bluebook (online)
80 Pa. D. & C.4th 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millan-v-laporta-pactcompllackaw-2005.