Sears v. Hershey Medical Center

10 Pa. D. & C.4th 182, 1991 Pa. Dist. & Cnty. Dec. LEXIS 315
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedMarch 21, 1991
Docketno. 3903-S-1990
StatusPublished

This text of 10 Pa. D. & C.4th 182 (Sears v. Hershey Medical Center) 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
Sears v. Hershey Medical Center, 10 Pa. D. & C.4th 182, 1991 Pa. Dist. & Cnty. Dec. LEXIS 315 (Pa. Super. Ct. 1991).

Opinion

DOWLING, J.,

In a somewhat less than artfully drawn complaint, plaintiffs seek redress for the death of their infant son in the Hershey Medical Center. The pleading, not unexpectedly, drew forth preliminary objections in the nature of demurrers and motions to strike. One is able to glean from a careful perusal of the allegations that plaintiffs’ cause of action sounds in negligence and lack of informed consent, with the former including a res ipsa averment, as well as including a [183]*183claim for both negligent and intentional infliction of emotional distress. The preliminary objections attack the lack of specificity and the absence of necessary averments to support the theories of lack of informed consent and negligent and intentional infliction of emotional distress'.

Nicholas Sears was born with certain congenital anomalies, including an imperforate anus and renal failure. For approximately 13 months, he was under the care of physicians of defendant, Hershey Medical Center. In July 1988, they advised that Nicholas’ condition was sufficiently stable and that he could be admitted to the hospital for an operative procedure to remedy his imperforate anus. During the first five days of hospitalization,-defendant’s plan apparently was to increase the child’s strength and stamina for the pending operation. It was during this time before the scheduled operation that defendant’s negligent conduct allegedly resulted in the boy’s death.

It is averred that the child was reported to have experienced frequent episodes of vomiting and that defendant’s physicians determined to do a barium swallow, which procedure called for the ingestion of barium down the esophagus and into the stomach. When Nicholas was taken back to the hospital ward, he expirated the barium which initiated a downward cycle that greatly complicated his electrolyte balance and eventually led to his death.

After the baby had been given the barium swallow and was returned to his hospital room, he was visited by his mother, Margaret Sears, who found him unconscious and not breathing. The clinical diagnosis of death was imperforate anus, bilateral renal dysplasia, and barium aspiration.

The preliminary objections as to specificity charged that paragraphs 49(a), (b), (f) and (i) and [184]*184paragraphs 52 (a)-(i) are vague and repetitious. Paragraphs 49(a), (b), (f) and (i) state that the defendant was negligent:

“(a) In failing to properly diagnose the condition of the decedent.

“(b) In failing to properly treat the condition of the decedent.

“(f) In failing to properly train those employees or agents who participated in the care of plaintiffs’ decedent.

“(i) In failing to exercise the due care required of the medical profession in maintaining and treating plaintiffs’ decedent.”

The only subparagraph which we feel is out of sync is (i). This type of averment was fully discussed in Starr v. Myers, 109 Dauphin Rep. 47 (1988). Paragraph 52 renews these allegations, draws the same objections, and thus the same ruling.

As to the more serious alleged defects, emotional distress and intentional infliction of emotional distress are subjects which we have written upon at length. See Yandrich v. Radick, 101 Dauphin Rep. 72 (1979); Ford v. Starobin, 109 Dauphin Rep. 52 (1988); Shaeffer v. Polyclinic Medical Center, 109 Dauphin Rep. 67 (1988); DeWalt v. Halter, 7 D.&C. 4th 645 (1990); and Thomas v. Banogon, 8 D.&C.4th 161 (1990). Counsel seems unaware of these opinions which, while admittedly not having the weight of appellate cases, are, we would venture to suggest, somewhat persuasive in this jurisdiction.

The thrust of the attack for the claim for negligent infliction of emotional distress is that there is lacking “a direct emotional impact, from a sensory and contemporaneous observance of the alleged negligent action” (preliminary objections, paragraph 24), and that plaintiff Mary Sears observed only the result of the tortious conduct. These are really two [185]*185interrelated problems: direct impact and observance of the negligent act.

If by direct emotional impact, defendant is raising the issue of physical manifestation of emotional distress, we refer to Thomas v. Banogon, supra, at 167-8, where at some length we examined various appellate decisions and concluded that it is not a prerequisite to discovery, opining as to its self-evident nature:

“When one considers the broad -aspects ,of this issue, it is apparent that the requirement of physical manifestation of physical injury is specious, artificial and unjust. Clearly, it is rather ridiculous to argue that when a near relative, frequently a parent, witnesses a serious injury or the death of a loved one, they do not suffer emotional distress. Why is it necessary that the person have a heart attack, scream, faint, or collapse? Isn’t crying, anguish, hysteria, shortness of breath sufficient? How could anyone experience such a powerful and dramatic event and not have emotional distress? The old argument that it is difficult to prove such a claim has been laid to rest in a number of decisions. See Amadio [v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985)], supra. Is it any more susceptible to feigning than the many soft tissue injuries, including the infamous ‘whiplash injuries’? There is also the argument made in Mazzagatti [v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986)], supra, that no duty exists because there must be a limit to foreseeability [which] seems equally fatuous. The parties’ reaction to a child’s injury is certainly as foreseeable as the injury to the child.”

The requirement that one must observe the tortious act, though intertwined with the impact rule, is even more confusing and unrealistic. Historically, the overall problem and its resolution are stated in [186]*186simplistic terms — to recover, there had to be physical contact with the negligent force. Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966). The many unjust results finally forced the Supreme Court in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), to broaden the rule to include the “zone of danger” test. Then, in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), this was further extended to the “bystander rule.” The Supreme Court’s rationale was stated:

“This new awareness of the unfairness of the zone of danger requirement in these cases is based upon the implicit acceptance that the emotional impact upon a parent witnessing the killing of a minor child is at least as great and as legitimate as the apprehension that is inspired by a plaintiff being personally within the zone of danger.”

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Mazzagatti v. Everingham by Everingham
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Niederman v. Brodsky
261 A.2d 84 (Supreme Court of Pennsylvania, 1970)
Knaub v. Gotwalt
220 A.2d 646 (Supreme Court of Pennsylvania, 1966)
Dawson v. Zayre Department Stores
499 A.2d 648 (Supreme Court of Pennsylvania, 1985)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)
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Bluebook (online)
10 Pa. D. & C.4th 182, 1991 Pa. Dist. & Cnty. Dec. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sears-v-hershey-medical-center-pactcompldauphi-1991.