Thach v. Abington Memorial Hospital

40 Pa. D. & C.5th 438
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedSeptember 9, 2014
DocketNo. 0609
StatusPublished

This text of 40 Pa. D. & C.5th 438 (Thach v. Abington Memorial Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thach v. Abington Memorial Hospital, 40 Pa. D. & C.5th 438 (Pa. Super. Ct. 2014).

Opinion

MASSIAH-JACKSON, J.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

In the Spring of 2012, Ms. Lyah H. Thach, a resident of Philadelphia, was 33 years old and 28 weeks pregnant. Amended complaint, paragraphs 1 and8. OnMarch8,2012, Ms. Thach was admitted to Abington Memorial Hospital for several days where she underwent testing, diagnostic imaging, and various treatments. Upon discharge on March 14, 2012, Abington Memorial Hospital provided weekly home healthcare visits from March 15,2012 through April 17, 2012, in response to the hospital’s diagnosis of “strep viridans infective endocarditis with embolic events and CVA secondary to a history of rheumatoid fever, positive mitral valve thickening, and pregnancy.” Amended complaint, paragraphs 9 through 17.

On April 17, 2012, Ms. Thach was discharged from home healthcare. On April 18, 2012, Ms. Thach presented to Abington Memorial Hospital with worsening weakness and numbness. She became [441]*441unconscious and began seizing. Amended complaint, paragraphs 12 and 24. Ms. Thach has suffered at least two strokes, permanent and irreversible brain damage, Locked-In Syndrome (eye movement only), is fed through a tube, and requires round-the-clock assistance in all activities of daily living. Amended complaint, paragraphs 12, 24 and 26.

As a result of serious and permanent injuries sustained, plaintiff-Thach initiated this medical malpractice civil action against defendant-Abington Memorial Hospital in March, 2014. On April 10, 2014, the attorney for plaintiff-Thach filed a certificate of merit pursuant to Rule 1042.3(a) and Rule 1042.10 of the Pennsylvania Rules of Civil Procedure. One week later a motion and memorandum to strike the certificate of merit was filed by counsel on behalf of Abington Memorial Hospital (Control no. 14042055). Responsive answers and memorandum in opposition to the motion to strike were filed by plaintiff-Thach. On July 10, 2014, this court denied the defendant’s motion to strike the plaintiff’s certificate of merit and stated in part:

“The certificate of merit filed by the plaintiff on April 10, 2014 is sufficient to support claims of vicarious liability against the defendant.”

On August 11, 2014, the defendant-Hospital filed a motion and memorandum, seeking appellate certification that this court’s July 10,2014 order involves 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. 42 Pa. C.S. §702; Rule 1311 of [442]*442the Pennsylvania Rules of Appellate Procedure. (Control no. 14081092).

Following the filing of plaintiff’s response in opposition, this court coordinated a telephone conference with counsel on September 4, 2014, seeking, inter alia, clarification of paragraphs 12 through 15 of defendant’s motion for appellate certification and pages 4-5 of defendant’s memorandum. Counsel for defendant-Hospital did promptly provide written clarification by identifying the medical professionals for whom defendant asserts separate certificates of merit should be filed where as here, the plaintiff based her claim on the vicarious liability of Abington Memorial Hospital. Defendant’s letter dated September 4, 2014, states in pertinent part:

“Defendants [sic] request certificates of merit for all identified agents listed in the amended complaint: (1) Victoria Myers, M.D.-OB/GYN; (2) Brad Klein, M.D.-Neurology; (3) Richard Borge, M.D.Cardiology; (4) Neely Nelson, M.D.-OB/GYN (Resident at the time); (5) Karan Hadley, RN-Home Health Nurse; (6) Bethany Perry, M.D.-OB/GYN; (7) Richela Stoddard, RN-Home Health Nurse; and (8) Frederick Bartlett, M.D.-OB/GYN. If plaintiff is critical of the care provided by Rochelle Krimker, OT and Mary Ann Pritchett, PT, two individuals that plaintiff deposed during venue discovery to secure venue in Philadelphia, certificates of merit should be filed supporting the allegations alleged against Abington Memorial Hospital for their actions. Defendants also request certificates of merit covering [443]*443the medical specialties of any unidentified agents the plaintiff deems defendant vicariously liable and for whom the plaintiff’s expert has identified as providing negligent care during Lyah Thach’s admission to Abington Memorial Hospital on March 8, 2012, following her discharge at her home on Van Kirk Street and during her Abington Memorial Hospital admission beginning April 18, 2012. Defendant can provide samples regarding the certificates of merit for the unidentified agents upon request of the court.”

After careful consideration of the issues raised by the parties, the motion of defendant-Hospital to certify for appeal the interlocutory order dated July 10, 2014 is denied.

II. LEGAL DISCUSSION

A. Defendant-Hospital Has Chosen the Wrong Forum to Seek Changes To the Pennsylvania Rules of Civil Procedure

Rule 1042.3(a)(2) of the Pennsylvania Rules of Civil Procedure was adopted by the Supreme Court of Pennsylvania on January 27, 2003. The form of a certificate of merit is set forth in Rule 1042.10, which was initially adopted by the Supreme Court of Pennsylvania on January 27, 2003. The words are clear and without ambiguity.

If this defendant-Hospital or its counsel propose new forms or new wording or other amendments, the proper forum for such recommendations is the Supreme Court’s Civil Procedural Rules Committee. Instead, defendant sets forth in its memorandum dated April [444]*44417, 2014, pages 16 through 20, the proposed language for a certificate of merit which does not appear in the Pennsylvania Rules of Civil Procedure and has not been endorsed or adopted by the Supreme Court of Pennsylvania. The Hospital’s bald suggestions are not a proper legal basis to support its motion to strike plaintiff-Thach’s certificate of merit.

It is not the role of this trial court to second-guess what justice Thomas Saylor termed a “subtext” in Pennsylvania’s medical malpractice litigation practice. In his dissenting opinion in Freed v. Geisinger Medical Center, 5 A.3d 212 (Pa. 2010), Justice Saylor commented on the relationship of the Supreme Court to the legislature and the certificate of merit requirement. 5 A.3d at 225-228. Clearly, the Supreme Court’s Civil Procedural Rules Committee provided the language and template for Rule 1042.10 with a wisdom which far out-weigh’s this trial court or the defendant-Hospital.

B. This Trial Court May Not Usurp the Policy Concerns Addressed By the Pennsylvania Supreme Court Since 2003.

Former chief justice Ralph J. Cappy and current chief justice Ronald D. Castille have consistently expressed the expectation that pre-certification of medical malpractice litigation will ensure that the plaintiff in a medical malpractice action has met certain standards to establish a cause of action against the entity against whom a claim is asserted. (Prior to 2003, there were no standards) See, court exhibit “A” collectively attached hereto. In this case it is only the named defendant, Abington Memorial Hospital, which is the entity against whom a claim has been [445]*445asserted.

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Related

Laudenberger v. Port Auth. of Allegheny
436 A.2d 147 (Supreme Court of Pennsylvania, 1981)
Womer v. Hilliker
908 A.2d 269 (Supreme Court of Pennsylvania, 2006)
Freed v. Geisinger Medical Center
5 A.3d 212 (Supreme Court of Pennsylvania, 2010)

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Bluebook (online)
40 Pa. D. & C.5th 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thach-v-abington-memorial-hospital-pactcomplphilad-2014.