Unger v. Allen

3 Pa. D. & C.5th 191
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedSeptember 26, 2006
Docketno. 2006-C-386V
StatusPublished

This text of 3 Pa. D. & C.5th 191 (Unger v. Allen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Unger v. Allen, 3 Pa. D. & C.5th 191 (Pa. Super. Ct. 2006).

Opinion

BLACK, J,

This is a medical malpractice action in which the plaintiffs allege that their 15-year-old daughter, Meredith, died as a result of professional negligence on the part of the defendants in treating her for a Tylenol overdose. The individual defendants are the physicians and nurses who treated Mer[193]*193edith when she was brought to the emergency room of the defendant Lehigh Valley Hospital (LVH).

The plaintiffs have filed a second amended complaint in which they assert seven causes of action individually and on behalf Meredith’s estate. These causes of action include a claim on their own behalf for negligent and intentional infliction of emotional distress (Count I), a claim on their own behalf for civil conspiracy (Count II), claims under the Wrongful Death Act1 (Counts III and IV), claims on behalf of Meredith’s estate under the Survival Act2 (Counts V and VI), and a claim for punitive damages (Count VII).

Before the court for disposition are two separate sets of preliminary objections to the plaintiffs’ second amended complaint. The first set of objections was filed by the defendants Sabrina Logan M.D., and Kerrie Pinkney. A second set of objections was filed by the remaining defendants. For the reasons stated below, we have sustained some of the objections and overruled others.

FACTUALBACKGROUND

According to the complaint,3 on February 15, 2004, Meredith L. Unger, then 15 years of age, was received into the emergency room at LVH. At the time of her arrival Meredith was unconscious. The medical team at LVH, including the defendants Brian D. Allen R.N. and/ or B.D.A. R.N., Joseph Fassl M.D., William SotackD.O. [194]*194and Sabrina Logan M.D., evaluated Meredith’s condition and concluded that she was suffering from acetaminophen toxicity resulting from the ingestion of Tylenol. A nasogastric tube and an endotracheal tube were inserted through Meredith’s nose and mouth respectively. A medical team member ordered the administration of N-acetylcysteine (Mucomyst) to Meredith through her nasogastric tube. However, one of the defendants erroneously administered the Mucomyst into Meredith’s endotracheal tube, causing severe respiratory complications.

Meredith’s condition, deteriorated significantly after the erroneous administration of Mucomyst. Later the same day, on February 15, 2004, Meredith was transported by helicopter to Children’s Hospital of Philadelphia (CHOP) for a liver transplant. Her condition continued to deteriorate at CHOP, and she died two days later, on February 17, 2004.

The erroneous administration of Mucomyst was not noted on the LVH records until February 17, 2004, two days after Meredith had been transported to CHOP. Consequently, the medical records provided to CHOP did not disclose the Mucomyst mishap.

DISCUSSION

I. The Preliminary Objections of Defendants Sabrina Logan M.D. and Kerrie Pinkney M.D.

A. Motion To Strike (Demurrer) for Failure To State a Cause of Action for Loss of a Child’s Consortium

In their complaint the plaintiffs claim damages in their own right for loss of their child’s companionship, rela[195]*195tionship, society, comfort, guidance, solace and protection.4 However, under the law of Pennsylvania such damages are not recoverable for the death of a child. Therefore, the plaintiffs’ claim for such damages must be stricken from the complaint.

The Pennsylvania courts have recognized only two categories of damages recoverable by a parent for injury to, or death of, a minor child. The first category includes hospital, nursing, medical, funeral expenses and expenses of administration of the child’s estate. This category is specifically provided for in section 8301(c) of the Wrongful Death Act.5 The second category of damages is the pecuniary value of the loss of the child’s services during minority. This second category is recoverable as “other damages” in section 8301(c). Our appellate courts have held that the pecuniary value of the services lost must be reduced by the parent’s savings in the cost of maintaining the child. Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).

It is well-settled in Pennsylvania that when a child has been tortiously injured, the parents may not recover for their affectional or emotional loss. See Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914) (denying mother’s claim for loss of companionship resulting from serious injury to her 10-year-old daughter); Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989) (denying parents’ claim for loss of their 19-year-[196]*196old son’s services and his comfort, society and companionship, where he was rendered quadriplegic from accident).

Our appellate courts have applied the same limitation in cases involving the death of a child. See Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994) (denying parents’ wrongful death claim for loss of child’s companionship, comfort and society); Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989) (denying claim by parents of aborted fetus for loss of filial consortium). We previously reviewed the historical development of Pennsylvania law on this issue in Covert v. Cedar Fair L.P., no. 98-C-79 (Lehigh Cty., December 28, 2000) at www. lccpa.org, and concluded that parents could not recover for loss of filial consortium arising from the death of their child.

More recently, in Department of Public Welfare v. Schultz, 822 A.2d 876 (Pa. Commw. 2003), the Commonwealth Court also rejected a parental claim for loss of filial consortium. In that case a parent had brought a wrongful death and survival action against the State Hospital and Department of Public Welfare after the child/patient walked out of the hospital and was found frozen to death. The court held that a parent may not recover noneconomic damages for the loss of support, companionship and society of a deceased child. The court determined that a cause of action for loss of consortium is a claim available only to a spouse.

Accordingly, we must grant the motion to strike the allegations set forth in paragraphs 96, 97 and 98 of the [197]*197complaint for loss of the child’s companionship, relationship, society, comfort, guidance, solace or protection.

The plaintiffs’ claim for loss of their child’s services and support during her minority remains, since parents can recover under the Wrongful Death Act for loss of the pecuniary value of such services and support. Any such loss, however, must be offset by the savings to the plaintiffs in the cost of maintaining the child during minority. Therefore, as a practical matter, the plaintiffs may be unable to prove a net financial loss from the death of their child.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pedroza v. Bryant
677 P.2d 166 (Washington Supreme Court, 1984)
Wey v. Evangelical Community Hospital
833 F. Supp. 453 (M.D. Pennsylvania, 1993)
Feld v. Merriam
485 A.2d 742 (Supreme Court of Pennsylvania, 1984)
Jackson v. Tastykake, Inc.
648 A.2d 1214 (Superior Court of Pennsylvania, 1994)
Kirkbride v. Lisbon Contractors, Inc.
555 A.2d 800 (Supreme Court of Pennsylvania, 1989)
Taylor v. Albert Einstein Medical Center
754 A.2d 650 (Supreme Court of Pennsylvania, 2000)
Buczek v. First National Bank
531 A.2d 1122 (Supreme Court of Pennsylvania, 1987)
Rutherfoord v. Presbyterian-University Hospital
612 A.2d 500 (Superior Court of Pennsylvania, 1992)
Mazzagatti v. Everingham by Everingham
516 A.2d 672 (Supreme Court of Pennsylvania, 1986)
McKeeman v. Corestates Bank, N.A.
751 A.2d 655 (Superior Court of Pennsylvania, 2000)
SHV Coal, Inc. v. Continental Grain Co.
587 A.2d 702 (Supreme Court of Pennsylvania, 1991)
Hoy v. Angelone
720 A.2d 745 (Supreme Court of Pennsylvania, 1998)
Burnside v. Abbott Laboratories
505 A.2d 973 (Supreme Court of Pennsylvania, 1985)
Goldstein v. Phillip Morris, Inc.
854 A.2d 585 (Superior Court of Pennsylvania, 2004)
Department of Public Welfare v. Schultz
822 A.2d 876 (Commonwealth Court of Pennsylvania, 2003)
Schroeder v. Ear, Nose & Throat Associates of Lehigh Valley, Inc.
557 A.2d 21 (Supreme Court of Pennsylvania, 1989)
Brower v. City of Philadelphia
557 A.2d 48 (Commonwealth Court of Pennsylvania, 1989)
Jackson v. T & N VAN SERVICE
117 F. Supp. 2d 457 (E.D. Pennsylvania, 2000)
Gaydos v. Domabyl
152 A. 545 (Supreme Court of Pennsylvania, 1930)
Sonlin v. Abington Memorial Hospital
748 A.2d 213 (Superior Court of Pennsylvania, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
3 Pa. D. & C.5th 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unger-v-allen-pactcompllehigh-2006.