Thursday, April 7, 2011

Judge Terrence Nealon of Lackawanna County Addresses Propriety of Punitive Damages Claims in Med Mal Context

On March 31, 2011, Judge Terrence R. Nealon issued an Opinion in the medical malpractice case of Lasavage v. Smith, et.al., No. 10-CV-2183 (Lacka. Co. March 31, 2011 Nealon, J.), pertaining to Preliminary Objections filed by Defendant against allegations of “reckless,” “outrageous, wanton and grossly indifferent conduct” and “reckless indifference to the rights of Plaintiff’s decedent” as contained in the Complaint. Essentially, the Defendants filed Preliminary Objections against the claim for punitive damages in the Plaintiff’s Complaint.

In his ruling, Judge Nealon overruled the Preliminary Objections filed in this regard by one of the individual Defendants but sustained the objections filed by the Defendant, Scranton Heart Institute, P.C. to the allegations of reckless indifference and any vicarious liability claim for punitive damages asserted against that Defendant.
In so ruling, Judge Nealon noted that the recovery of punitive damages in medical malpractice litigation is governed by §505 of the Medical Care Availability and Reduction of Error (MCare Act), 40 Pa. C.S. §1303.505.

Judge Nealon emphasized that the medical malpractice statute provide that a healthcare provider maybe vicariously liable for the reckless conduct of its doctors/agents only if the principal (a) knows of the wrongful conduct and (b) nevertheless allows it to occur and/or continue.

Judge Nealon stated that “[b]y virtue of this heightened standard of proof for vicarious liability “a patient must now aver and establish that the healthcare principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allow that conduct to proceed unabated.” [citations omitted] [emphasis in original].

Anyone desiring a copy of this Opinion by Judge Nealon the Lasavage case may contact me at dancummins@comcast.net.

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