Tuesday, August 2, 2011

Judge Terrence R. Nealon of Lackawanna County Addresses Propriety of Pleadings in Complaint in Medical Malpractice Case

In his decision handed down last week in the medical malpractice case of Carroll v. Singh et al. No. 2011-CV-2528 (Lacka. Co. July 25, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues raised by the Defendants in their Preliminary Objections to the Plaintiff's Complaint.

In this case, the Plaintiff underwent a laparoscopic gallbladder surgery, after which he had intense left arm pain. According to the operative report, during the surgery, “arm board restraints were noted for the right arm and…the left arm was tucked.” Following the surgery, the Plaintiff was eventually diagnosed with a brachial plexitis. This left arm condition allegedly worsened and the Plaintiff asserted in his Complaint that, due to improper positioning of his left arm during the surgery, he was caused to developed a brachial plexus injury and a related reflex sympathetic dystrophy

In this case, the Defendants objected to certain subparagraphs of the complaint as lacking sufficient specificity under Connor v. Allegheny General Hosp., 501 Pa. 306, 311 n. 3, 461 A.2d 600, 603 n. 3 (1983). The Defendants also sought to strike the Plaintiff’s allegations of “recklessness” based upon the facts alleged in the Complaint. The Defendants additionally requested the court to strike the Plaintiff’s agency allegations on the ground that Carroll had not specifically identified all individuals who purportedly acted as agents or employees of the Defendant's respective offices.

With regards to the Defendant’s Connor Preliminary Objections, the Court sustained the Objections in part and denied them in part. With regards to those allegations in the Complaint that were found to be possibly not specific enough, Judge Nealon followed the practice in the Lackawanna County Court of Common Pleas of allowing the Plaintiff to conduct discovery within a limited period of time to seek out information to make such allegations more specific by way of an amendment to the Complaint. The Court noted that if the Plaintiff was unable to make the allegations at issue more specific they would be stricken from the Complaint.

With regards to the allegations of reckless conduct asserted against the Defendants, the Court found that the factual allegations only amounted to ordinary negligence claims. Judge Nealon also noted that there were no specific requests for punitive damages noted anywhere in the Complaint. As such, the allegations of recklessness were stricken from the Complaint from the Complaint.

On the agency issue, Judge Nealon provided a thorough review of the case law on the requirements of proper pleading in this regard. He then took the same approach of allowing the Plaintiff a limited amount of time to conduct discovery on the agency issue to determine if the allegations could be made more specific in terms of the identities of the medical personnel involved. If information was discovered, the Complaint could be amended and made more specific; otherwise, such allegations would be stricken from the Complaint as not specific enough under the Rules of Civil Procedure pertaining to pleading.

Anyone desiring a copy of Judge Nealon’s opinion in the case of Carroll v. Singh, et al. may contact me at dancummins@comcast.net.

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