Court Addresses Medical Charting Issues in a Medical Malpractice Case

In the case of Creech v. Piotr F. Zembrzuski, No. 2024-CV-9004 (C.P. Lacka. Co. July 21, 2025, Nealon, J.), the court overruled Preliminary Objections filed against a medical malpractice Complaint in a wrongful death litigation.

According to the Opinion, a mother commenced this lawsuit against various healthcare providers for treating her daughter. The mother alleges that the healthcare providers failed to timely and properly diagnose the Plaintiff’s decedent’s deteriorating medical conditions.

According to the Opinion, the Plaintiff-mother asserted, among other claims, that the healthcare providers failed to timely and appropriate document the daughter’s findings and that their violation of the medical records documentation obligation prevented the mother from identifying in the Complaint each hospital agent who allegedly negligently treated the daughter.

The hospital Defendants filed a demurrer to the medical record charting allegations on the ground that the mother did not cite any statute, regulation, or other law that was allegedly violated or that supported the imposition of civil liability for untimely or inadequate medical entries.

The medical providers also sought to dismiss one hospital Defendant on the basis that it was merely a holding company which cannot be liable unless the mother pierced the corporate veil.

The court overruled the Preliminary Objections.

Judge Nealon noted that, under Pennsylvania law, physicians are obligated to make timely entries in a patient’s medical record that accurately, legibly, and completely reflect specific information regarding patient evaluation and treatment. The court noted that those charting requirements have been recognized as establishing standards of care and conduct for physician.

Accordingly, the court found that the mother’s allegations related to the hospital Defendants’ alleged violations of those medical records documentation standards were relevant to the Plaintiff’s negligent claims.

With regard to the claim against the alleged holding company, the court ruled that the mother had specifically alleged that the alleged holding company owned and operated the subject hospitals, employed the physicians and other professionals who treated the decedent, and provided medical care and services to the decedent.

Under the standard of review that requires the court to accept the Plaintiff’s factual allegations as true, and which prohibits the hospital Defendants from presenting a speaking demurrer, the court held that the Defendant’s Preliminary Objections should be overruled.

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Allegations of Recklessness Continue to Be Upheld

In the case of Celli v. Endless Mountain Extended Care, LLC, No. 2023-CV-5141 (C.P. Lacka. Co. Sept. 12, 2024 Nealon, J.), the court addressed various issues regarding the pleadings in a trip and fall case.

According to the Opinion, a Lackawanna County Plaintiff was undergoing in-patient treatment at a Wyoming County facility when he fractured his ankle during recreational activities on the Plaintiff’s sports field.

The court addressed various Preliminary Objections filed by the Defendant clinic and the Defendant landowner.

With regard to one of the Preliminary Objections, the court denied the objection to the allegations of recklessness and continued to trend of cases holding that recklessness can be pled in any case where negligence is alleged.  Judge Nealon again referenced the rationale that, given that recklessness is an allegation as to a state of mind, under Pa.R.C.P. 1019 and appellate precedent reviewing the same, allegations of recklessness are permitted to be generally pled under Pa. R.C.P. 1019.  

As part of its analysis of this issue, the court pointed, in part, to the article entitled "Pleading for Clarity:  Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters" by Daniel E. Cummins, 93 Pa. B.A.Q. 32 (Jan. 2022).

The court also separately allowed the claims of punitive damages to proceed after finding that sufficient facts were pled to support that claim..

Judge Terrence R. Nealon
Lackawanna County

With regards to other issues raised, the court found that, given that the patient had charged the owner of the premises with misfeasance for personally participating in the tortious activity, the Plaintiff did not need to pierce the clinic’s corporate veil in order to sue the owner. 

Rather, the court found that the Plaintiff may instead impose the individual liability on the owner under a participation theory where it is alleged that the owner of the premises allegedly directed the drilling and digging of the various holes in that field as part of a proposed facility expansion.  It was also noted that the landowner had also encouraged the clinic’s patient to participate in recreational activities on that field even though the owner knew that other patients had been previously injured due to the numerous holes the field that were allegedly concealed by overgrown grass.

Lastly, the trial court rejected any venue challenge by the Defendants after finding that the venue in Lackawanna County was proper as to the owner given that the owner resided in Lackawanna County and was served with original process in Lackawanna County.  Judge Nealon also reasoned the venue was proper as to all Defendants where the patient was asserting joint and several liability against the clinic and the owner. Accordingly, the court found that the venue was proper as against both Defendants under Pa. R.C.P. 1006(c).

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Summary Judgment Granted in Dental Malpractice Case Where Plaintiff Sued Defendant Personal and Not His Corporate Entity

In the case of Buarotti v. Terrery, No. 2013-CV-2018 (C.P. Monroe Co. Jan. 28, 2021 Harlacher Sibum, J.), the court granted a Defendant dentist’s Motion for Summary Judgment in a dental malpractice case.   

According to the Opinion, the Plaintiff saw the dentist for an examination and evaluation.  During the examination, the Plaintiff underwent x-rays and, while the Plaintiff was biting down on the radiographic sensor, the dental hygienist tripped over the wires to that sensor.  As a result, the sensor was ripped from the Plaintiff’s mouth and her head was pulled back.  The Plaintiff allegedly sustained a neck strain, vertigo, and TMJ as an alleged result of this incident.   

The Plaintiff and her husband then sued the dentist only on a personal basis.   

The dentist moved for summary judgment asserting that the Plaintiff had failed to establish a negligence claim against him as they had sued the wrong party.  More specifically, the dentist asserted that he did not administer the x-ray and was not even in the room at the time of the incident. 

 The dentist also asserted that he did not, in his personal capacity, hire the hygienist who administered the x-ray.   Rather, the dentist had his office set up under his name as a corporate entity which was a separate legal entity from his individual capacities.   The dentist asserted that the corporation had hired the hygienist as an independent contractor.   

Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas confirmed that the Plaintiff did not present any evidence to rebut the defense assertion that the individual Defendant dentist did not hire the dental hygienist.     As such, the court found that the individual dentist could not be held liable for the hygienist’s actions.   

The court also found that the Plaintiff did not demonstrate any factors that would warrant piercing the corporate vail such as the factors of gross undercapitalization, failure to observe corporate formalities, non-payment of dividends, and insolvency of the debtor corporation, and/or non-functioning of officers and directors.   

The court also rejected any suggestion that the individual dentist was potentially liable for the dental hygienist’s actions under an ostensible agency theory.  

In this matter, the Plaintiff did not also sue the hygienist.   The court ruled that, under Pennsylvania law, absence the agent’s presence in the lawsuit, liability on the part of the principle is extinguished.   

As noted, the court granted summary judgment in favor of the individual dentist Defendant.   

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Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (March 9, 2021). 

Preliminary Objections Sustained Where Only Conclusory Allegations Set Forth in Dram Shop Action

In the case of Shultz v. Barnes, No. 18-CV-1308 (C.P. Lyc. Co. July 19, 2019 Linhardt, J.), the court sustained several Preliminary Objections filed by a Defendant in a liquor liability motor vehicle accident case given that the Plaintiff failed to allege sufficient facts to support various claims. 

According to the Opinion, the Plaintiff was the administrator of the estate of a decedent who was killed in a motor vehicle accident caused by a tortfeasor driver. The Plaintiff alleged that the tortfeasor driver was driving a motor vehicle under the influence of alcohol. 

In addition to suing the driver, the Complaint also identified the company that operated the bar where the tortfeasor driver was drinking prior to the accident as a defendant in this case. The owner and president of that bar was also listed as a defendant.  

 The Defendants filed various Preliminary Objections to the Complaint.  

The court sustained the Defendants’ Preliminary Objections to the count in the Complaint alleging a violation of the Dram Shop Act.  

The defense had argued that the Plaintiff had only provided conclusory allegations that the Defendants knew that the tortfeasor driver was visibly intoxicated while he was at the bar.   The court granted these Preliminary Objections and noted that it was not sufficient for a Plaintiff to simply allege that alcoholic beverages were served to patrons in order to support a Dram Shop action.  

The court noted that the Plaintiff failed to assert any facts regarding the physical appearance of the tortfeasor Defendant driver in terms of whether he was visibly intoxicated or not while he was served at the bar.   Although this Preliminary Objection was sustained, the Plaintiff was granted an opportunity to file an Amended Complaint.  

Relative to the Preliminary Objections filed by the individual Defendant, the court found that the Plaintiff failed to allege sufficient facts to pierce the corporate veil.   Again, the Plaintiff was granted an opportunity to file an Amended Complaint in this regard.  

The court also sustained Preliminary Objections to the Plaintiff’s wrongful death claim given that that claim was brought not only on the Plaintiff’s behalf but also on behalf of entities who were allegedly entitled to damages for reasonable hospital, nursing, and medical expenses, as well as funeral expenses, burial expenses and other losses.  The court noted that, under the Rules of Civil Procedure, such allegations were improper in a wrongful death claim.  As such, the Preliminary Objections in this regard were sustained.   Again, the Plaintiff was granted leave to file an Amended Complaint.

Lastly, the court also sustained Preliminary Objections to the allegations of recklessness and the claims for punitive damages under a finding that the Plaintiff failed to allege sufficient facts to support these allegations.   The court noted that, should discovery later reveal facts supporting an award of punitive damages on separate claims, the Plaintiff would be allowed to seek an amendment at that time.   

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (August 27, 2019).