Judge Powell of Lackawanna County Rules on Medical Practice Pleading Isssues

In the case of Menon v. Geisinger Wyoming Valley Medical Center, No. 2024-CV-7436 (C.P. Lacka. Co. June 23, 2025, Powell, J.), Judge Mark Powell of the Lackawanna County Court of Common Pleas overruled various Preliminary Objections filed by the different medical Defendants to the Plaintiff’s medical malpractice Complaint.

This medical malpractice action arose from the death of a full-term newborn baby.

Relative to the Plaintiff’s claims of negligent infliction of emotional distress related to alleged negligent care during the late pregnancy stage and the delivery, the Defendants filed a demurrer. The Defendants asserted that the Plaintiffs failed to allege a contemporaneous sensory perception of the harm-producing event as required under Sinn v. Burd and Bloom v. Regional Medical Center.

The court disagreed and ruled that the Plaintiffs sufficiently pled a continuous traumatic sequence of events that included direct observation of the newborn’s distress and death. The court cited to the case of Neff v. Lasso, for the proposition that concept of sensory perception in this context under Pennsylvania law is not limited to visual observation but also includes awareness through experience and presence.

Judge Powell also overruled the Defendants’ objections regarding the lack of specificity with respect to the allegations of negligence and agency claims contained in the Complaint. The court held that, under Pennsylvania’s fact-pleading standard, Plaintiffs are not required to identify every employee and are not required to site specific hospital policies at issue at the pleadings stage.

Rather, the court found that, in this case, the Plaintiffs’ detailed allegations provided the Defendants with adequate notice of the claims presented. The court noted that the identity of unnamed agents could be ascertained through discovery efforts.

In this regard, the court emphasized that, in medical malpractice cases, Defendants typically control the relevant records and personnel information.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Lackawanna Jurist, Vol. 126, No. 27 (July 4, 2025).

Plaintiff's Claims For Tortious Interference with a Dead Body Kept Alive

In the case of McGee v. Bowser, No. 838 EDA 2023 (Pa. Super. Dec. 30, 2024 Olson, J., Sullivan, J., and Bender, J.)(Op. by Olson, J.), the Superior Court affirmed in part and reversed in part a trial court’s sustaining of Preliminary Objections in a case involving a Plaintiff’s decedent being moved from his original gravesite without consent.

According to the Opinion, the Plaintiff pled that the Defendant’s conspired to move the decedent from his original gravesite without consent or notice. The Plaintiff also alleged that the disinterment permit had been improperly granted.

Reviewing the claims before it, the appellate court ruled that the Plaintiff had indeed stated a valid claim for tortious interference with a dead body under the elements noted in the Restatement §868.

However, the court found that the Plaintiff’s intentional infliction of emotional distress claim failed. The court noted that such a claim requires that a Plaintiff be present when the tort occurred.

However, the appellate court did allow the Plaintiff’s negligent infliction of emotional distress claim brought against the cemetery for breach of fiduciary duty to proceed given that that claim did not require a contemporaneous observation.

Relative to a civil conspiracy claim asserted by the Plaintiff, the court confirmed that a civil conspiracy claim is a derivative claim and that, given that some of the Plaintiff’s other substantive claims were reinstated, the civil conspiracy claim would likewise be allowed to proceed.

On the issue of the Plaintiff’s claim for punitive damages, the appellate court noted that such damages are permitted on a lesser standard of outrageousness in cases involving the mistreatment of corpses.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of Image:  Photo by Scott Rodgerson on www.unsplash.com.

No Loss of Consortium Claims Recognized for Injury to Pets

In the case of Witters v. Smith, No. 1:23-CV-1441 (M.D. Pa. June 10, 2024 Connor, J.), the court granted in part and denied in part a Motion to Dismiss in a case involving claims of intentional and negligent infliction of emotional distress relative to the shooting of the Plaintiff's dog.

In this matter, the only injury claimed was to the Plaintiff’s dog.  In this case, members of the Pennsylvania Board of Probation and Parole allegedly entered the Plaintiff's backyard without their permission and shot their pet dog.  The Plaintiff's pursued various claims.

The court ruled the Pennsylvania law requires that both intentional and negligent infliction of emotional distress claims require that the Defendant caused some physical harm to the Plaintiffs.  Here, no physical harm to the Plaintiffs was alleged.

The court additionally ruled that the law of loss of consortium claims does not extend to the loss or injury to pets of a plaintiff.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Charles Deluvio on www.pexels.com.  

Superior Court Addresses Law of Liability for Ambulance Crew Members

In the case of Lamarr-Murphy v. Del. Co. Mem. Hosp., No. 1846 EDA 2021 (Pa. Super. Dec. 20, 2023 McCaffery, J., Lazarus, J., and Murray, J.) (Op. by McCaffery, J.), the court affirmed the trial court’s denial of post-trial motions in a case involving emergency medical services rendered to the Plaintiff's decedent.

The decedent, who was only 39 at the time of his death, had a history of gout, blood clots, and deep vein thrombosis.  On the day in question, he passed out at home and an ambulance was summoned.  The Plaintiffs alleged negligence with respect to how the ambulance crew handled their interaction with the decedent at his home and during the transport to the hospital.  In addition to having issues with the medical treatment provided to the decedent by the EMS crew, the Plaintiffs also asserted that the ambulance crew was negligent for taking a different route to the hospital that the family would have taken and for stopping at red lights and stop signs.

Along the way to the hospital, the Plaintiff's decedent went into cardiac arrest and the ambulance was stopped so that the crew could administer CPR and provide other treatment measures.

Overall, 39-40 minutes had passed between the time the ambulance left the decedent's home and the time it arrived at the hospital.  The decedent was pronounced dead on arrival.

During the course of this litigation, the ambulance company defendants asserted that it was immune from liability under the Good Samaritan Act.  The trial court ruled that the Act applied and that, therefore, at trial, the Plaintiffs would have to prove gross negligence to prevail on the claims presented.  A mixed verdict resulted at trial and this appeal followed.   

The Superior Court noted that the exclusion in the emergency responder statute for “hospital emergency facilities” was meant to exclude on-site emergency rooms, not hospital ambulance services, from liability.  The appellate court otherwise noted that an emergency provider is granted immunity under the statute unless that individual’s actions amount to intentional harm or gross negligence with respect to the injured party.

The Superior Court also held that the choice of route or the use of sirens by an ambulance crew does not rise to the level of gross negligence.

The court otherwise noted that an ambulance driver’s compliance with traffic laws also does not amount to a breach of duty to a healthy passenger that could serve to support the passenger’s claim for negligent infliction of emotional distress based upon an injury to a relative located within the ambulance.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Erik McLean on www.unsplash.com.

Live-in Girlfriend Is Not Considered "Closely Related" for Negligent Infliction of Emotional Distress Claims

In the case of Lutz v. O’Connell, No. 729-CV-2023 (C.P. Col. Co. Oct. 26, 2023 Norton, J.), the court addressed the issue first impression on whether a live-in girlfriend could be considered to be “closely related” to the injured party so as to permit a recovery for the live-in girlfriend for negligent infliction of emotional distress she allegedly suffered when she observed the death of her paramour.

According to the Opinion, this case arose out of a fatal motor vehicle accident.

In the Complaint, it was alleged that the Plaintiff's decedent, who had died in the accident, and the girlfriend had lived together prior to the accident and considered themselves to be common-law husband and wife.

The subject accident occurred when a Defendant driver allegedly was proceeding in the wrong direction on Route 11 south and collided with the vehicle being operated by the now deceased Plaintiff boyfriend and then also striking the separate vehicle that was operated by the girlfriend.

 It was noted in the Opinion that, pursuant to 23 Pa. C.S.A. §1103, “no common-law marriage contracted after January 1, 2005, shall be valid.”  Based on this statue, the court found that the couple in this matter was not married under the doctrine of common-law marriage.

Judge Gary E. Norton of the Court of Common Pleas for Columbia and Montour County issued an Opinion in which he concluded that the boyfriend’s live-in girlfriend was not “closely related” as that term is used in the negligent infliction of emotional distress context.

The Judge reasoned, in part, that, if he were to have ruled otherwise, the nebulous question in this regard would focus on how close a couple was, which could lead trials to “devolved into contest as to the quality of the relationships” and would raise more problems for the court when trying to craft an appropriate jury instruction.

Anyone wishing to review a copy of this decision may click this LINK.

Source: Article: “Live-In Girlfriend Can’t Sue For Negligent Infliction of Emotional Distress, PA Judge Rules in First Impression Case,” By Riley Brennan of the Pennsylvania Law Weekly (October 27, 2023).

Claim For Negligent Infliction of Emotional Distress Dismissed Where Plaintiffs' Distress Arose Later, Long After the Physical Impact

In the case of Russell v. Educ. Comm’n For Foreign Med. Graduates, No. 2:18-CV-05629-JDW (E.D. Pa. May 19, 2022 Wolson, J.) (Mem. Op.), the court addressed a unique issue with regard to a claim for negligent infliction of emotional distress in a medical malpractice setting.

This case involved a class of plaintiffs who had received treatment from an individual who had allegedly used fraudulent documents to assert that he was a medical doctor who had completed all of the requirements to practice medicine. This person had been certified by the Defendant commission as a valid doctor.

The Plaintiffs in the class had received treatment from the individual between 2012 and 2016.

Thereafter, the Plaintiffs learned about the individual’s identity in 2017 and 2018.

The Plaintiffs filed suit against the Defendant commission who had incorrectly certified the individual as a valid member of the medical profession. In that Complaint, the Plaintiffs asserted claims for negligent infliction of emotional distress as a part of a class action involving numerous Plaintiffs.

The court in this matter confirmed that Pennsylvania Supreme Court had not addressed the particular issue, that is, whether Plaintiffs could raise a negligent infliction of emotional distress claim when they learned new information about some previous event.

The court in this Russell case stated that, under Pennsylvania law, Plaintiffs had been limited in their ability to pursue negligent infliction of emotional distress claims given that the court had required Plaintiff to suffer physical impact, be in a zone of danger, observe a tortious physical injury to a close relative, or to cases where the Defendant had a special contractual or fiduciary duty owed to the Plaintiff. 

The court additionally noted that the only cases that had relaxed the requirements that the emotional distress at issue be contemporaneous with a physical impact were those cases involving an exposure to disease.

In this Russell case, the Plaintiff alleged that they suffered physical impacts when they received medical treatment from the individual.

However, the court noted that the emotional distress did not accompany that impact. Rather, the alleged emotional distress arose later when the Plaintiffs learned about the individual’s arrest and about his background. The court additionally noted that, between the physical impact and the gathering of the knowledge about the individual’s arrest and background, there was no ongoing threat or risk that caused any of the Plaintiffs’ distress.

Rather, the alleged emotional distress of the Plaintiffs was a product of their re-conceiving their memories in light of the new information gathered.

Judge Wolson in this Russell case predicted that the Pennsylvania Supreme Court would not recognize a negligent infliction of emotional distress claim under these types of facts. The court noted that, while the Plaintiffs' alleged emotional trauma was real, the Pennsylvania Supreme Court had repeatedly made clear that not everyone who experiences an emotional trauma has a legal remedy under Pennsylvania law.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).

Summary Judgment Denied in Football Sidelines Injury Case

In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 13, 2021 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed a Motion for Summary Judgment filed by the Defendant, Valley View School District, in a case in which the Plaintiff's decedent was standing along the sidelines of a high school football game and was hit by players who spilled onto the sidelines during a play, which caused the decedent to be propelled backwards, as a result of which he ultimately fell backwards and struck his head on an asphalt surface which bordered the playing field. 

The decedent unfortunately suffered injuries which ultimately resulted in his death approximately ten (10) days later. The decedent’s son was on the stand with the decedent’s grandson and witnessed the incident.

The Defendant, Valley View School District, offered several reasons in support of its Motion for Summary Judgment. The school district argued that, as a political subdivision, it was entitled to immunity under the Political Subdivision Tort Claims Act. 

The school district Defendant also asserted that it was entitled to judgment under the law of the no-duty doctrine. 

The Defendant additionally asserted that it was entitled to summary judgment under assumption of risk doctrine and/or that the Plaintiff had failed to establish that the Defendant was negligent as a matter of law. 

On the claims asserted by the decedent's son, the Defendant argued that the Plaintiff had failed to put forth facts sufficient to support a cause of action for negligent infliction of emotional distress.

The court addressed each of these arguments in term and denied all of them.  In the end, the school district’s Motion for Summary Judgment was denied.

In his Opinion, Judge Gibbons provides a thorough update on the current status of the law surrounding the no-duty doctrine and the immunity provided under the Political Subdivision Tort Claims Act.

Judge Gibbons also confirmed that the assumption of risk doctrine remains a valid defense under Pennsylvania law. After outlining the elements of that defense, the court found that the Defendant had not offered sufficient proof to compel the application of that doctrine. The court emphasized that there remains a “reluctance under Pennsylvania law to find that the assumption of the risk applicable unless it is quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted.” [citation omitted] [emphasis in original citation deleted here]

With regard to the claim for negligent infliction of emotional distress asserted on behalf of the decedent’s son, the court outlined the current elements of that law and found that issues of act prevented the entry of summary judgment.


Anyone wishing to review a copy of this decision may click this LINK.

Claim of Negligent Infliction of Emotional Distress Allowed to Proceed in Med Mal Case

In the case of J.J.W. v. Suppiah, No. 2020-SU-002045 (C.P. York Co. Jan. 25, 2021 Adams, J.), the court denied the Preliminary Objections filed by medical malpractice Defendants to a Plaintiff’s claim for negligent infliction of emotional distress.   

According to the Opinion, the Plaintiffs were the parents of a minor who was four (4) years old at the time he underwent eye surgery at a hospital.   During the course of the surgery, the minor was administered 10 mg of Morphine, which was allegedly approximately eight (8) times the recommended dose.   

When the minor was discharged from the hospital, he was not fully conscious.  It was alleged that, during the discharge process, the parent Plaintiff did not receive any information that anyone had administered Morphine to the child, nor were they given instructions or warnings regarding the potential harmful effects that Morphine could cause their child.

Later, when the parent Plaintiffs noticed that they child was not waking up, they took him to the emergency room at the hospital.  The child was transferred to a pediatric intensive care unit at another hospital.  Testing revealed that the Plaintiff suffered from opioid toxicity.  The minor Plaintiff had to undergo extensive rehabilitation.   

The Plaintiffs filed a medical malpractice lawsuit.  The hospital filed Preliminary Objections arguing that the Plaintiff’s claims for negligent infliction of emotional distress should be dismissed because the Plaintiff did not demonstrate the necessary special relationship with the hospital and because the Plaintiff did not witness the administration of the Morphine.   

With regard to the special relationship argument, the parent Plaintiff responded that they were required to sign all consent forms due to the child’s age and that the discharged papers were provided to them.   They additionally argued that the child’s inability to understand his medical care meant that the hospital had a duty to provide his parents with important information and discharge instructions, which the Plaintiffs alleged were grossly inadequate and incomplete.   

The Plaintiffs additionally asserted that, when the child was near death, it was foreseeable that the parent’s shock and emotional distress resulted in anxiety, headaches, sleep disturbance, crying spells, fear, depression, and mental and emotional anguish.  

The court overruled the Preliminary Objections after finding that the Plaintiff had provided sufficient facts to support their claim for negligent infliction of emotional distress.   The court agreed that the Plaintiff did not need to witness the negligent administration of the Morphine to support their claim because that was only one aspect of the underlying claims against the hospital.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2021).

Court Addresses Current Status of Law of Negligent Infliction of Emotional Distress

In the case of Watkins v. UPMC Jameson, No. 30002 of 2020 C.A. (C.P. Lawr. Co. Oct. 8, 2020 Cox, J.), the court held that, where the Plaintiff alleged that the medical Defendant did not provide her with proper treatment when she appeared at the hospital at 26 weeks gestation and that proper treatment could have prevented the child’s death, the Plaintiff was found to have sufficiently alleged a duty of care owed to her and a breach of that duty, and had also asserted a viable claim for negligent infliction of emotional distress.

Part of the court’s decision centered around the claim for negligent infliction of emotional distress.

The court in this Watkins case noted that the Pennsylvania Superior Court in the case of Turner v. Medical Center, Beaver Pa., 686 A.2d 830 (Pa. 1996), had acknowledged that the Pennsylvania Supreme Court had abandoned the zone of danger concept and had instead adopted a doctrine based upon the foreseeability of the injury in negligent infliction of emotional distress claims.

Here, the Plaintiff had alleged the existence of a contract or a fiduciary relationship as she had received medical care from the Defendants.

The court noted that the Plaintiff had alleged that proper treatment could have prevented her child’s death. The court found that it was clearly foreseeable that the Plaintiff will be traumatized by giving birth of a child at just 26 weeks into her pregnancy and observing that child in distress prior to the child’s death.

Accordingly, the court found that the Plaintiff had properly alleged a duty of care owed to her by the Defendant and an alleged breach of that duty.

However, with respect to the claim of negligent infliction of emotional distress at issue, the court found that the allegations in the Plaintiff’s Complaint regarding the physical impact or injury element were not specific enough. As such, the court granted the Plaintiff leave to amend the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Eastern District Court Remands Motor Vehicle Accident Insurance Coverage Question Back to State Court

In the case of Gibbons v. Mid-Century Insurance Company, No. 20-3381 (E.D. Pa. Sept. 24, 2020 Kenney, J.), the Court granted a Motion to Remand a motor vehicle accident insurance coverage Declaratory Judgment action that was removed to federal court. 

The case arose out of a car accident where the minor children witnessed their father’s death as the family crossed a street as pedestrians. The insurance dispute focused on the ability of the children to receive coverage for claims of emotional distress. 

After the case was removed to federal court by the carrier, the Plaintiff filed a Motion to Remand and argued that the case should be remanded because the issue involved in the case has not been decided by the Pennsylvania Supreme Court and was based exclusively upon state law. 

The carrier argued that the District Court should exercise jurisdiction because there was no other parallel state court case pending.

The District Court noted that, if it retained jurisdiction, it would need to determine “whether Pennsylvania law or public policy precludes an insurance policy from defining emotional distress injuries suffered by a bystander witnessing the death of a close relation as derivative of the injury sustained by the relation.” 

The District Court noted that the Pennsylvania courts have not reached a well-settled conclusion on the issue. As such, the Court exercised its discretion under the Federal Declaratory Judgment Act and chose to abstain from jurisdiction. Accordingly, the insured’s Motion to Remand was granted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Scott Cooper of the Harriburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Judge Gibbons Addresses Multiple Issues With Respect to Injury Sustained On Sidelines of Football Game

In the case of Cantafio v. Valley View School District, No. 2018-CV-2991 (C.P. Lacka. Co. May 29, 2020, Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas addressed several different issues in a wrongful death and survival action arising from an accident that occurred during a high school football game.

According to the Opinion, a play spilled onto the sideline, as a result of which the adult Plaintiff, who was standing along the sidelines as a team statistician, was struck and caused to fall backwards and land violently on a nearby asphalt surface. The Plaintiff sustained ultimately fatal injuries.

The decedent’s estate filed suit alleging negligence in the design and construction of the high school football stadium. The Plaintiff’s also asserted claims of negligent infliction of emotional distress, wrongful death, and a survival action against multiple Defendants. The original Defendants joined in certain Additional Defendants.

The court was faced with various Preliminary Objections raised by the Defendants with respect to both the Complaint and the Joinder Complaint.

Of note, the court addressed the Defendant high school’s Preliminary Objection asserting that he Plaintiff’s Complaint should be dismissed because the Plaintiff did not provide written notice of the incident to the school district within six (6) months of the incident was required by the law for claims of against the school. The court overruled this objection since the high school admitted that, although formal notice was not provided by the Plaintiff, the school was obviously aware of, and had actual notice of, the incident giving rise to the lawsuit. As such, this case was held to fall under an exception to the six (6) month requirement under the statute since the high school had actual notice of the event.

The court also rejected the high school’s claim that the Plaintiffs’ Complaint should be dismissed under the “No Duty” doctrine given that the decedent knowingly exposed himself to foreseeable injuries which could result from standing on the sideline of a football field, a few feet from where the game was taken place.

While the court noted that the “No Duty” rule provides that a Defendant owes no duty of care to warn, protect, or ensure against risk which are “common, frequent and expected” and “inherent” in an activity, the court overruled this Preliminary Objection after concluding that the risk faced by the Plaintiff, which was the risk of death as a result of a collision with players, which caused the Plaintiff to strike his head on an asphalt curb located near the field of play, was not a risk that could be considered to be common, frequent, or expected to be inherent in the game of football.

The court also overruled the high school’s Preliminary Objection asserting that the school was immune from liability under the Political Subdivision Tort Claims Act as a local agency as defined by the act. The court stated that a Preliminary Objection is a procedurally improper effort to claim immunity as such claims must be raised under a responsive pleading as “new matter” given that immunity is an affirmative defense under Pa. R.C.P. 1030.

On yet another separate issue addressed in this Opinion, Judge Gibbons also followed the rule in Lackawanna County with respect to claims of recklessness by denying the Preliminary Objections asserted by the Defendant to such claims after finding that, under Pa. R.C.P. 1019, allegations of recklessness, as an allegation pertaining to the state of mind of the actor, can be pled generally.

The court also denied Preliminary Objections to the Plaintiffs’ claim for negligent infliction of emotional distress based upon the fact that the decedent’s son was in the audience at the football game and observed his father’s accident. The court overruled the Preliminary Objections in this regard after finding that the Plaintiff pled sufficient facts to move forward on that claim.

The court also overruled various Preliminary Objections filed by the Additional Defendants after finding that the Joinder Complaints had pled sufficient facts to support the claims of contribution and/or indemnity.

The court also rejected Preliminary Objections by one (1) Defendant who had asserted that it was entitled to have the claims against it arbitrated under an arbitration agreement entered into by that Defendant with the high school Defendant. The court overruled this position after finding that the arbitration agreement was unenforceable in this action where the underlying dispute involved several entities that were not a party to the agreement.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Harry McGrath of the Kingston, Pennsylvania law firm of Fellerman & Ciarimboli for bringing this decision to my attention.

Court Addresses Liability of Medical Facilities in Med Mal Context

In the case of Williams v. Vigder, No. 11050-CV-2019 (C.P. Beaver Co. Nov. 7, 2019 Ross, J.), the court addressed Preliminary Objections filed against claims of corporate negligence asserted against a medical facility, along with other issues in a medical malpractice matter.

In this case, Plaintiffs filed corporate negligence claims against two medical facilities, one of which appeared to be a hospital. The Defendants asserted that the doctrine of corporate negligence is not applicable to hospitals or like entities which play a role in the administration of total health for their patients.

The court denied this position put forth by the Defendant for Preliminary Objections purposes in light of the more recent pronouncement of the Pennsylvania Supreme Court in Scampone v. Highland Park Care Center, LLC, 57 A.3d 583 (Pa. 2012).

The court in this Williams case noted that the Pennsylvania Supreme Court in the Scampone case stated “that a Defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context.” Scampone at 599.

The court in Williams noted that “[t]he Scampone court specifically held that entities, such as nursing homes (and by inference hospitals and other like groups (health care providers)) should not be held to be “categorically immune from direct liability claims.” Id. at 600.

Given that doubt existed as to whether the demurrer to the corporate negligence claim should be sustained in this matter, the court overruled the Preliminary Objections filed by the Defendants in the Williams case.

In this case, this Williams case, court also allowed the Plaintiff’s claim for negligent infliction of emotional distress to proceed under facts alleged that the Plaintiffs allegedly experience great emotional shock after being advised of concern by the medical providers for their unborn child’s life after previously being advised that the mother’s labor was proceeding without incident. In overruling this Preliminary Objection, the Williams court cited to the case of Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. 2008).

Lastly, the court also overruled the Defendant’s Preliminary Objections against the Plaintiff’s claim for punitive damages after finding that the Plaintiff’s allegations contained in their Complaint were sufficient to allow that claim to proceed.

Anyone wishing to review a copy of this case may click this LINK.

I send thanks to Attorney Michael Foley of the Foley Law Firm in Scranton, Pennsylvania for bringing this case to my attention.

Seeing Accident of Loved One on IPhone App Map Does Not Support Negligent Infliction of Emotional Distress Claim

In the case of Jenson v. St. Louis, No. 3:19-cv-00515 (M.D. Pa. Aug. 9, 2019 Munley, J.), the court granted in part and denied in part a Motion to Dismiss a Plaintiff’s negligent infliction of emotional distress claim in a fatal trucking accident matter.  

According to the Opinion, prior to the day of the accident, the decedent would always call his fiance when he arrived at work.  On the day of the accident, when the decedent did not call, his fiance used a smartphone application to locate the decedent's cellular phone.  The application displayed a map that indicated that the phone, and therefore, the decedent, were located at the scene of a crash.

The Plaintiff-fiance alleged in the Complaint that she suffered a direct and immediate shock by this contemporaneous and sensory observance of the fatal collision through her iPhone.

Judge James M. Munley of the Federal Middle District Court found that these facts did not support an allegation of the required contemporaneous perception element of a cause of action for negligent infliction of emotional distress. 

The Court emphasized that the Plaintiff did not witness the accident but only saw a reporting of the accident on her phone after the fact.  This was found to be insufficient to support the element of contemporaneous observance of an accident necessary to support a claim for negligent infliction of emotional distress.  

The court analogized this case to those cases in which this type of claim was dismissed where a plaintiff received a phone call from a hospital indicating that a loved one had been in an accident.

Given his ruling on this aspect of the claim, Judge Munley did not reach the issue of whether this Plaintiff's status as the fiance of the decedent was a close enough relationship to support the requirement under the claim of negligent infliction of emotional distress that one suffer from a contemporaneous observance of an injury to a close relative in order to present such a claim.

The court allowed the remaining claims by other Plaintiffs to proceed, including a claim of punitive damages in a case where a trucker attempted to merge back onto the Northeast Extension of the Pennsylvania Turnpike under dark conditions and with no lights illuminating the sides of the trailer portion of the tractor trailer at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order.

I send thanks to Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 

Negligent Infliction of Emotional Distress Claim Allowed to Proceed in Medical Malpractice Claim

In the case of Murga v. Lehigh Valley Physicians Group, No. 2016-C-1691 (C.P. Leh. Co. Nov. 26, 2018 Johnson, J.), the court found that the Defendants were not entitled to summary judgment on the Plaintiff’s claim for negligent infliction of emotional distress because the Plaintiff sought relief under multiple plausible theories and given that the case for summary judgment was not free and clear from doubt.  

In this matter, the Plaintiff alleged a medical malpractice claim against the Defendants for negligent infliction of emotional distress in connection with a miscarriage that the Plaintiff had suffered.  

The Defendants moved for a partial summary judgment, arguing that the Plaintiff’s negligent infliction of emotional distress claim failed because her alleged emotional injuries were not foreseeable and given that the Plaintiff allegedly did not observe a discrete traumatic event contemporaneously with the Defendants’ alleged negligence.   The Defendants also argued that a buffer of time and space existed in connection with the Plaintiff’s miscarriage and the delivery of her deceased fetus.  

In response, the Plaintiff argued that her claim for negligent infliction of emotional distress was appropriate under multiple theories of recovery, including a duty of care arising from a special relationship, under the physical impact theory, as well as under the bystander theory.  

The court denied summary judgment finding that it was not free and clear from doubt that the Defendants were entitled to the same.   The court cited to numerous Pennsylvania cases which permitted recovery for negligent infliction of emotional distress under the various theories asserted by the Plaintiff under similar circumstances.   

As such, the Motion for Partial Summary Judgment filed by the Defendants was denied.  

Anyone wishing to review a copy of this decision may click this LINK.

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (Feb. 26, 2019).  

Gist of the Action Doctrine Held to Bar Negligence Claim

In the case of Weiss v. Nazareth Mutual Insurance Company, No. 6293-Civil-2017 (C.P. Monroe Co. July 5, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted Preliminary Objections under the gist of the action doctrine in a case arising out of an insurance claim following a fire loss.  

According to the Opinion, the Plaintiff claimed that, following the fire, the Plaintiff’s property was burglarized.   As such, the Plaintiff submitted a claim to the insurance carrier with respect to the personal property that was allegedly stolen.   In his Complaint, the Plaintiff asserted that the carrier had not acted upon his claim for some of the lost personal property.  

The Complaint additionally contained claims against a remediation company who worked on the premises following the fire.   The Plaintiff alleged that the remediation company removed some of the Plaintiff’s property during the remediation project and never returned it to the Plaintiff.   That remediation company filed various Preliminary Objections to the Complaint.  

Judge David J. Williamson
Monroe County

In part, the remediation company asserted that the Plaintiff’s claims of negligence were barred by the gist of the action doctrine.   Judge Williamson agreed, finding that this case was primarily a contract action and that the allegations of the negligence claim were nearly identical to those pled in the contract claim.  As such, the negligence claim was stricken from the Complaint on the basis of the gist of the action doctrine.  

In another notable decision in this Opinion, the court dismissed the Plaintiff’s claim for negligent infliction of emotional distress after finding that the Plaintiff had failed to assert any physical harm as required by the elements of that cause of action. 

Anyone wishing to review a copy of this decision may click this LINK .

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  

Case of Apparent First Impression: Judge Gibbons of Lackawanna County Allows Direct Liability Med Mal Claim to Proceed Against Physicians Professional Group/Private Medical Practice

In a June 8, 2016 Opinion in the case of Astleford v. Delta Medix, No. 15-CV-5134 (C.P. Lacka. Co. 2016 Gibbons, J.), Judge James A. Gibbons of the Lackawanna County Court of Common Pleas issued what may be the first decision in the Commonwealth of Pennsylvania in which direct/corporate liability was extended to physicians professional groups or a private medical practice group, as opposed to vicarious liability.

This medical malpractice action arose out of allegations of negligent care provided to the Plaintiff during treatment for cancer.  In her Complaint, the Plaintiff made claims of both vicarious and direct liability against the treating doctor as well as the physicians professional group that participated in her care.

The case came before the court on Preliminary Objections filed by the defense, which the court granted in part and denied in part.

The Defendant's Preliminary Objections against the Plaintiff's claims for punitive damages were denied after the court noted that the law allows for such claims in medical malpractice cases where willful or wanton conduct, or reckless indifference to the rights of others is alleged on the part of a defendant as was found to have been alleged in this matter.

Judge James A. Gibbons
Lackawanna County
 

In his Opinion, Judge Gibbons extended the reasoning found in the Pennsylvania Supreme Court nursing home liability case of Scampone v. Highland Park Care Center, 57 A.3d 582 (Pa. 2012).  In Scampone, the Pennsylvania Supreme Court noted that a corporation, separate and apart from its agents, may owe a duty of care to maintain safe facilities and to oversee that its staff is competent.  See Astleford at p. 10.  The Scampone decision was also noted to stand for the proposition that were there was no legislation precluding liability under certain circumstances, a court was not prevented from recognizing the existence of potential liability under the law.

Judge Gibbons emphasized that the status of the case before him was at the preliminary objections stage and that, by denying the defense Preliminary Objections raised against the allegations of direct liability, the trial court was only ruling that the Plaintiff had properly pled a case of direct liability against the physicians professional group/private medical practice.  Judge Gibbons further stated that "[w]hether that claim survives is a question for another day."  See Astleford at p. 10.

The court in Astleford otherwise denied the defense demurrer to the Plaintiff's informed consent claim but sustained the defense demurrer to the Plaintiff's claim for negligent infliction of emotional distress where the Plaintiff did not alleged a physical injury from the alleged emotional harm as required by the elements of that cause of action.

Anyone wishing to review of a copy of this decision may contact me at dancummins@comcast.net.

I send thanks to Attorney Michael J. Foley of the Scranton Foley Law Firm for bringing this case to my attention.

Negligent Infliction of Emotional Distress Claim Allowed to Proceed in Med Mal Case

In his May 18, 2016 decision in the case of Page v. Moses Taylor Hospital, 2011-CV-1402 (C.P. Lacka. Co. May 18, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed claims for negligent infliction of emotional distress in the context of a medical malpractice case.  

In this case, the Plaintiff commenced a medical malpractice claim against various medical Defendants for allegedly failing to properly diagnose and treat the Plaintiff’s preeclampsia during her pregnancy with twins as a result of which the Plaintiff allegedly suffered an eclamptic seizure that allegedly resulted in the stillbirth of the twins due to a placental abruption allegedly attributable to the Plaintiff’s seizure and her other medical conditions.  

The Plaintiff instituted a cause of action on behalf of her stillborn twins under the Wrongful Death Act and the Survival Act, along with her own independent claim for negligent infliction of emotional distress related to the death of her twins.  

Various Defendants filed a Pre-Trial Motion In Limine seeking to preclude the Plaintiff from introducing any evidence in support of her claim for negligent infliction of emotional distress on the grounds that the Plaintiff allegedly did not experience or observe a discrete and identifiable traumatic event since she was unconscious at the time that the stillborn twins were delivered, given that the Plaintiff was not aware of any alleged malpractice by her treating health care providers during her prenatal care and treatment, and given that the Plaintiff had not produced any expert report from a psychiatrist or a psychologist detailing that she suffered from emotional harm.  

The Defendants were also seeking to bar the Plaintiff from introducing evidence of any emotional or psychological harm she suffered as a result of this matter.  

After reviewing the various elements of a valid claim for negligent infliction of emotional distress, including the physical impact test, the zone of danger test, and bystander liability, the court noted that the Plaintiff was asserting that her negligent infliction of emotional distress claim was viable under the “physical impact” rule as giving birth to a stillborn child physically impacts the mother.   The court cited other trial court Opinions allowing such a claim to proceed under the physical impact theory. 

Judge Terrence R. Nealon
Lackawanna County

Accordingly, Judge Nealon ruled that irrespective of whether or not the Plaintiff could prove her claim under a bystander theory of liability for negligent infliction of emotional distress, Plaintiff could proceed with that claim pursuant to the “physical impact” rule.  

The court also rejected the defense arguments that the Plaintiff failed to offer any evidence that she was aware of any alleged malpractice by her treating providers during her prenatal care or treatment or that the Plaintiff had failed to produce any expert report from a psychiatrist or psychologist detailing that she had suffered emotional harm.   The court noted that there were several Lackawanna County Court of Common Pleas decisions rejecting the argument that a patient pursuing a claim for negligent infliction of emotional distress must realize, at the time of the medical care at issue, that the treatment deviated from the standard or care.  

Citing Superior Court precedent, Judge Nealon also ruled that that supporting medical proof is not required to sustain a cause of action for negligent infliction of emotional distress.   Rather, provided that the Plaintiff presented proof that she had experience some physical manifestation of her emotional distress, such as persistent depression, nausea, sleep disturbance, nightmares, flashbacks, breathing difficulties or hysterical attacks, Plaintiff may proceed on a claim for negligent infliction of emotional distress.  

Judge Nealon also noted that, even assuming for argument’s sake that the Plaintiff was unable to sustain a valid claim for negligent infliction of emotional distress, she would not be foreclosed from seeking to recover damages for the emotional distress and mental anguish she suffered from the stillbirth of her twins.  Rather, such damages were allowed under the wrongful death act.  

Accordingly, the court denied the defense Motion In Limine filed against the Plaintiff’s claims for negligent infliction of emotional distress and/or claims for damages for the emotional distress and mental anguish she suffered from the stillbirth of her twins.  

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

Judge Munley of Federal Middle District Allows Claim for Negligent Infliction of Emotional Distress to Proceed

In his recent decision of Caple v. Sears Dept. Stores, No. 3: 15 - CV - 1666 (M.D. Pa. April 15, 2016 Munley, J.), Judge James M. Munley of the Middle District of Pennsylvania denied a Defendant’s partial Motion to Dismiss filed against a negligent infliction of emotional distress claim.  

In so ruling, Judge Munley found that an allegation of “severe emotional distress” in the Complaint was enough, under federal pleadings law, to plead the type of debilitation and extended emotional distress necessary to support a claim for negligent infliction of emotional distress.  

Judge Munley's Opinion can be viewed HERE  , and his corresponding Order HERE.

I send thanks to Attorney James Beck of the Philadelphia office of Reid Smith and the writer of the notable legal blog, The Drug and Device Law Blog for bringing this case to my attention.    

 

Judge Nealon Allows NIED Claim To Proceed in Med Mal Case

In his recent October 19, 2015 decision, in the case of Euceda v. Green, No. 13-Civil-3373 (Lacka. Co. Oct. 19, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Motion for Summary Judgment filed against a Plaintiff’s negligent infliction of emotional distress (NIED) claim in the context of a medical malpractice case.  

According to the Opinion, the Plaintiff-mother made a claim for negligent infliction of emotional distress after witnessing the traumatic birth of her son who was born with a severely misshaped and bruised head allegedly as a result of the Defendants’ negligence.  The Plaintiff-mother also allegedly witnessed the postpartum seizures that her son suffered, the neonatal resuscitation and intubation that her son required, other treatment administered to her son, and her son’s eventual death in her arms eight (8) days after his birth.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon also noted that there is evidence in the record allegedly showing that, as a result of the Plaintiff-mother’s contemporaneous observance of the above incidents, the Plaintiff-mother continued to experience severe depression, bouts of hysterical sobbing, inability to breath, nausea, insomnia, and nightmares about her son’s delivery, physical appearance at birth, and death.

The Defendants in this medical malpractice action filed a Motion for Partial Summary Judgment seeking to dismiss the Plaintiff-mother’s claim for negligent infliction of emotional distress on the basis that the Plaintiff-mother could not demonstrate her physical manifestation of her emotional distress and given that the Plaintiff-mother had not received any psychiatric or psychological care for her depression.

Judge Nealon denied the motion and allowed the claim for negligent infliction of emotional distress to proceed.

The court ruled, in part, that, although it was undisputed that the Plaintiff-mother had not received any professional medical treatment for her depression for emotional state, or emotional state, the court found that medical evidence is not required to sustain a cause of action for negligent infliction of emotional distress. In this regard, Judge Nealon cited to Krysmalski by Krysmalski v. Tarasovich, 622 A.2d 298, 305 (Pa. Super. 1993), appeal denied, 636 A.2d 634 (Pa. 1993) [other citations omitted].

Moreover, Judge Nealon found that the bodily symptoms evidence in the record before the court as reportedly sustained by the Plaintiff-mother on a recurrent basis served to satisfy the "physical manifestation" requirement for a claim of negligent infliction of emotional distress under Pennsylvania law.

Accordingly, the court ruled that the Defendants had not established that the mother’s claim for negligent infliction of emotional distress was fatally deficient. The Motion for Partial Summary Judgment was denied and the claim was allowed to proceed.

Anyone wishing to review Judge Nealon's decision in Euceda may click this LINK.

 

 

Current Status of Law on Negligent Infliction of Emotional Distress Reviewed by Western District Federal Court

In the case of Rapchak v. Freightliner Custom Chassis Corp., 2:13-cv-1307 W.D. Pa. June 10, 2015 McVerry, J.), the court addressed the current status of the Pennsylvania law relative to negligent infliction of emotional distress claims.

In this matter, the decedent was working under his motorhome in his driveway by lying on his back while the vehicle was lifted up.  While the decedent was in this position, his mother came out of the home and said goodbye as she was leaving to visit a car show with a friend.  While the decedent's mother was away from the home, the motorhome came down on the decedent's chest and suffocated him to death. 

When the mother came home later that day she eventually found the decedent under the motorhome with his legs sticking out.

The Plaintiff-mother later filed suit and included a claim for negligent infliction of emotional distress.

The Rapchak court granted partial summary judgment, finding that a plaintiff cannot recover for negligent infliction of emotional distress where she did not contemporaneously observe the accident that resulted in the decedent's death.  

The court's decision, which provides a nice recitation of the current status of the bystander theory of recovery under the claim of negligent infliction of emotional distress can be viewed online HERE.

 

I send thanks to Attorney Jim Beck of the Philadelphia office of Reed Smith.  Attorney Beck is the creator of the excellent Drug and Device Law Blog which can be viewed HERE.