Lackawanna County Court Addresses Motions in Limine in Podiatric Malpractice Claim

In the case of Latka v. Rieder, No. 19-CV-2078 (C.P. Lacka. Co. Aug. 14, 2020 Nealon, J.), the court addressed issues of allowable proof in a medical malpractice action. 

According to the Opinion, the Plaintiff was bringing this malpractice action against a podiatrist who surgically removed a bone spur from the Plaintiff’s big toe. The Plaintiff asserted that the podiatrist was negligent for recommending and performing that surgery instead of treating the Plaintiff conservatively. The Plaintiff also alleged that the podiatrist was negligent in failing to timely diagnose and properly treat a post-surgical infection which allegedly then caused the Plaintiff to undergo a partial amputation of her big toe. 

The Plaintiff filed a Motion In Limine to preclude the defense from mentioning that infection as a recognized risk of the surgery in question given that the Plaintiff was only advancing negligence claims and not pursing a claim for lack of informed consent. 

Judge Nealon noted that, in a medical malpractice care, evidence that the patient was advised of certain risks of the procedure and still consented to proceed with the surgery is “irrelevant and inadmissible, but evidence of risk and complications that are relevant in establishing the standard of care may be admissible.” 

The court more specifically noted that, evidence that the podiatrist discussed poor healing and bone infection as possible complications of the surgery, and that the Plaintiff chose to undergo the surgery despite being advised of those risks, is clearly inadmissible. However, to the extent that the infection was a recognized complication of the surgery and that the podiatrist considered those risks in making his decision to recommend and perform the surgery, such “risks and complications” evidence is relevant in demonstrating the applicable standard of care. 

As such, Judge Nealon granted the Plaintiff’s Motion In Limine to preclude any informed consent evidence, but denied the motion with respect to any risks and complications evidence that is relevant to the governing standard of care. 

The podiatrist Defendant also filed a Motion In Limine.  The Defendant sought to prevent the Plaintiff from presenting evidence of his alleged failure to document his physical findings in his office chart on the grounds for a cause of action for negligent documentation does not exist in Pennsylvania. 

The court denied the Defendant’s motion to preclude the Plaintiff from presenting evidence regarding the podiatrist’s failure to document given that the Defendant had a professional responsibility to maintain accurate and complete documentation of his treatment of the Plaintiff and given that the podiatrist’s physical examination of the Plaintiff on the date that her recommended surgery is relevant to whether the podiatrist was negligent in recommending that surgery. 

As such, the court noted that the Plaintiff’s podiatric expert would be permitted to testify that the Defendant podiatrist failed to document a complete physical examination such that the Plaintiff’s expert was concluding that the podiatrist did not perform the required examination given that it is not reflected in the office notes. The Plaintiff’s expert would also be permitted to testify that, absent the required examination, the podiatrist was negligent in recommending and performing surgery in the Plaintiff’s expert opinion. 

The court also noted that the Defendant podiatrist may be questioned as to what is and what is not documented in his records. 

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Allegations of Liability of Unnamed Agents, Recklessness, and Punitive Damages Allowed to Proceed in a Podiatric Malpractice Action

In the case of Latka v. Rieder, No. 2019-CV-2078 (C.P. Lacka. Co. July 22, 2019 Nealon, J.), the court addressed Preliminary Objections filed in a podiatric malpractice case.  The Defendant sought to strike the agency allegations for failing to identify the actual or ostensible agents by name along with other details.  The Preliminary Objections were also asserted against the Plaintiff’s allegations of recklessness and reckless indifference along with the claim for punitive damages.

According to the Opinion, the Plaintiff developed an infection after a foot surgery performed by the Defendant.   Treatment of the infection included a partial amputation.  

The Plaintiff sued the podiatrist in a malpractice action and also asserted claims against “the agents, ostensible agents, servants, workers and/or employees” of the podiatrist.   Additionally, in her prayer for relief, the Plaintiff sought to recover punitive damages based upon allegations of recklessness.  

The Defendant podiatrist filed Preliminary Objections seeking to strike the Plaintiff’s agency allegations, recklessness allegations and punitive damages claims as lacking sufficient factual specificity.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the law establishing Pennsylvania as a fact-pleadings state but not requiring that all evidence in support of a claim be set forth in the Complaint.

The court noted that , in the context of Preliminary Objections asserting the lack of sufficient specificity, the test is whether the Defendant has been provided with adequate notice of the claim against which it must defend.  

With regards to the Plaintiff’s general agency complaints against unnamed agents and employees of the named Defendant, the court noted that, under current Pennsylvania appellate law, the failure to identify a Defendant’s agent by name, or the designation of those individuals as a unit, does not justify striking agency allegations in a Complaint.  Judge Nealon also noted that the Defendant’s efforts to strike agency claims for failing to identify the actual or ostensible agents by name in medical malpractice actions has been consistently rejected in Lackawanna County (citing numerous cases).  

In the end, the court noted that the names and responsibilities of the Defendant’s alleged agents can be ascertained during discovery. As such, the Preliminary Objections in this regard were denied.

Relative to the Plaintiff’s allegations of recklessness and the Plaintiff’s punitive damages claims, the court emphasized that punitive damages are only appropriate when an individual’s actions are of such outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

The court noted that wanton or reckless conduct covers instances where the actor has intentionally done an act or an unreasonable character in disregard of a risk known to him or her or so obvious that he or she must be taken to have been aware of it, and so great as to make it highly probable that harm would result.   The court otherwise noted that allegations of merely negligence or even gross negligence, do not suffice to support a punitive damages claim.   

Judge Nealon turned to Pa. R.C.P. 1019(b), along with case law construing that Rule, to support a conclusion that recklessness is a condition of the mind that may be averred generally in pleadings in appropriate circumstances.

Judge Nealon went on to cite numerous Lackawanna County cases in which Preliminary Objections seeking to dismiss punitive damages claims on the basis of factual insufficiency have been uniformly rejected except in cases where the Complaint generally alleged willfulness, wantonness, or recklessness without supporting facts.   

After a review of the allegations in the Complaint in this matter, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s allegations of reckless conduct and the Plaintiff’s related claim for punitive damages. 

The court noted that the Defendant retained the right to challenge the validity of these claims by way of a Motion for Summary Judgment.   

The court additionally emphasized that the Plaintiff may not obtain any financial worth discovery from the Defendant doctor under Pa. R.C.P. 4003.7 unless and until the Plaintiff demonstrated a prima facie right to recover punitive damages.  

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