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.

Choice of Ways Doctrine Helps Convince Court To Deny Summary Judgment in a Fall Down Case

In the case of Ruddick v. Calandra, No. 4572-CV-2018 (C.P. Monroe Co. Oct. 21, 2019 Williamson, J.), the court found that issues of fact prevented the entry of summary judgment in a fall down case.

According to the Opinion, as the Plaintiff was leaving the home of the Defendant, the Plaintiff turned to respond to a person who had called to her. The Plaintiff then stepped off a paved walkway and fell into a depression in the ground, allegedly sustaining injuries as a result.

The defense filed a Motion for Summary Judgment asserting that the Plaintiff failed to provide any evidence of a dangerous condition on the property or that the Defendants had acted negligently. The defense also asserted that the Plaintiff had elected to step off of the walkway and onto the grass, thereby implicating the “change of ways” rule.

The court found issues of fact that prevented the entry of judgment in favor of the defense. More specifically, the evidence revealed that the Defendants admitted that a soft depression formed in their yard when it rained. As such, there was an issue of whether or not weather conditions created a defect in the yard and whether that defect was the cause of the Plaintiff’s injuries. The court thought that these issues should be left for the jury.

Judge Williamson additionally ruled that the contributory negligence issues related to the Plaintiff stepping off of the path was also a jury question.

In this regard, the defense raised the "Choice of Ways" Doctrine which holds that where a person has a choice of ways, one of which is perfectly safe, and one which is attendant with risk and dangers, and that person voluntarily chooses the dangerous way, that person is contributorily negligent and cannot recover.

There was a question as to whether the Plaintiff made a voluntary “choice of ways” in this case as both Defendants admitted that he walkway upon which the Plaintiff was located was very narrow.

The court denied the Defendants’ Motion for Summary Judgment and allowed the issues to proceed to a jury.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).


Should you need any assistance bringing your premises liability case to a close, please do not hesitate to contact me to set up a mediation through Cummins Mediation Services.  I can be reached at 570-319-5899 or at dancummins@CumminsLaw.net.  Thank you.

Another Federal Middle District Court Decision Denying a Post-Koken Motion to Sever and Stay a Bad Faith Claim

In the case of Ferguson v. USAA, No. 1:19-CV-401 (M.D. Pa. Dec. 5, 2019 Rambo, J.), the Federal Middle District Court determined that a bad faith claim could proceed independently of a breach of contact claim, even if the breach of contract claim failed.

In its decision, the Ferguson court also denied the carrier’s Motion to Sever the bad faith claim and stay bad faith discovery. 

In so ruling, the court noted that, even if the claims of breach of contract and bad faith are distinct, they are “significantly intertwined from a practical perspective,” including the fact that both claims involved discovery on the injuries alleged on what efforts the carrier completed to investigate the claims asserted. 

This court found that attempting to separate the breach of bad faith claims and stay discovery on the bad faith claims “would potentially create a discovery mess, requiring truncated depositions, Interrogatories, and Request for Production of Documents, only to have them all re-started following the conclusion of the first leg.” The court found that this risk of judicial inefficiency warranted a denial of the Motion to Sever and Stay the Bad Faith Claim. 

The court additionally rejected the Defendant’s request to sever and stay the bad faith claim as a request that “at root, [asks] the court to manipulate this case’s procedural framework in a way that will make litigation convenient for insurers, which the court will not do.” 

The court acknowledged that legitimate attorney/client privilege and work product issues could arise if the claims were allowed to proceed in conjunction. The court noted that the party’s interests issues by way of a Motions for Protective Order filed by the defense and/or Motion to Compel filed by the Plaintiff. 

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

Pennsylvania Supreme Court Denies Appeal From Superior Court's Affirmance of Judge Nealon's Entry of Summary Judgment in Slip and Fall Case

Tort Talkers may recall that , on June 21, 2018, there was a Tort Talk post regarding Judge Terrence R. Nealon’s entry of summary judgment in favor of the defendant in the slip and fall case of Wasnetsky v. Quinn’s Market, as well as another Tort Talk post on April 23, 2019, confirming that the Superior Court affirmed that decision.

As a further update, it is noted that, yesterday, January 2, 2020, the Pennsylvania Supreme Court denied plaintiff's petition for allowance of appeal.  Here is a LINK to the Supreme Court's Order in this regard.

This decision is notable for the fact that the trial court entered summary judgment after finding that the liability experts offered by the Plaintiff failed to offer concrete evidence as to what type of substance was allegedly on the floor of the supermarket that allegedly caused the Plaintiff to fall and suffer fatal head injuries.  The court held that, to allow the case to proceed, would have only served to allow for impermissible conjecture on the part of the jury on the causation issues.

To view the prior posts on this case, please go to Tort Talk at www.TortTalk.com and type the Plaintiff’s name into the Search Box in the upper right hand corner of the blog.

Res Ipsa Loquitur Doctrine Could Be Applied Regarding Foreign Object in Food

In the case of Watkins v. Gwaltney of Smithfield, Ltd., No. 3:2016-CV-02049 (M.D. Pa. Nov. 6, 2019 Mariani, J.), the court denied a motion for summary judgment filed by the defense in a case in which the Plaintiff alleges that he sustained fractured teeth and a cut tongue as a result of biting into a hot dog that contained a sharp metal blade.

Of note is that the court ruled that the doctrine of Res ipsa loquitur properly applies to a case involving the alleged presence of a metal knife blade in a hotdog.

The court noted that the Plaintiff testified that he did not do anything that could have introduced the blade into the hot dog. The court found that this adequately excluded other factors and allowed the doctrine Res ipsa loquitor to be applied.

Judge Mariani additionally ruled that the Defendant’s evidence that the Defendant did not use this type of blade in their production of hot dogs served to challenge the Plaintiff’s credibility and was an issue for the jury to decide, as opposed to be grounds for the entry of summary judgment.

On another unrelated issue in this case, the court ruled that, where the Plaintiff sought no discovery in this case, the Plaintiff could not seek discovery sanctions to bar Defendant’s witnesses for non-disclosure of information during the course of discovery.

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

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

PTSD May Constitute a "Bodily Injury" For a Claim for First Party Benefits

In the case of Evans v. Travelers Ins. Co., 2019 Pa. Super. 353 (Pa. Super. Dec. 4, 2019 Panella, P.J., Stevens, P.J.E., and Kunselman, J.), held that an insured who suffers from post-traumatic stress disorder may be covered under first party medical benefits following a motor vehicle accident under an analysis that such an injury constitutes a “bodily injury” under the policy when the disorder is accompanied by physical manifestations.

The automobile insurance policy at issue allowed the Plaintiff to pursue first party medical benefits if she sustained a bodily injury as a result of a motor vehicle accident.

The medical expenses allowed under this provision included expense related to care for psychological services. Bodily injury was defined as an illness, disease or death.

The carrier attempted to argue that the Plaintiff's PTSD was not a "bodily injury." As noted, this argument was rejected, particularly where, as here, the were issues of fact as to whether the Plaintiff had physical symptoms as a result of her PTSD.

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

Claim for Recklessness Rejected in Monroe County Rear End Accident Case

In the case of Vella v. Henderson, No. 873-CV-2019 (C.P. Monroe Co. Oct. 30, 2019 Williamson, J.), the court granted a Defendant’s Preliminary Objections against the Plaintiff’s Complaint on several grounds in a motor vehicle accident case. The Plaintiff was allowed to file an Amended Complaint.

On one issue, the Defendant argued that the Plaintiffs failed to properly plead a claim for punitive damages based upon allegations of recklessness.

The court granted this Preliminary Objections after finding that the Complaint did not contain any allegations that the Defendant either purposefully caused or willfully ignored the likelihood of a substantial risk in this rear-end accident case.

According to the Opinion, the Plaintiff alleged that the Defendant operated a motor vehicle at a high rate of speed, failed to reduce his speed to avoid a collision, failed to maintain a proper lookout, failed to maintain a safe distance, and failed to use due care in operating his motor vehicle.

The court noted that these allegations constituted nothing more than regular negligence. As such, the court ordered that the recklessness language in the Complaint be stricken.

The court otherwise noted that the Plaintiff’s Complaint was also too vague to allow the defense to mount an opposition to the case where the Plaintiff failed to identify which body parts were injured in the accident. Although the court noted that the description of injuries did not have to be detailed, the nature of the injuries was found to be insufficiently described in this Complaint.

The court also sustained a Preliminary Objection to the Complaint given that the Plaintiff did not verify the Complaint. Rather, the Plaintiffs’ attorney had signed the verification instead.

The court found that the Plaintiff had had a lengthy time to file their Complaint and did not provide any explanation for the improper verification.

As stated, the court did allow the Plaintiff to file an Amended Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 10, 2019).