Appeals from the Orders of the Administrator of Arbitration Panels for Health Care in case of Patricia M. Hoffner, in her own right; Charlotte and Joseph Hoffner, in their own right and as parents and natural guardians of Patricia M. Hoffner, and Michelle Hoffner, in her own right v. Claire Hodge, M.D.; Paoli Memorial Hospital; Jack C. White, M.D.; and William H. Beekley, M.D., No. M78-0212, dated November 14, 1978 and December 14, 1978.
James E. Beasley, with him Beasley, Hewson & Casey, for petitioners.
Jerry Zaslow, M.D., J.D., for respondent, Claire C. Hodge, M.D.
Raymond J. Falzone, Jr., with him John A. Luchsinger, and Luchsinger, Murphy & Noel, for respondent, Paoli Memorial Hospital.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Wilkinson, Jr. Concurring Opinion by Judge DiSalle.
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In this appeal, petitioners (plaintiffs) seek review of the orders of the Administrator of Arbitration Panels for Health Care (Administrator) which granted respondents' (defendants) preliminary objections*fn1 to paragraph 22 and Count IV of plaintiffs' Complaint brought under the provisions of the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.101 et seq. We affirm.
Plaintiffs' case, a medical malpractice action, arose out of a surgical procedure performed on plaintiff, Patricia Hoffner, on April 27, 1976. Plaintiffs Michelle Hoffner, Patricia's identical twin sister, and Charlotte and Joseph Hoffner, parents of the girls seek recovery for the "great pain and mental anguish" they suffered as a result of the allegedly negligent surgery and resulting injuries sustained by Patricia.
The Administrator dismissed the claims based on negligent infliction of emotional distress holding that such claims failed to state a cause of action recognized by the law of this Commonwealth. The Administrator rejected plaintiffs' claims on the authority of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), finding the plaintiffs were not in the "zone of danger" created by the alleged negligence.
As of July 11, 1979 Niederman, supra, no longer represents the law of the Commonwealth in this area. Sinn v. Burd, Pa. , 404 A.2d 672 (1979). In an attempt to eliminate the "arbitrariness" inherent
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in the "zone of danger" test, the Supreme Court substituted therefor an analysis based on the traditional tort law concept of foreseeability.
Justice Nix in Sinn, id. at 404 A.2d at 685 noted with approval the three factors found by the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968) to be determinative of whether the ...