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ELSESSER v. HOSPITAL OF THE PHILADELPHIA COLLEGE O

July 13, 1992

VIRGINIA ELSESSER and COURAGE VERZICCO, co-guardians of the Estate and Person of CAROLYN VERZICCO, an incompetent,
v.
HOSPITAL OF THE PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE, PARKVIEW DIVISION, a Pennsylvania Corp., et al.



The opinion of the court was delivered by: CHARLES R. WEINER

 Plaintiffs brought this personal injury action against a hospital, several doctors in the emergency room of the hospital, plaintiffs' incompetent's primary care physician, and United States Health Care Systems of Pennsylvania, Inc. ("U.S. Health Care"), a health maintenance organization. This action was originally commenced by plaintiffs in the Court of Common Pleas of Philadelphia County, then removed by defendant U.S. Health Care to this court. It arises out of personal injuries allegedly sustained by plaintiff Carolyn Verzicco ("Verzicco") as a result of care she received at the Hospital of the Philadelphia College of Osteopathic Medicine, Parkview Division ("Parkview") in connection with U.S. Health Care's selection of primary care physicians. U.S. Health Care has filed a Motion to Dismiss the Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. U.S. Health Care alleges that plaintiffs' state law claims asserted against it should be dismissed as preempted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. Plaintiffs have responded by filing a motion to remand the entire action to the state court on the basis that the state claims are not preempted by ERISA. For the reasons which follow, the motion to remand is granted and the motion to dismiss is denied.

 STANDARD

 In deciding a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6), we must accept as true the facts pleaded in the complaint and any reasonable inferences derived from those facts. Unger v. National Residents Matching Program, 928 F.2d 1392, 1400 (3rd Cir. 1991). The court is to construe the complaint in the light most favorable to the plaintiff. Colburn v. Upper Darby Township, 838 F.2d 663, 665 (3rd Cir. 1988). A claim should not be dismissed pursuant to Fed.R.Civ.P. Rule 12(b)(6) for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts to support her claim for relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Labov v. Lalley, 809 F.2d 220, 221-22 (3d Cir. 1987).

 FACTS

 The following factual account is set forth in accordance with the above standard:

 On July 30, 1990, Verzicco visited Dr. Harman's office complaining of chest pain, mild shortness of breath, and numbness in her shoulders lasting about twenty minutes. Dr. Harman measured Verzicco's blood pressure, which was 150/88, and took an electrocardiogram which revealed an abnormality in t-waves. Dr. Harman ordered blood tests and the use of a Halter Monitor. After approximately one day, Dr. Harman discontinued use of the Halter Monitor because he was told by U.S. Health Care that it would not pay for the service of the Halter Monitor. Dr. Harman did not read the results of the day Verzicco wore the Halter Monitor.

 On August 14, 1990, Verzicco began experiencing chest pains radiating across her shoulders, down her arm and up her neck. She went to the Emergency Room at the defendant Hospital of the Philadelphia College of Osteopathic Medicine, Parkview Division ("Parkview") where she was examined by the attending physicians, defendants Robert McAndrew, M.D. and Dr. Potman. Verzicco's blood pressure was 180/110 and the doctors ordered an electrocardiogram which showed evidence of anterior wall ischemia or infarction. Verzicco was given medication and was directed to return if her condition worsened. She was also instructed to contact Dr. Harman on Thursday, August 16, 1990.

 The following day, while driving her car, Verzicco experienced extreme chest pain and passed out. She was rushed to Parkview where prolonged resuscitative efforts were performed. However, Verzicco remained unconscious with cardiac arrest and to this day has not regained consciousness. Verzicco suffered irreversible anoxic encephalopathy, which is expected to last for the rest of her life. Verzicco remains at the Fox Nursing Home and Rehabilitation Center where she has been in a persistent vegetative state.

 Plaintiffs assert claims for negligence, misrepresentation, and breach of contract against U.S. Health Care with regard to the treatment rendered to Verzicco by her primary care physician. Specifically, plaintiffs claim:

 (1) All of the acts referred to above by all of the individual physicians and professional corporation physician, as well as, defendant, Parkview, are imputed to defendant, U.S. Health Care, particularly since plaintiff, Verzicco, looked to U.S. Health Care for care and U.S. Health Care held out Dr. Leonard Harman, P.C. and Leonard Harman, M.D. as its employee. Verzicco justifiably relied upon the care and skill of Leonard Harman, M.D. based, in part, upon the assurances of defendant, U.S. Health Care, that Dr. Leonard Harman, P.C. and Leonard Harman, M.D., the primary care physician, were competent and qualified;

 (2) U.S. Health Care failed to exercise reasonable care in selecting, retaining and evaluating plaintiff's primary care physician and, as a result of its failure to use such reasonable care, the risk of harm to plaintiff, Verzicco, was increased resulting in the injuries and damages as set forth herein, thus, subjecting it to liability pursuant to 323 of the Restatement of Torts 2d;

 (3) U.S. Health Care improperly instructed Leonard Harman, M.D. that it would not pay for the Halter Monitor causing him to discontinue its use after approximately one day and causing Dr. Harman to fail and refuse to read the results thereof, particularly when the continued use of the Halter Monitor was important for ...


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