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Stroud v. Abington Memorial Hospital

April 17, 2008

ROBERT STROUD, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JAMES H. STROUD, DECEASED, PLAINTIFF,
v.
ABINGTON MEMORIAL HOSPITAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

MEMORANDUM OPINION

This is a medical malpractice action that arises out of the death of plaintiff's decedent James H. Stroud ("James Stroud") on October 30, 2004. James Stroud had been admitted to Abington Memorial Hospital ("Hospital") on October 25, 2004 for a total right knee replacement. During the course of this and a second admission on October 29, 2004 he developed complications that ultimately lead to his death on October 30, 2004.*fn1

Plaintiff Robert Stroud ("Robert Stroud" or "Plaintiff"), James Stroud's son, in both his individual and representative capacity sued Hospital and defendants Joseph Cyril McAllister, M.D. ("Dr. McAllister"), Jeffrey L. Wanner, M.D. ("Dr. Wanner"), Abington Plaza Medical Associates ("Medical Associates"), John W. Breckenridge, M.D. ("Dr. Breckenridge"), Frank R. Domeracki, M.D. ("Dr. Domeracki"), Radiology Group of Abington, P.C. ("Radiology Group"), Andrew M. Star, M.D. ("Dr. Star"), Asif Ilyas, M.D. ("Dr. Ilyas"), Abington Orthopaedic Specialists, P.C. t/a Orthopaedic Specialty Center ("Orthopaedic Specialty"), Robert S. Charles, M.D. ("Dr. Charles"), and Urology Health Specialists -- Abington ("Urology Health"), all of whom in one way or another were involved in James Stroud's treatment and care.

Presently before us for decision is a motion to dismiss portions of Plaintiff's Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), brought by Hospital, Drs. McAllister, Wanner, Breckenridge, and Domeracki, Medical Associates, and Radiology Group (collectively, "Moving Defendants"). In this motion, Moving Defendants assert that:

(1) Plaintiff fails to state a claim for corporate negligence against Hospital in that he fails to sufficiently plead that Hospital knew or should have known that its procedures for ensuring proper patient care were deficient;

(2) Plaintiff's corporate negligence claim against Hospital is deficient in that he failed to timely file the Certificate of Merit ("COM") required as to that claim by Rule 1042.3 of the Pennsylvania Rules of Civil Procedure (the "COM requirement");

(3) Plaintiff's punitive damages claim is deficient to the extent that it is premised on the theory that Moving Defendants "covered up" their prior negligence in that punitive damages can only be awarded based on the conduct for which liability on the underlying tort is premised; and

(4) Plaintiff's punitive damages claim is deficient as to all Moving Defendants in that he fails to plead that they acted with at least a reckless mental state;

(5) Plaintiff's punitive damages claim is deficient as to Hospital to the extent that it is premised on a corporate negligence theory in that Plaintiff fails to plead the knowledge element necessary to impose punitive damages on such a theory; and

(6) Plaintiff's punitive damages claim is deficient as to Hospital to the extent that it is premised on a vicarious liability theory in that Plaintiff fails to plead the knowledge element necessary to impose punitive damages on such a theory.

For the reasons that follow, we find that Plaintiff's Second Amended Complaint adequately states a claim for corporate negligence against Hospital, but that it must be dismissed without prejudice because Plaintiff failed to file a timely COM. At the same time we will grant Plaintiff the opportunity to seek reinstatement of the claim to the extent that he can present specific evidence sufficient to establish a reasonable explanation or legitimate excuse for his noncompliance with the COM requirement.

We also find that Robert Stroud has sufficiently pled a punitive damages claim to survive a motion to dismiss, subject to two exceptions: (1) the punitive damages claim is dismissed with prejudice as legally insufficient to the extent that it is premised on the theory that Defendants "covered up" their prior negligence; and (2) the punitive damages claim against Hospital based on a corporate negligence theory will be dismissed without prejudice in light of Plaintiff's failure to comply with the COM requirement as to that claim, subject only to reinstatement if Plaintiff presents further evidence sufficient to establish a reasonable explanation or legitimate excuse for his noncompliance.

Accordingly, we dispose of this motion as follows. First, Hospital's motion to dismiss Plaintiff's corporate negligence claim as insufficiently pled is denied. Second, Hospital's motion to dismiss Plaintiff's corporate negligence claim for failure to timely file a COM is granted, subject to reinstatement if Plaintiff demonstrates a reasonable explanation or legitimate excuse for noncompliance. Third, Moving Defendants' motion to dismiss Plaintiff's punitive damages claim to the extent that it is premised on the theory that Moving Defendants covered up their prior negligence is granted. Fourth, Moving Defendants' motion to dismiss Plaintiff's punitive damages claim for failure to sufficiently plead a reckless mental state is denied. Fifth, Hospital's motion to dismiss Plaintiff's punitive damages claim against it based on corporate negligence is granted to the extent that the underlying claim is dismissed, but will be reinstated if the underlying corporate negligence claim is reinstated. Sixth and finally, Hospital's motion to dismiss Plaintiff's punitive damages claim against it based on vicarious liability is denied.

I. FACTUAL BACKGROUND

James Stroud was admitted to Hospital for a total right knee replacement on October 25, 2004. (Doc. 45 at 11, ¶ 46.) Following surgery, he remained at Hospital under the medical care of various of the defendants and others. (Id. at 11-14, ¶¶ 47-68.) Plaintiff alleges that during that time, James Stroud complained of nausea and failed to have a bowel movement. (See, e.g., id. at 11, ¶¶ 50, 52.) Plaintiff further alleges that, while various of the defendants and others examined and treated James Stroud, they failed to adequately diagnose and treat his emergent medical condition, later found to be a bowel obstruction or ileus. (Id. at 11-14, ¶¶ 51-68.)

Plaintiff specifically contends that Dr. Paul Crispen, a urology resident under the supervision of urologist Dr. Charles ordered an abdominal/pelvic CT scan to be performed on James Stroud on October 28, 2004 to investigate the cause of his lack of bowel movement. (Id. at 12, ¶ 58-59.) Robert Stroud avers that the CT scan revealed "marked dilation of the small and large bowel, representing either an obstruction or adynamic ileus," but that no action was taken in response to this finding of a potentially serious medical condition. (Id. at 14, ¶ 68-69.) Plaintiff attributes this inaction, at least in part, to the failure by the various treating medical professionals to communicate adequately concerning James Stroud's care and the failure by Hospital to have in place and enforce proper policies and procedures for interdepartmental communication. (See, e.g., id. at 19-21, ¶ 105(n), (q), (r), (aa)-(cc).)

That same day that the scan was performed, October 28, 2004, James Stroud was discharged from Hospital to a rehabilitation center. (Id. at 14, ¶ 70.) The following day, October 29, 2004, he complained of abdominal pain and began vomiting. (Id. at 15, ¶ 73.) He was taken to Hospital's emergency room early that afternoon and was subsequently readmitted. (Id. at 15-16, ¶¶ 74-80.) He was examined and additional diagnostic testing, including an abdominal x-ray series, was ordered, completed, and interpreted later that evening. (Id. at 16-17, ¶¶ 81-95.) By about 11:20 p.m. he began vomiting, became unresponsive, and was unable to be revived. (Id. at 17, ¶¶ 96-98.) He was pronounced dead at 12:08 a.m. on October 30, 2004. (Id. at 17, ¶ 98.)

II. PROCEDURAL POSTURE

Robert Stroud commenced this litigation by Complaint filed on October 30, 2006. (Doc. 1.)*fn2 This initial Complaint named only Hospital and Dr. McAllister as defendants and asserted negligence, survival, and wrongful death claims against them. (Id.)*fn3

On December 19, 2006, fifty days after the filing of the Complaint, Plaintiff filed a COM as to Hospital, attesting that: the claim that this defendant deviated from an acceptable, professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to [Plaintiff's counsel] that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.

(Doc. 7.) That same day, Plaintiff filed a COM as to Dr. McAllister, attesting that: an appropriate licensed professional has supplied a written statement to [Plaintiff's counsel] that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside the acceptable professional standards and that such conduct was a cause in bringing about the harm.

(See Doc. 6.)

On January 4, 2007, sixty-six days after Plaintiff filed the Complaint and sixteen days after he filed the COMs, Hospital and Dr. McAllister*fn4 filed a motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 8.) That motion asserted, among other things, that Robert Stroud filed timely to file a COM as to his corporate negligence claim against Hospital. (Id.)*fn5

On February 5, 2007, ninety-eight days after Robert Stroud filed the Complaint and forty- eight days after he filed the original COMs, he filed an amended COM as to Hospital. (Doc. 11.) The amended COM represented that "an appropriate licensed professional has supplied a written statement to [counsel] that there is a basis to conclude" that Hospital had committed professional negligence that caused plaintiff harm "and/or" that the claims against Hospital were "based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard." Together with the amended COM, Plaintiff filed a response in opposition to Hospital's motion to dismiss.*fn6 (Doc. 12.)

After the Court (by Judge Brody) granted leave, Robert Stroud filed an Amended Complaint. (Doc. 27.)*fn7 That Amended Complaint pled additional facts in support of his claims against Hospital and Dr. McAllister. (Id.) It also joined as defendants Medical Associates, Radiology Group, Orthopaedic Specialty, Urology Health, and Drs. Wanner, Breckenridge, Domeracki, Star, Ilyas, and Charles, pleading similar negligence claims against each of them, and adding them to the original survival and wrongful death claims. (Id.) The Amended Complaint also added a punitive damages claim collectively against all defendants. (Id.)

On June 4, 2007, Hospital and Dr. McAllister filed a motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6).*fn8 (Doc. 42.) Among other things, the motion again raised the COM issue as to the corporate negligence claim. Two days later, on June 6, 2007, Robert Stroud filed a Second Amended Complaint, which he contends differed from the Amended Complaint only insofar as it corrected the misnaming of Orthopaedic Specialty.*fn9 (Doc. 45.) Robert Stroud also filed new COMs as to Hospital and Dr. McAllister on June 7, 2007, 220 days after the original Complaint was filed. (Docs. 46 & 49.)*fn10

On June 22, 2007, Robert Stroud filed a response in opposition to the motion to dismiss his Amended Complaint by Hospital and Dr. McAllister. (Doc. 67.) Four days later, on June 26, 2007 Moving Defendants filed the motion to dismiss Plaintiff's Second Amended Complaint which is the subject of this opinion. (Doc. 69.)*fn11

On July 3, 2007, Plaintiff filed a motion to strike Moving Defendants' motion to dismiss the Second Amended Complaint, to which Moving Defendants responded in opposition. (See Docs. 77 & 82.) Following oral argument, this Court denied Plaintiff's motion to strike and granted leave for the parties to submit additional briefing on the motion to dismiss the Second Amended Complaint.

(Doc. 123.) Hospital submitted a supplemental letter brief on March 26, 2008, and Plaintiff submitted a responsive brief on April 1, 2008. (Docs. 125, 131.) Subject only to the reservation discussed in section III.A below, these matters are thus ripe for decision.

III. DISCUSSION

A. Although Robert Stroud States a Claim for Corporate Negligence against Hospital, the Claim Will Be Dismissed Without Prejudice Because He Failed to Comply with the COM Requirement, Unless He Can Establish a Reasonable Explanation or Legitimate Excuse for His Noncompliance

Hospital raises two arguments for dismissal of Robert Stroud's corporate negligence claims:

(1) that Plaintiff has failed to state a claim for corporate negligence; and (2) that he has failed to comply with the COM requirement as to the corporate negligence claim. While we find that Plaintiff has adequately pled a corporate negligence claim, we are nonetheless obligated to dismiss that claim without prejudice for his failure to timely comply with the COM requirement. At the same time, we will grant Plaintiff the opportunity to seek reinstatement to the extent that he can properly establish a reasonable explanation or legitimate excuse for his noncompliance.

Corporate negligence is a doctrine under which a hospital owes a direct duty to its patients to ensure their safety and well-being while at the hospital. See Thompson v. Nason Hosp., 591 A.2d 703, 707-08 (Pa. 1991) (adopting the corporate negligence doctrine in Pennsylvania jurisprudence). Under a corporate negligence theory, four general, non-delegable duties are imposed on the hospital:

(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;

(2) a duty to select and retain only competent physicians;

(3) a duty to oversee all persons who practice medicine within its walls as ...


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