BALJINDER S. MATHARU AND JESSICA A. MATHARU, INDIVIDUALLY AND AS ADMINISTRATORS OF THE ESTATE OF MILAN SINGH MATHARU, DECEASED, Appellees
SCOTT D. MUIR, D.O., FIORINA PELLEGRINO, D.O., HAZLETON WOMEN'S CARE CENTER AND MUIR OB/GYN ASSOCIATES, P.C., Appellants
Argued November 18, 2010
Appeal from the Order of the Court of Common Pleas, Luzerne County, Civil Division, No. 4462-2007. Before MUNDY, J.
Aaron S. Jayman, Camp Hill, for appellants.
Timothy A. Shollenberger, Enola for appellees.
BEFORE: FORD ELLIOTT, P.J., MUSMANNO [*], BENDER, BOWES, DONOHUE, SHOGAN, ALLEN, OLSON and OTT, JJ.
Scott D. Muir, D.O. (" Dr. Muir" ), Fiorina Pellegrino, D.O. (" Dr. Pellegrino" ), Hazelton Women's Care Center (" Hazelton" ) and Muir OB/GYN Associates, P.C. (" Muir Associates" ) (collectively, " Appellants" ) appeal from the order denying, in part, their motion for the entry of summary judgment against Baljinder S. Matharu (" Father" ) and Jessica A. Matharu (" Mother" ), individually and as Administrators of the Estate of Milan Singh Matharu (" Child" ) (collectively, " Appellees" ). This Court previously affirmed the trial court's order in an en banc decision dated June 28, 2011. On August 22, 2013, the Supreme Court of Pennsylvania vacated this decision and remanded the case to this Court for reconsideration in light of its decision in Seebold v. Prison Health Serv.,
__ Pa. __, 57 A.3d 1232 (2012). For the reasons set forth herein, we conclude that this case is distinguishable from Seebold. Accordingly, we again affirm the trial court's order.
In its written opinion, the trial court aptly summarized the relevant and undisputed factual background of this case:
1. The instant wrongful death/survival action was instituted by summons on April 25, 2007, followed by a Complaint on June 26, 2007.
2. An Answer and New Matter was filed by [Appellants] on October 4, 2007.
3. [Mother] gave birth to her first child [S.M.] on February 21, 1997.
4. [Mother's] pre-natal care for [S.M.] was rendered by a physician other than [Appellants] herein.
5. Blood work during the 1997 pregnancy indicated [that Mother] was Rh-negative.[FN].
[FN] The designation of Rh-negative blood is relevant because of the potential effect it has on future pregnancies. Where a mother's blood is Rh-negative and the father's blood is Rh-positive, a child can be conceived who is Rh-positive. Although the mother's and baby's bloodstream is [ sic ] separate, the baby's Rh-positive blood could enter the mother's system, causing the mother to create antibodies against the Rh factor and to treat the baby like an intruder. Under these conditions, the mother is said to be sensitized or iso-immunized. To prevent this, the mother is given an injection of Rh immunoglobulin known as RhoGAM at 28 weeks [of] gestation and again within 72 hours after birth if the baby is determined to be Rh-positive.
6. [Father] was determined in 1997 to be Rh-positive.
7. After [the] delivery of [S.M., Mother] was administered RhoGAM (Rh immunoglobulin).
8. In 1997, [Mother] was aware that she was Rh-negative and that she had been administered RhoGAM.
9. In 1998, [Mother] became pregnant again, and in May, 1998, came under the care of  Dr. Muir and Dr. Pellegrino, at  Hazleton Women's Care Center.
10. [Mother] was again found to be Rh-negative during this second pregnancy.
11. [Mother] was not given an injection of RhoGAM at 28 weeks [of] gestation on the second pregnancy.
12. [Mother] delivered her second child [Sandeep] on October 3, 1998.
13. [Mother] did not receive an injection of RhoGAM within 72 hours of this birth.
14. Following the birth of [Sandeep] and while [Mother] was still in the hospital, [Dr.] Muir told both [Mother and Father] that no RhoGAM had been administered to [Mother] and that she had become sensitized during the third trimester.
15. The discharge summary evidences a conversation between [Dr.] Muir and [Mother and Father] regarding the ramifications of Rh sensitization, including the effects on an unborn fetus. It further indicates that [Mother and Father] stated [that] they desired no more children. [Mother] was advised to seek early prenatal care at the next pregnancy.[FN]
[FN] Failing to administer RhoGAM is relevant because of the harmful effect it can have on future pregnancies.
16. Within a few weeks of [Sandeep's] birth, [Mother and Father] contacted a law firm[,] which sought to obtain a copy of [Dr.] Muir's medical chart on [Mother].
17. After consultation with a lawyer, and within two (2) years of [Sandeep's] birth, [Mother and Father] did not file a lawsuit regarding the failure to administer RhoGAM.
18. In 2000, [Mother] became pregnant again, but underwent an abortion at Allentown Women's Center. [None of the Appellants] provided any care or treatment for this pregnancy.
19. [Mother] did not receive RhoGAM at the time of her 2000 abortion.
20. In late 2001, [Mother] became pregnant a fourth time. She telephoned [Dr.] Muir and had a discussion with him regarding this pregnancy and her sensitization.
21. [Mother] returned to the care of [Appellants] on March 12, 200, at 14.3 weeks [of] gestation. [Dr.] Muir sent [Mother] to Lehigh Valley Hospital for consultation in the Department of Maternal Fetal Medicine.
22. On August 6, 2002, [Mother] gave birth to her fourth child, [M.], at Lehigh Valley Hospital.
23. The last chart note of any contact between [Mother] and [Appellants'] office is a call by [Mother] on July 29, 2002.
24. [Mother's] last office visit with [Appellants] was [on] July 8, 2002.
25. [Mother] never presented for a follow-up [post- partum] visit with [Appellants] after the birth of [M.].
26. Subsequent to this birth, [Dr.] Muir sent [Mother] a letter requesting her to schedule a post-partum appointment.
27. In and around March, 2003, after receiving no response, [Dr.] Muir sent a certified letter to [Mother] dismissing her from his practice. The letter was signed for and received by [Mother] on March 15, 2003.
28. As of March 15, 2003, [Mother] was no longer a patient of [Appellants] and no longer had a doctor-patient ...