United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
before the Court is a wrongful death and medical negligence
action brought by Plaintiffs, Amaris Ramos and Pedro Arce,
stemming from a series of events in early 2013 that
ultimately culminated in the death of Plaintiffs'
six-year-old child, Pedro Arce, Jr. Plaintiffs brought the
above captioned matter both as administrators of Pedro Arce,
Jr.'s estate and in their individual capacities.
Defendant, Dr. Anthony Sauter ("Moving Defendant"),
has moved to dismiss Plaintiff Ramos's claim for
negligent infliction of emotional distress pursuant to Rule
12(b)(6). (Doc. 18). For the reasons set forth below, the
Court will deny the Moving Defendant's Motion.
matter presents a somewhat muddled procedural history.
Plaintiffs originally filed their Complaint in the Court of
Common Pleas for Lackawanna County, Pennsylvania. As several
of the defendants named in the Complaint were employees of
the United States for purposes of the Federal Torts Claims
Act, 28 U.S.C. §§ 2671, ef seg, the United States
filed a Notice of Removal on April 16, 2015, and promptly
substituted itself as a defendant in place of its employees.
The United States then moved to dismiss Plaintiffs'
Complaint on the basis that Plaintiffs had failed to exhaust
their administrative remedies as required by the Federal
Torts Claims Act. Ultimately, Plaintiffs agreed that the
Complaint should be dismissed against the United States. This
Court dismissed the action against the United States,
retained jurisdiction over the state law claims against the
non-government defendants, and stayed the case pending
resolution of Plaintiffs' administrative claim.
19, 2016, after Plaintiffs' administrative claim was
denied, Plaintiffs filed a new civil action with a new
Complaint against all Defendants. (Doc. 1). Plaintiffs'
new action-the matter presently before this Court-and their
original action were eventually consolidated. Then, on
December 1, 2016, by agreement of the parties, Plaintiffs
voluntarily dismissed their original action in its entirety.
(Doc. 12). As a result, the May 19, 2016, Complaint is now
Plaintiffs' only operative complaint. That Complaint
names the following as defendants: the United States of
America, Moses Taylor Hospital, Scranton Quincy Hospital
Company, LLC,  Michael Ryan, D.O., Geisinger Community
Medical Center, Geisinger Medical Center, Geisinger Clinic,
and Anthony Sauter, M.D. (Doc. 1). The Complaint seeks recovery
for the following causes of action; negligence (Counts I-V),
corporate negligence (Count VI), wrongful death pursuant to
42 Pa. C.S. § 8301 (Count VII), a survival action
pursuant to 42 Pa. C.S. § 8302 (Count VIII), and
negligent infliction of emotional distress, (Counts
IV-X). (Doc. 1). Presently, the Moving Defendant
seeks dismissal of Count IV. (Doc. 18).
Complaint alleges the following facts:
January 29, 2013, Ms. Ramos brought her six-year-old son,
Pedro Arce, Jr., ("Pedro") to the Moses Taylor
Hospital Emergency Department with complaints of intermittent
fever, cough, sore throat, and congestion that had persisted
for the preceding five days. (Doc. 1 at ¶¶ 27-28).
Pedro was evaluated by a physician's assistant and/or Dr.
Anthony Sauter and underwent a chest x-ray. (Id. at
¶¶ 29, 31). The physician's assistant and/or
Dr. Sauter reviewed the chest x-ray, diagnosed Pedro with
acute pneumonia in his right lung (unilateral pneumonia), and
discharged him with a prescription for Cefdinir, an
antibiotic used to treat certain types of pneumonia.
(Id. at ¶¶ 31-32, 36). Cefdinir, however,
does not provide coverage for the treatment of atypical
pneumonias, including Mycoplasma pneumonia. (Id.
at¶ 39). Additionally, a radiologist reviewed
Pedro's chest x- rays and found that they were consistent
with pneumonia in both his lungs (bilateral pneumonia).
(Id. at ¶ 34). Despite there being a different
treatment regimen for bilateral pneumonia and unilateral
pneumonia, the discrepancies between Dr. Sauter's
diagnosis and the radiologist's impressions were never
resolved or communicated to Plaintiffs. (Id. at
February 4, 2013, when Pedro's condition had not
improved, his father, Mr. Arce, brought him back to the Moses
Taylor Hospital Emergency Department. (Id. at ¶
44). A new chest x-ray was performed and Pedro was diagnosed
with bilateral pneumonia. (Id. at ¶ 47). Pedro
was prescribed Clarithromycin, an antibiotic used to treat
atypical pneumonias, including Mycoplasma pneumonia.
(Id. at ¶¶ 4849). The next day, Mr. Arce
brought his son to Dr. Cecilia Ventura at the Scranton
Primary Health Care Center. (Id. at ¶ 52). Dr.
Ventura diagnosed Pedro with acute upper respiratory
infections, asthma with acute exacerbation, and acute serious
otitis media, but not pneumonia. (Id. at
¶¶ 55-56). Dr. Ventura discharged Pedro with
another prescription for Cefdinir and two nebulizer
solutions. (Id. at ¶ 57). Dr. Ventura
instructed Mr. Arce to give his son the Cefdinir and not the
February 6, 2013, Amaris Ramos brought her son back to Dr.
Ventura's office in severe respiratory distress.
(Id. at ¶ 63). Dr. Ventura diagnosed Pedro with
pneumonia and admitted him to Geisinger Community Medical
Center with orders to treat him with Rocephin, an antibiotic
that does not cover atypical pneumonias such as Mycoplasma
pneumonia. (Id. at ¶¶ 68, 72). After his
admission, Pedro's condition worsened with the
development of severe abdominal pain, a rash, signs of an
infection, and an increased respiratory rate. (Id.
at ¶ 77). On February 7, 2013, due to his worsening
condition, Pedro was transferred to the care of Dr. Michael
Ryan at Geisinger Medical Center. (Id. at
¶¶ 81, 83).
transferred to Geisinger Medical Center, Pedro's
physicians began to suspect that his condition may be caused
by Mycoplasma pneumonia, and one of his doctors ordered
Mycoplasma titers and blood cultures. (Id. at
¶¶ 84-85, 88-89). A resident under Dr. Ryan's
supervision also began to suspect that Pedro was developing
Stevens Johnson Syndrome ("SJS"). (Id. at
¶ 85). Initial treatment for SJS calls for the treatment
of the underlying cause or causes of the condition, and
Mycoplasma pneumonia is a well-known infections cause of SJS.
(Id. at ¶¶ 86-87). At this time, however,
Dr. Ryan did not treat Pedro with any antibiotics appropriate
for treating Mycoplasma pneumonia. (Id. at
¶¶ 88-89). By February 8, 2013, due to increased
respiratory distress, Pedro was transferred to the pediatric
intensive care unit at Geisinger Medical Center.
(Id. at ¶ 97).
condition continued to worsen on February 9, 2013, with the
development of a painful rash over much of his body, and
increased lipase levels indicative of pancreatitis.
(Id. at ¶¶ 110-111). His doctors continued
to suspect that he had SJS and that Mycoplasma may be the
underlying cause. (Id. at ¶¶ 110-113). The
next day, Pedro's Mycoplasma titers returned abnormally
high, indicating he had a Mycoplasma infection, and his
doctors began administering an antibiotic appropriate for
treating Mycoplasma pneumonia. (Id. at ¶¶
February 11, 2013, Pedro's doctor noted that he had SJS
with signs of liver failure and pancreatitis, most likely
caused by his Mycoplasma pneumonia. (Id. at¶
119). Although he was now receiving the appropriate
antibiotic treatment for Mycoplasma pneumonia, because
Pedro's illness had gone untreated for so long, his
condition continued to worsen. (Id. at ¶ 120).
That day, due to his failing liver, Pedro was transferred to
A.I. DuPont Hospital in Wilmington, Delaware. (Id.).
He remained at A.I. DuPont until February 18, 2013, when he
was transferred to St. Christopher's Hospital for
Children's burn unit for treatment of his skin