Karen Kneasal and Terrance Kneasel, h/w, v. Katherine E. Lupo, M.D., Roger Hine, M.D., Women’s Health Center of Lebanon, and Good Samaritan Hospital No. 2015-00128

Civil Action-Law-Medical Malpractice-Preliminary Objections-Pleading-Tortious Conduct-Corporate Negligence of Hospital-Res Ipsa Loquitur-Recklessness-Punitive Damages

Plaintiffs brought causes of action in negligence against Defendants pertaining to alleged injuries sustained by Plaintiff Karen Kneasel during a hysterectomy. Defendants filed preliminary objections to the Complaint, asserting that the language “tortious conduct” in the Complaint is overly broad, Plaintiffs failed to state a cause of action against Good Samaritan Hospital for corporate negligence, Plaintiffs’ invocation of the doctrine of res ipsa loquitur is legally insufficient and the allegations of recklessness in the Complaint that may subject Defendants to punitive damages are unsupported by the facts of the Complaint.

1. Inclusion of the language “tortious conduct” and “other tortious conduct” in the Complaint lacks the specificity required by Pa.R.C.P. Rule 1019(a) and leaves open the possibility that Plaintiffs may amend the pleadings to add new causes of action despite the expiration of the applicable statute of limitations.

2. Pennsylvania recognizes the doctrine of corporate negligence as a basis for hospital liability separate from the liability of the practitioners who actually rendered medical care to a patient.

3. A hospital directly is liable if it fails to uphold any of the following duties owed to a patient: (1) the maintenance of safe and adequate facilities and equipment; (2) the selection and retention of only competent physicians; (3) the oversight of all persons who practice medicine within its walls as to patient care; and (4) the formulation, adoption and enforcement of adequate rules and policies to ensure quality care.

4. To plead a cause of action in corporate negligence against a hospital, a plaintiff’s complaint must include allegations that: (1) the hospital deviated from the standard of care; (2) the hospital had actual or constructive notice of the defect; and (3) the hospital’s act or omission was a substantial factor in bringing about the harm.

5. A prima facie case for the type of corporate negligence claim alleged in this case typically involves a showing that a hospital employee had a duty to recognize and to report abnormalities in the treatment of a patient, the hospital employee should have informed the attending physician of the abnormality and the hospital employee should have informed the hospital of the abnormality when the attending physician failed to act so that the hospital could have taken corrective action.

6. The allegations in the Complaint for corporate negligence against Good Samaritan Hospital are factually deficient, as there are no factual allegations that point to any systemic problem with the hiring, supervision or regulations of Good Samaritan Hospital, no suggestion that any of the staff of the hospital knew or should have known of the errors alleged to have been committed by the physicians or systemic problems attributable to Good Samaritan Hospital that would have resulted in errors in Plaintiff Karen Kneasel’s treatment.

7. Under the doctrine of res ipsa loquitur, it may be inferred that the harm suffered by the plaintiff was caused by the negligence of the defendant when the event is of a kind that ordinarily does not occur in the absence of negligence, other responsible causes, including the conduct of the plaintiff and third parties, sufficiently are eliminated by the evidence and the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

8. Three conditions must be met before the doctrine of res ipsa loquitur may be invoked: (1) either a layperson is able to determine as a matter of common knowledge or an expert testifies that the result does not ordinarily occur in the absence of negligence; (2) the agent or instrumentality causing the harm was within the exclusive control of the defendant; and (3) the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event.

9. Res ipsa loquitur is a rule of evidence and need not be averred as a separate cause of action.

10. Since the allegations of the Complaint serve to notify Good Samaritan Hospital of Plaintiffs’ intent to rely on the evidentiary rule of res ipsa loquitur at trial, the allegations of the Complaint may stand with the Court making no determination at this point whether the doctrine will be applicable at trial.

11. There is no separate cause of action for recklessness. Rather, the term recklessness merely describes a degree of conduct that may be attributed to a party.

12. Punitive damages may be awarded for conduct that is the result of a health care provider’s willful or wanton conduct or reckless indifference to the rights of others. A punitive damages claim must be supported by evidence sufficient to establish that a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and he or she acted, or failed to act, in conscious disregard of that risk.

13. Viewing the allegations of the Complaint as true, the averments that the physicians proceeded with a laparoscopic procedure despite knowing they were unable to visual the internal anatomy and should have realized that doing so could result in serious injuries could constitute recklessness and will not be stricken from the Complaint as a result.

L.C.C.C.P. No. 2015-00128, Opinion by John C. Tylwalk, President Judge, January 11, 2016.

IN THE COURT OF COMMON PLES OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION NO. 2015-00128

KAREN KNEASEL and TERENCE KNEASEL, h/w,

v.

KATHERINE E. LUPO, M.D., ROGER HINE, M.D., WOMEN’S HEALTH CENTER OF LEBANON, LTD, THE GOOD SAMARITAN HEALTH SERVICES FOUNDATION d/b/a GOOD SAMARITAN HEALTH SYSTEN and GOOD SAMARITAN HOSPITAL

APPEARANCES:

SLADE H. MCLAUGHLIN, ESQUIRE FOR PLAINTIFFS

MCLAUGHLIN & LAURICELLA, P.C.

MICHAEL D. PIPA, ESQUIRE FOR KATHERINE E. LUPO, M.D.,

STEVENS & LEE, P.C. ROGER HINE, M.D., and

WOMEN’S HEALTH CENTER

OF LEBANON, LTD.

CRAIG A. STONE, ESQUIRE FOR THE GOOD SAMARITAN HEALTH MARSHALL, DENNEHEY, WARNER, SERVICES FOUNDATION d/b/a

COLEMAN & GOGGIN GOOD SAMARITAN HEALTH

SYSTEM and GOOD SAMARITAN

HOSPITAL

ORDER OF COURT

AND NOW, this 11^th day of January, 2016, the following is the Order of this Court:

(I.) Upon consideration of the Preliminary Objections of Defendant

Good Samaritan Hospital, Plaintiffs’ response thereto, the Briefs submitted by the parties, and Oral Argument, it is hereby ordered that said Preliminary Objections are SUSTAINED, in part, and OVERRULED, in part:

1. The Preliminary Objections to the language “tortious conduct” and “other tortious conduct” is SUSTAINED. This language is stricken from Paragraphs 36, 74, 89, and 91 of the Complaint;

2. The Preliminary Objection with regard to Plaintiffs’ cause of action in corporate negligence of Good Samaritan Hospital is SUSTAINED and this claim is dismissed. Plaintiffs are afforded twenty (20) days to amend the Complaint to set forth facts sufficient to support this cause of action.

3. The Preliminary Objections to Plaintiffs’ allegations of res ipsa loquitur at Paragraphs 66 and 70 are OVERRULED;

4. Defendant’s Preliminary Objection to the allegations of “recklessness” at Paragraphs 36, 54, 63, 65, 67, 69, 71, and 73 are OVERRULED.

(II.) With regard to the Preliminary Objections of Katherine E. Lupo,

M.D., Roger Hine, M.D., and the Women’s Health Center of Lebanon, Ltd., Plaintiffs’ response thereto, the Briefs submitted by the parties, and Oral Argument, it is hereby Ordered that said Preliminary Objections are SUSTAINED, in part, and OVERRULED, in part:

1. Defendant’s Preliminary Objections to the allegations of “recklessness” at Paragraphs 36, 54, 63, 65, 67, 69, 71, 75, 77, 79, and 93 are OVERRULED;

2. Defendants’ Preliminary Objection to the language “other tortious conduct” is SUSTAINED. This language is stricken from Paragraphs 36 and 64 of the Complaint. Defendants’ Preliminary Objections to Paragraphs 65(d)(p) and 69(d)(p) are SUSTAINED. Plaintiffs are afforded twenty days to amend their Complaint in order to set forth these allegations with more specificity. Defendants’ Preliminary Objections to Paragraphs 65(j), 66, 69(j), and 70 are OVERRULED.

3. Defendants’ Preliminary Objection to Plaintiffs’ claim of the vicarious liability of Women’s Health Center, Ltd. for lack of informed consent is SUSTAINED. This claim is stricken from the Complaint. BY THE COURT:

JOHN C. TYLWALK, P.J.

OPINION, TYLWALK, P.J., JANUARY 11, 2016.

Plaintiffs Karen Kneasel (“Karen”) and Terence Kneasel (“Terence”), husband and wife, filed this medical malpractice action seeking damages for injuries to Karen’s bladder and urinary tract which she allegedly sustained during a laparoscopic vaginal hysterectomy performed by Defendants Katherine E. Lupo, M.D. (“Dr. Lupo”) and Roger Hine, M.D. (“Dr. Hine”) on June 18, 2014 at Good Samaritan Hospital. Plaintiffs claim that the injuries occurred when Drs. Lupo and Hine were unable to properly visualize Karen’s internal anatomy during the laparoscopic procedure and that they should have converted to an open procedure instead of proceeding laparoscopically. It is alleged that during the procedure, Karen sustained a large laceration to her bladder and the front of her bladder was improperly sutured to the back. Karen was subsequently transferred to Hershey Medical Center where she had exploratory procedures and treatment and was placed in intensive care.

Plaintiffs’ Complaint asserts that the injuries and damages were “proximately caused by the negligence, carelessness, recklessness, and other tortious conduct of all of the defendants, acting individually, and/or through their respective agents, servants, and employees, as set forth in this Complaint. (Complaint, ¶36) Plaintiffs also allege a cause of action for lack of informed consent against Drs. Lupo and Hine and their medical practice, Women’s Health Center of Lebanon, Ltd. (“Women’s Health Center”). Certificates of merit have been filed as to all defendants.

The parties have filed a Stipulation whereby it was agreed that Defendant Good Samaritan Health Services Foundation d/b/a Good Samaritan Health System was dismissed from this suit without prejudice. Good Samaritan Hospital (“GSH”) and Plaintiffs have also agreed that Plaintiffs would not pursue a vicarious liability against GSH based on the failure of Drs. Lupo and Hine to obtain informed consent and GSH would not pursue preliminary objections asserting Plaintiffs’ intermingling of claims of vicarious liability and direct corporate negligence against GSH.

GSH has filed Preliminary Objections asserting that certain portions of the Complaint should be stricken and that Plaintiffs have failed to state a cause of action against GSH for corporate negligence. Drs. Lupo and Hine and Women’s Health Center have also filed Preliminary Objections requesting that various allegations of the Complaint be stricken and that Plaintiffs’ vicarious claim against Women’s Health Center for informed consent be dismissed. Both sets of Preliminary Objections are before us for resolution.

PRELIMINARY OBJECTIONS OF GSH

Overly Broad Allegations

Throughout the Complaint, Plaintiffs charge GSH with negligence, recklessness, “tortious conduct,” and “other tortious conduct:”

36. Plaintiffs’ injuries and damages were proximately caused by the

negligence, carelessness, and other tortious conduct of all of the defendants, acting individually, and/or through their respective agents, servants, and employees, as set forth in this Complaint.

74. The injuries, losses, and damages suffered by plaintiff, as described in this Complaint, are a direct and proximate result of the negligence, carelessness, and tortious conduct of defendant, Good Samaritan Hospital, and are not due to any act, or failure to act, on the part of plaintiff.

89. As a direct and proximate result of the negligence, carelessness, and tortious conduct of the defendant, Good Samaritan Hospital, as more fully set forth in this Complaint, Karen Kneasel suffered, and will continue to suffer, the injuries and damages set forth earlier in this Complaint.]

91. As a direct and proximate result of the vicarious negligence, carelessness, and tortious conduct of the defendant, Good Samaritan Health System, as more fully set forth in this Complaint, Karen Kneasel suffered, and will continue to suffer, the injuries and damages set forth earlier in this Complaint.

(Complaint, ¶¶36, 74, 89, 91)

GSH argues that the language “tortious conduct” and “other tortious conduct” lacks the specificity required by Pa.R.C.P. No. 1019(a) and that its inclusion leaves open the possibility that Plaintiffs will amend the pleading to add new causes of action despite the expiration of the applicable limitations period in accord with Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983). Plaintiffs argue that this language must be read in conjunction with the entire Complaint and that these phrases refer to Plaintiffs’ other claims which are not based on negligence, carelessness, or recklessness, such as their claim of lack of informed consent, and poses no potential for the addition of other claims.

We agree with GSH that this language is overly broad and lacks the specificity required by the Pennsylvania rules regarding pleading. If, as claimed by Plaintiffs, these phrases simply refer to conduct which is already referred to elsewhere in the Complaint, then this language is superfluous. Regardless, if permitted to remain in the Complaint, these open-ended averments could potentially be used to permit Plaintiffs to assert other claims beyond the statutory limitation period. If Plaintiffs had wished to refer to specific claims, such as lack of informed consent, they were required to specifically identify those claims. As these allegations are, GSH is not apprised of the exact claims lodged against it and is unable to prepare its defense to such claims. Thus, we will grant this Preliminary Objection and strike this language from the Complaint.

Failure to state a claim in corporate negligence

GSH next argues that Plaintiffs have failed to state a cause of action against GSH for corporate negligence. Pa.R.C.P. No. 1019(a) requires that a party state the material facts upon which it bases its cause of action in a concise and summary form in a complaint. Pa.R.C.P. No. 1028(a)(4) permits a demurrer based on the legal insufficiency of a pleading. In resolving a preliminary objection in the nature of a demurrer, a court should sustain the objection only when it is clear and free from doubt that the facts pleaded that the pleader will be unable to provie facts legally sufficient to establish the right to relief. Bourke v. Kazarus, 746 A.2d 642 (Pa. Super. 2000). The question presented on a demurrer is whether, on the facts, averred, the law says with certainty that no recovery is possible. Bailey v. Storlazzi, 729 A.2d 1206 (Pa. Super. 1999). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, and relevant facts. County of Allegheny v. Commonwealth of Pennsylvania, 490 A.2d 402 (Pa. 1985).

Pennsylvania recognizes the doctrine of corporate negligence as a basis for hospital liability separate from the liability of the practitioners who actually have rendered medical care to a patient. Brodkowski v. Ryave, 885 A.2d 1045 (Pa. Super. 2005). A hospital is directly liable if it fails to uphold any of the following duties which are owed to its patients: (1) the maintenance of safe and adequate facilities and equipment, (2) the selection and retention of only competent physicians, (3) to oversee all persons who practice medicine within its walls as to patient care, and (4) the formulation, adoption and enforcement of adequate rules and policies to ensure quality care. Thompson v. Nason Hospital, 591 A.2d 703 (Pa. 1991). To plead corporate negligence against a hospital, a plaintiff’s complaint must include allegations that, if accepted as true, would prove that: (1) the hospital deviated from the standard of care, (2) the hospital had actual/constructive notice of the defect/procedure, and (3) the hospital’s act or omission was a substantial factor in bringing about the harm. Kennedy v. Butler Memorial Hospital, 901 A.2d 1042 (Pa. Super. 2006) GSH’s demurrer charges that Plaintiffs have failed to satisfy these requirements.

GSH argues that when a cause of action for corporate negligence arises from the specific acts of individual hospital employees the plaintiff must plead facts to answer the question of why a hospital should have known of the alleged breach of duty. GSH argues that Plaintiffs’ claim for corporate negligence is based solely on the actions of Drs. Lupo and Hine and that Plaintiffs have failed to include any factual allegations that GSH, as a corporation, knew or should have known, of the alleged negligent actions of the two physicians during Karen’s surgery. It argues that Plaintiffs are, in essence, merely attempting to twist an erroneous surgical judgment on the part of Drs. Lupo and Hine into a corporate negligence claim against GSH.

A prima facie case for the type of corporate negligence claim alleged by Plaintiffs here typically involves a showing that a hospital employee had a duty to recognize and report abnormalities in the treatment of a patient, that the hospital employee should have informed the attending physician of the abnormality, and that the hospital employee should have informed the hospital of the abnormality when the attending physician failed to act so that the hospital could have taken corrective action. Welsh v. Bulger, 698 A.2d 581, 587 (Pa. 1997), citing Thompson, 591 A.2d at 709 . For example, Plaintiffs note that in Welsh, the court found that the plaintiff had established a prima facie case in corporate negligence where the evidence tended to establish that nurses involved in the plaintiff’s care must have known that her labor was progressing too rapidly, that she needed a Caesarean delivery, and that the physician failed to direct appropriate intervention.

Similarly, in Brodkowski v. Ryave, 885 A.2d 1045 (Pa. Super. 2005), the plaintiff sought treatment at Montgomery Hospital with complaints which were consistent with both a stroke and a psychiatric condition. After being examined by various doctors who recommended a neurology consult, she was admitted to the hospital psychiatric unit without first having a medical cause for her symptoms ruled out. After she signed herself out of the psychiatric unit, she went to another hospital where she was found to have suffered a stroke. The lower court dismissed the plaintiff’s cause of action in corporate negligence prior to trial on the basis that the plaintiff’s expert evidence revealed only the negligence of individual doctors and not a systemic breakdown in the hospital’s procedures which led to her improper treatment. In addressing the plaintiff’s contention that the lower court had improperly dismissed the corporate negligence claim, the Superior Court noted that the plaintiff had presented sufficient expert evidence of a breakdown of triage at the time plaintiff presented to the hospital. With regard to the issue of notice, the Superior Court noted:

. .. Thus, with regard to constructive notice: It is well settled that a hospital staff member or employee has a duty to recognize and report abnormalities in the treatment and condition of its patients. If the attending physician fails to act in accordance with standard medical practice, it is incumbent upon the hospital staff to so advise hospital authorities in order that appropriate action might be taken. A hospital is properly charged with constructive notice when it “should have known” of the patient’s condition. Furthermore, constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision. We interpret “failure to enforce adequate rules and policies” as an analog to “failure to provide adequate supervision.”

… For example, a hospital will be charged with constructive notice when its nurses should have known about a patient’s adverse condition, but failed to act. … In such cases, we have said the “constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision.” …

Id. at 1057-1060 (citations omitted). The Superior Court remanded for a new trial on the issue of the hospital’s corporate liability.

Plaintiffs agree that a plaintiff seeking to hold a hospital accountable for the acts of its physicians on a theory of corporate negligence must aver that the hospital knew or should have known about the care at issue. However, they explain that they seek to hold GSH only vicariously accountable for the conduct of Drs. Lupo and Hine, and that their corporate negligence claim is based on GSH’s own deficiencies with regard to the selection of competent physicians and the lack of appropriate rules and policies. They claim that it is not necessary for them to plead GSH’s failure to properly assess the doctors’ competence under that theory and that that the Complaint sufficiently states a claim not only for GSH’s vicarious liability for the acts of Drs. Lupo and Hine, but also in corporate negligence for GSH’s own breaches of duty.

In the Complaint, Plaintiffs allege that Drs. Lupo and Hine recognized their inability to visualize Karen’s internal anatomy at an early stage of the laparoscopic procedure, but decided to go forward laparoscopically when they should have converted to an open procedure. (Complaint, ¶ 54). It is unclear from the allegations of the Complaint whether this alleged error was communicated to or noted by other GSH staff who should have recognized the alleged error and reported it to a superior. Plaintiffs argue that the Complaint contains sufficient allegations with regard to GSH’s own negligence with regard to the failure to select and retain competent physicians and the failure to have appropriate rules and policies in place. In Paragraph 73, Plaintiffs set forth a generalized list of GSH’s alleged breaches of the duties imposed upon hospitals. However, we find the Complaint to be factually deficient in this regard. We can find no factual allegations which point to any systemic problem with GSH’s supervision, hiring, or regulations, as required for corporate liability under Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991). While there may have been errors during the time of Karen’s care beyond that of Drs. Lupo and Hine, nothing to that effect has been pled in the Complaint. There was no suggestion that any other staff knew or should have known of any the errors allegedly committed by Drs. Lupo and Hine and there is no showing of any systemic problems attributable to GSH that would have resulted in any errors in Karen’s treatment. Thus, we agree that the Complaint fails to allege a claim in direct corporate liability against GSH and will sustain this Preliminary Objection.

Allegations of Res Ipsa Loquitur

In Paragraph 65 of the Complaint, Plaintiffs set forth a lengthy list of

Dr. Lupo’s alleged “negligence, carelessness, and recklessness.” (Complaint, ¶65(a)-(t)). Paragraph 66 of the Complaint provides that “[b]ecause the injuries sustained by Mrs. Kneasel do not ordinarily occur in the absence of negligence, plaintiff invokes the Doctrine of Res Ipsa Loquitur. (Complaint, ¶66) In Paragraph 69, Plaintiffs provide an equally lengthy list of the Dr. Hine’s alleged “negligence, carelessness, and recklessness.” (Complaint, ¶69(a)-(t)) Paragraph 70 likewise provides that “[b]ecause the injuries sustained by Mrs. Kneasel do not ordinarily occur in the absence of negligence, Plaintiff invokes the Doctrine of Res Ipsa Loquitur.” (Complaint, ¶70) GSH has filed a Preliminary Objection in the nature of a demurrer to these allegations, arguing that the facts are legally insufficient to support claims for res ipsa loquitur and that Plaintiffs should not be relieved of their burden to prove negligence against GSH at trial.

Section 328D of the Restatement (Second) of Torts, titled Res Ipsa Loquitur, which was adopted by the Pennsylvania Supreme Court in Gilbert v. Korvette, Inc., 327 A.2d 94 (Pa. 1974), provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

In order to get to the jury, a plaintiff must by a preponderance of the evidence prove all the elements enumerated in subsection (1). Hollywood Shop, Inc. v. Pennsylvania Gas and Water Company, 411 A.2d 245 (Pa. Super. 1979). This doctrine was first applied to medical malpractice cases in Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134 (1981).

Res Ipsa Loquitur is a rule of evidence and may not be averred as a separate cause of action. D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318 (Pa. Super. 1998); Gamble v. Corallo, 2003 WL 2596180 (Lanc. Cnty. C.C.P. 2003). A plaintiff may rely on this doctrine under a general allegation of negligence and it is not necessary for the plaintiff to have pled the doctrine in order to invoke its applicability at trial. Id. Although it is not necessary to plead res ipsa loquitur, the reference to it in a complaint places the defendant on notice that a plaintiff is alleging negligence generally and that he intends to use the evidentiary rule to prove the alleged negligence; it is generally unnecessary to strike such an allegation as long as it is not averred as a separate cause of action. D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d at 320; Gamble v. Corallo, supra. An opposing party may treat the pleading of such evidentiary matters as merely superfluous assertions in a complaint. Armstrong Cork Company v. Kimmel, 2 Pa. D. & C. 2d 175 (Lanc. Cnty. C.P. 1954).

Under Section 328A, there are two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have occurred without negligence, and the second, the reliance upon expert medical knowledge that the event would not have occurred without negligence. Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140 (Pa. 2003). Three conditions must be met before this doctrine may be invoked: (a) either a layperson is able to determine as a matter of common knowledge, or an expert testifies, that the result does not ordinarily occur in the absence of negligence; (b) the agent or instrumentality causing the harm was within the exclusive control of the defendant; and (c) the evidence offered is sufficient to remove the causation question from the realm of conjecture, but not so substantial that it provides a full and complete explanation of the event. Id. Only when each of these three conditions are satisfied can an inference of negligence be drawn from the occurrence of an injurious event. Id.

We do not read Plaintiffs’ allegations regarding res ipsa loquitur as averring separate causes of action and Plaintiffs acknowledge that their pleading simply serves to notify GSH of their intent to rely on this evidentiary rule at trial. Therefore, we will overrule GSH’s Preliminary Objection and permit the allegations of Paragraphs 66 and 70 to stand. However, we make no determination at this point as to the applicability of the doctrine. Although Plaintiffs are free to request jury instructions at the time when the applicability of the doctrine may be determined, it does not follow that they are guaranteed a jury instruction to this effect by their pleading unless the evidence warrants such an instruction.

Allegations of Recklessness

Throughout the Complaint, Plaintiffs allege that all the Defendants, including GSH, acted with “recklessness” in Paragraphs 36, 54, 63, 65, 67, 69, 71, and 73 (as to GSH in particular and to the claims against it for vicarious liability and direct corporate negligence), and 75. GSH notes that by this language, Plaintiffs may attempt to assert a claim for punitive damages against GSH. GSH complains that the facts alleged do not support any implication that GSH engaged in the type of conduct necessary for the recovery of such a claim. It argues that this case involves only an unintentional injury which occurred during a hysterectomy and in no manner implies that GSH knowingly allowed any “willful, wanton, or recklessly indifferent” conduct on the part of its alleged agents, Drs. Lupo and Hine.

Plaintiffs aver that Drs. Lupo and Hine knew or had reason to know that they were subjecting Karen to an unreasonable risk of serious injury when they continued with the laparoscopic procedure despite knowing that they could not properly identify Karen’s bladder and the surrounding internal structures and that this posed a possibility that Karen could suffer serious injury as a result. It is further alleged that they made a conscious decision to disregard the risk of the potential for serious injury posed by this situation when they decided to continue laparoscopically. Plaintiffs counter that they have not asserted a claim for punitive damages at this juncture, but that they may seek to amend the Complaint to include such a claim upon the conclusion of discovery. They argue that a determination of the sufficiency of such a claim is improper at this point in the proceedings and that the allegations of recklessness should be permitted to remain in the Complaint.

Under Pennsylvania law there is no cause of action for and/or entitled “recklessness.” Yancy v. Alliance Imaging, Inc., 2003 WL 25514702 (Allegheny Cnty.C.C.P. 2003). Rather, the term “recklessness” merely describes a degree of conduct that may be attributed to a party. Id. In Archibald v. Kemble, 971 A.2d 513 (pa. Super. 2009), the Pennsylvania Superior Court explained:

Recklessness, or willfulness, or wantonness refers to a degree of care Prosser describes as “aggravated negligence.” Nevertheless, “[t]hey apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be treated in many respects as if it were so intended.” W. Page Keeton et al., Prosser and Keeton on Torts § 34 (5th ed. 1984). In this case, even though we hold Archibald must prove Kemble acted recklessly, the cause of action remains sounding in negligence. Cf. Stubbs v. Frazer, 308 Pa.Super. 257, 454 A.2d 119 (1982). Therefore, merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations. The trial judge was correct in ruling the degree of care is recklessness. He erred in concluding that Archibalds’ cause of action was not subsumed within the negligence count pled in their Complaint.

Id. at 519.

In Mellor v. O’Brien, 2012 WL 407389 (Lackawanna Cnty. C.C.P. 2012), the court engaged in a thorough discussion of the issue of allegations of “recklessness” and the award of punitive damages in a medical malpractice action:

The recovery of punitive damages in medical malpractice litigation is governed by Section 505 of the Medical Care Availability and Reduction of Error (MCare Act), 40 P.S. §1303.505,… . … Section 505(a) of the MCare Act provides that punitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 P.S. §1303.505(a). However, in the context of a medical negligence claim, “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 P.S. §1303.505(b).

…[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) [s]he acted, or failed to act, as the case may be, in conscious disregard of that risk.” … Since professional negligence actions involve allegations that health care professionals deviated from the governing standard of care, … punitive damages are generally not recoverable in malpractice actions unless the medical “provider’s deviation from the applicable standard of care is so egregious as to evince a conscious or reckless disregard of a patent risk of harm to the patient.” ….

2012 WL 407389 at 6 (citations omitted). The court went on to examine a number of circumstances where such conduct was alleged in a medical malpractice action:

Whether the conduct of a malpractice defendant rises to the level of willful, wanton or recklessly indifferent conduct under 40 P.S. §1303.505(a) depends upon the particular circumstances at issue. See e.g., Lasavage v. Smith, 2011 WL 1560035 (Lacka. Co. 2011) (allegations that physician failed to ensure that patient received two medications to prevent clotting, as ordered, while in hospital after cardiac catheterization procedure, that he failed to ascertain whether patient was prescribed the medications upon his discharge, and that he failed to consult on patient’s care when requested to do so by another hospital after patient was readmitted to that hospital the same night he was discharged by physician, were sufficient to withstand demurrer to punitive damages claim); Klonoski v. Farrell, 103 Lacka. Jur. 179, 184-185 (2002) (allegations that physician consciously overbooked his surgical schedule for financial reasons and thereby performed surgery hastily and without first reviewing pre-operative diagnostic testing results were sufficient to withstand demurrer to punitive damages claim); Zazzera, 54 D. & C. 4^th at 234-235 (preliminary objections to punitive damages claim overruled where surgeon erroneously operated on healthy left carotid artery despite earlier ultrasound that he reviewed which revealed that patient’s right carotid artery was stenosed and in need of endarterectomy); Scott, 102 Lacka. Jur. at 451 (averments that obstetrician (a) left hospital grounds to return to her private office even though she knew that her patient’s labor was not being properly monitored, (b) blatantly ignored the advice of a consulting perinatologist regarding the need for an immediate Cesarean delivery, and (c) inexplicably delayed the start of the recommended delivery for more than three hours, adequately averred a claim for punitive damages). Compare, Wagner, supra at * 6 (contentions that physician failed to prescribe antibiotics, order certain tests or request an infectious disease consult constituted “nothing more than ordinary negligence and are insufficient to support an award of punitive damages.”); Dean v. Community Medical Center, 46 D. & C. 4^th 334, 345-346 (Lacka. Co. 2000) (dismissing punitive damages claim based upon allegations that cardiologist erroneously diagnosed decedent’s condition and performed invasive procedure without first administering SBE prophylactic antibiotics).

Id. at 6 – 7.

… Reckless misconduct does not require the actor to intend to cause the harm which results from his intentional act; rather, “[i]t is enough that he realizes or, from the facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless.” …

While the foregoing authority directly addresses the type of proof required to support a finding of wantonness or recklessness and a concomitant award of punitive damages, some courts have likewise required specific factual averments of such conduct in order to withstand preliminary objections to recklessness allegations and claims for punitive damages. Several Pennsylvania trial courts have sustained demurrers to punitive damages claims which lack factual allegations supporting a finding of wanton or reckless conduct. …

…

Following Archibald, a party may apparently aver recklessness generally under Rule 1019(b). That being the case, defense challenges to charges of recklessness and claims for punitive damages should be deferred to pre-trial motions for summary judgment or trial motions for compulsory nonsuit. … Although Section 505(a) merely incorporates earlier common law governing punitive damages, Section 505(c) of the MCare Act heightens the burden of proof applicable to vicarious liability for punitive damages. Pennsylvania case law exposes a principal to vicarious liability for punitive damages based upon the conduct of an agent even if the agent did not commit the act at the direction of the principal, or the principal did not ratify the act. … In contrast, Section 505(c) of the MCare Act states that “[p]unitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. §1303.505(c). With the advent of Section 505(c) “…and its injection of a scienter element into the respondeat superior equation, a health care provider may not be vicariously liable for exemplary damages unless it had actual knowledge of the wrongful conduct of its agent and nevertheless allowed it to occur. … By virtue of this heightened standard of proof for vicarious liability, a patient must now establish that the health care principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allowed that conduct to proceed unabated. …

Id. at 7 – 9 (citations omitted).

Plaintiffs are permitted to allege facts which could constitute recklessness in this negligence action. In resolving these Preliminary Objections, we must refer to the conduct alleged, and not the label placed on such conduct by the Plaintiffs. After viewing the allegations of the Complaint as true, we believe that the averments that Drs. Lupo and Hine proceeded with the laparoscopic procedure despite knowing they were unable to visualize the internal anatomy and that they should have realized that doing so could result in serious injuries, if proven, could certainly constitute recklessness on their part. Therefore, we will overrule this Preliminary Objection and deny GSH’s motion to strike these allegations from the Complaint. Plaintiffs have not asserted a request for an award of punitive damages at this point but indicate that they may do so if the facts revealed during discovery support such a claim. Thus, we make no determination as to whether Plaintiffs have pled sufficient facts which, if proven, would support GSH’s potential vicarious liability for punitive damages under Section 505(c) of the MCare Act.

PRELIMINARY OBJECTIONS OF DRS. LUPO AND HINE AND WOMEN’S HEALTH CENTER

Claim for Punitive Damages

Drs. Lupo and Hine and Women’s Health Center move to strike the terms “reckless” and “recklessly” which Plaintiffs use to describe the alleged conduct of these Defendants in Paragraphs 36, 54, 63, 65, 67, 69, 71, 75, 77, 79, and 93. Drs. Lupo and Hine and Women’s Health Center argue that the factual averments of the Complaint, even if proven, do not rise to the level necessary to support such allegations. Women’s Health Center argues, in addition, that the Complaint fails to allege its knowledge of the actions of Drs. Lupo and Hine so as to render it vicariously liable under MCare.

We will overrule these Preliminary Objections. We read the averments of the Complaint with regard to the conduct of Drs. Lupo and Hine as sufficient to aver “recklessness” on their part. Since Plaintiffs have not advanced a claim for punitive damages at this time, we are not presently at liberty to rule on the potential vicarious liability of Women’s Heather Center.

Overly Broad Averments

Drs. Lupo and Hine and Women’s Health Center complain that the following Paragraphs of the Complaint contain catch-all, general and vague allegations which lack the specificity required under the rules of pleading and which could be utilized to assert new theories of liability after the expiration of the statute of limitations:

36. Plaintiffs’ injuries and damages were proximately caused by the negligence, carelessness, recklessness, and other tortious conduct of all of the defendants, acting individually, and/or through their respective agents, servants, and employees, as set forth in this Complaint.

64. The acts, omissions, and other tortious conduct of the defendants herein, acting individually, or through their respective agents, servants, and employees, increased the risk of harm to Karen Kneasel, and were substantial contributing factors to, and a factual cause of, her injuries and damage.

65. The negligence, carelessness, and recklessness of defendant, Dr. Lupo, consisted of the following:

d. failing to formulate and implement a proper and appropriate pre-operative, intra-operative, and post-operative surgical treatment plan for the patient;

j. causing injuries to Mrs. Kneasel’s bladder and genitourinary tract that do not ordinarily occur in the absence of negligence;

p. failing to order (or timely order), review, interpret, and act upon the results of appropriate diagnostic testing, examinations, and/or laboratory studies.

66. Because the injuries sustained by Mrs. Kneasel do not ordinarily occur in the absence of negligence, plaintiff invokes the Doctrine of Res Ipsa Loquitur.

69. The negligence, carelessness, and recklessness of defendant, Dr. Hine, consisted of the following:

d. failing to formulate and implement a proper and appropriate pre-operative, intra-operative, and post-operative surgical treatment plan for the patient;

j. causing injuries to Mrs. Kneasel’s bladder and genitourinary tract that do not ordinarily occur in the absence of negligence;

p. failing to order (or timely order), review, interpret, and act upon the results of appropriate diagnostic testing, examinations, and/or laboratory studies.

70. Because the injuries sustained by Mrs. Kneasel do not ordinarily occur in the absence of negligence, plaintiff invokes the Doctrine of Res Ipsa Loquitur.

(Complaint, ¶¶36, 64, 65(d)(j)(p), 66, 69(d)(j)(p), and 70).

For the reasons set forth in our discussion of GSH’s Preliminary Objections, we will sustain the Preliminary Objections of Drs. Lupo, Hine and Women’s Health Center to the language “other tortious conduct.” For the same reasons set forth in our previous discussion regarding Plaintiffs’ pleading of res ipsa loquitur, we will overrule the Preliminary Objections of these Defendants to Paragraphs 65(j), 66, 69(j) and 70.

We will sustain the Preliminary Objections to Paragraphs 65(d), 65(p), 69(d), and 69(j). These Defendants are entitled to know what treatment plans and tests, examinations, and studies Plaintiffs allege they should have ordered, reviewed, interpreted and acted upon. More specificity in this regard is necessary for these Defendants to prepare their defense and their response to the Complaint. We will grant Plaintiffs leave to amend these allegations to more fully set forth their complaints regarding these matters.

Claim for Vicarious Liability of Women’s Health Center for Lack of Informed Consent

Defendants also filed a Preliminary Objection to Plaintiffs’ assertion that Women’s Health Center is vicariously liable for the Dr. Lupo’s failure to obtain Karen’s informed consent. Plaintiffs have consented to have this claim against Women’s Health Center stricken from the Complaint and we will therefore sustain this Preliminary Objection.

1) In Archibald, the plaintiff alleged that he was injured when he was “checked” by the defendant during a “no-check” adult hockey league game. The court held that recklessness was the appropriate standard of care in those circumstances.