Rebecca Espinosa, Individually and as Administrator of the Estate of Margaret Lutz, deceased, v. Luthercare, Et Al, Spang Crest, Et Al and Musaddiq N. Nazeeri, M.D., Et Al

Rebecca Espinosa, Individually and as Administrator of the Estate of Margaret Lutz, deceased, v. Luthercare, Et Al, Spang Crest, Et Al and Musaddiq N. Nazeeri, M.D., Et Al

Civil Action-Law-Negligence-Medical Malpractice-Death-Rehabilitative Care Facility-Physician-Reliance Upon Radiologist Interpretation of Imaging-Punitive Damages-Outrageous Conduct-Bad Motive-Reckless Indifference

Rebecca Espinosa (“Plaintiff”) filed a Complaint in medical malpractice against Defendants following the death of Margaret Lutz on the basis that the actions of Musaddiq N. Nazeeri (“Dr. Nazeeri”), a staff physician/independent contractor for the rehabilitation facility where the decedent had been residing, in failing to examine x-ray images himself that showed abnormalities and instead relying upon the interpretation of the imaging by the radiologist is the kind of conduct supportive of an award of punitive damages.  Dr. Nazeeri has filed a Motion for Summary Judgment seeking dismissal of the claim for punitive damages. 

1.  Punitive damages may not be awarded for misconduct that constitutes ordinary negligence.

2.  Punitive damages may be awarded only to punish outrageous conduct.

3.  Outrageous conduct has been defined as an act done with a bad motive or reckless indifference to the interests of others. 

4.  The actor must recognize that his or her conduct involves a risk substantially greater than that which is necessary to make his or her conduct negligent. 

5.  While a physician cannot be insulated from liability simply because he or she relies upon a radiologist’s interpretation of a report, there is no precedent supporting the theory that punitive damages are supported because a physician relied upon the radiologist’s reading of imaging or the radiologist misinterpreted the imaging.

6.  Where the pleadings fail to present any indication that Dr. Nazeeri did or did not act based upon his own financial interests or allegation of misconduct transcending allegations of general negligence, the claim against Dr. Nazeeri is a claim of negligence not supportive of an award of punitive damages.

L.C.C.C.P. No. 2019-02130, Opinion by Bradford H. Charles, Judge, February 13, 2023.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

REBECCA ESPINOSA, Individually         :

And as Administrator of the Estate of        :

Margaret Lutz, deceased,                             :           No. 2019-02130

Plaintiff                                                          :

                                                                                    :

            v.                                                                     :            

                                                                                    :          

LUTHERCARE, ET AL                                         :

SPANG CREST, ET AL                              :          

MUSADDIQ N. NAZEERI, M.D., ET AL :          

Defendants                                                     :

ORDER OF COURT

AND NOW, this 13^th day of February 2023, upon consideration of the Motion for Partial Summary Judgment filed by Dr. Musaddiq N. Nazeeri, and in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Motion of Dr. Musaddiq N. Nazeeri to dismiss allegations of punitive damages lodged against him is GRANTED.  Plaintiff will not be permitted to claim punitive damages at trial.
2. Counsel are to appear in person or via telephone at a Status Conference to be conducted on the 14^th day of March, 2023, at 8:30am in Courtroom #3 of the Lebanon County Courthouse.  Counsel are to notify the Judicial Assistant of the undersigned no later than March 1, 2023, if they wish to participate by telephone and, if so, the number at which they can be reached.

BY THE COURT:

                                                                                                                                    J.

                                                            BRADFORD H. CHARLES

BHC/pmd

cc:        Justin Bernstein, Esquire// 334 W Front St., Media PA 19063

Kevin Osborne, Esq.& Karen Minehan, Esq.// 100 Corporate Center Drive, Suite 201, Camp Hill PA  17011

Andrew Foulkrod, Esquire// 1011 Mumma Rd., Ste. 201, Lemoyne PA 17043

Court Administration

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

REBECCA ESPINOSA, Individually         :

And as Administrator of the Estate of        :

Margaret Lutz, deceased,                             :           No. 2019-02130

Plaintiff                                                          :

                                                                                    :

            v.                                                                     :            

                                                                                    :          

LUTHERCARE, ET AL                                         :

SPANG CREST, ET AL                              :          

MUSADDIQ N. NAZEERI, M.D., ET AL :          

Defendants                                                     :

APPEARANCES

ANDREW H. FOULKROD, ESQ.              For Plaintiff

JUSTIN M. BERNSTEIN, ESQ.                 For Musaddiq N. Nazeeri, M.D.

OPINION BY CHARLES, J. February 13, 2023

            Can a doctor be liable for punitive damages because he relies upon a radiologist who allegedly missed something that was “massive” and “obvious”?  Because we conclude that something more than mere misinterpretation of an x-ray is required to support a claim for punitive damages, we will be granting the Motion of Dr. Musaddiq Nazeeri (hereafter NAZEERI) for Partial Summary Judgment regarding the question of punitive damages. 

I.    FACTUAL BACKGROUND

            At some point in early 2018, 85-year-old Margaret Lutz (hereafter LUTZ) was transferred from a hospital setting to the Luthercare Spang Crest (hereafter SPANG CREST) facility in Lebanon.  At the time of admission, the hope was that LUTZ would receive intermediate care as a “bridge” to returning to her home.  Unfortunately, LUTZ died on March 1, 2018, before she was able to return home. 

            According to information submitted to the Court, LUTZ began experiencing respiratory discomfort on or shortly before February 6, 2018.  As a staff physician/independent contractor for Spang Crest, NAZEERI was consulted.  On February 6, 2018, NAZEERI ordered a series of tests for LUTZ.  Among these tests was a chest x-ray. 

            According to NAZEERI’s deposition, LUTZ had “good days and bad days” following February 6, 2018.  The x-ray was eventually conducted.  A report from someone we presume was a Radiologist was generated as a result of the x-ray scan.  That report was given to NAZEERI at 5:00pm on February 12, 2018.  The report showed abnormalities.  Despite this, NAZEERI did not undertake to look at the x-ray film himself.  According to an affidavit signed by NAZEERI on January 12, 2023, at no time did NAZEERI ever review the x-ray film.  Rather, he relied upon the Radiologist’s interpretation of that film. 

            On December 5, 2019, a Civil Medical Malpractice Complaint was filed by Rebecca Espinosa, Administrator of the Estate of Margaret Lutz (hereafter PLAINTIFF) alleging that both SPANG CREST and NAZEERI were negligent.  The Complaint also included a request for punitive damages against both SPANG CREST and NAZEERI.  The key allegations against NAZEERI were set forth in paragraphs 79 and 81 of the Complaint. 

“79.  The acts and failures to act of Dr. Nazeeri, as above averred, supports that he subjectively appreciated and knew or had reason to know of facts which would lead a reasonable person to realize, not only that his conduct created an unreasonable risk of physical harm to another, but also that such risk was substantially greater than that which is necessary to make their conduct negligent.”

“81. Based on the premises aforementioned herein, the conduct of Dr, Nazeeri was so reckless and wanton as to shock the senses of a civilized society and warrants the imposition of punitive damages, a claim for which is herein made.”

On August 31, 2020, PLAINTIFF signed a stipulation with SPANG CREST to remove the punitive damages claim against it. 

            On November 15, 2022, NAZEERI filed a Motion for Summary Judgment seeking to similarly dismiss the punitive damages claim against him.  PLAINTIFF opposed this motion.  Oral argument was scheduled for the January 2023 term of oral argument court.

            At oral argument, PLAINTIFF focused almost exclusively upon the x-ray interpretation.  This was curious because very few questions were asked about the x-ray interpretation at the time of NAZEERI’s deposition.  In fact, NAZEERI chose to file an affidavit in January of 2023, in order to explain that he never personally read the x-ray film.  At oral argument, we asked about whether NAZEERI’s reliance upon a radiologist could under any circumstances be construed as triggering punitive damages.  Neither counsel had an adequate response to our inquiry.  As a result, we asked for supplemental briefs.[1]  The viability of PLAINTIFF’s punitive damages claim against NAZEERI is now before us for disposition. 

II.    LEGAL PRINCIPLES

            We will begin by recognizing that a claim for punitive damages does not constitute a separate cause of action.  Rather, a claim for punitive damages has been described as “incidental to a cause of action.”  Nix v. Temple University, 596 A.2d 1132, 1138 (Pa. Super. 1991).  Still, more than simply proving a cause of action is needed in order for a plaintiff to recover punitive damages.  “Punitive damages may not be awarded for misconduct which constitutes ordinary negligence…” Hall v. Jackson, 788 A.2d 289 (Pa. Super. 2001). 

            In the realm of medical malpractice law, a party may recover punitive damages.  See, Hoffman v. Memorial Osteopathic Hospital, 492 A.2d 1382 (Pa. Super. 1985); 40 P.S. § 1303.505.  However, punitive damages may only be awarded to punish an “outrageous” act.  McLellan v. Health Maintenance Organization of Pennsylvania, 604 A.2d 1053, 1061 (Pa. Super. 1992).  Even a showing of gross negligence may not be sufficient to justify a punitive damages award.  Williams v. Syed, 782 A.2d 1090 (Pa. Cmwlth. 2001).  Outrageous conduct has been defined as an “act done with a bad motive or with reckless indifference to the interests of others.”  McLellan, at page 1061.

“Reckless indifference to the interests of others, or as it has sometimes been referred to, “wanton misconduct”, means that “the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.”

McLellan, supra at page 1061, quoting Evans v. Philadelphia Transportation Company, 212 A.2d 440, 443 (Pa. 1965).

            As to the degree of recklessness required to support a punitive damages claim, the Pennsylvania Superior Court has stated that the alleged conduct must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” See, Hall v. Jackson, supra.  In other words, the actor must recognize that his/her conduct involves a risk substantially greater than that which is necessary to make his/her conduct negligent.  See, Id.  As one decision put it, “When assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital.  The act, or the failure to act, must be intentional, reckless or malicious.” Sokolsky v. Eidelman, 93 A.3d 858, 871 (Pa. Super. 2014).

            In practically every medical malpractice case litigated in this Court, the plaintiff at least initially seeks punitive damages.  Only once have we instructed a jury regarding the concept of punitive damages.  In the case of Brasher v. ManorCare, No. 2003-01250 (C.P. Leb.Co. January 21, 2004), we noted that the plaintiff had alleged facts in support of punitive damages that transcended the facts alleged pertaining to negligence.  Specifically, the plaintiffs alleged that ManorCare engaged in a pattern of behavior designed to “maximize profits at the expense of patients.”  We concluded that the totality of evidence presented was sufficient for a jury to determine that there was a “bad motive” on the part of ManorCare that would justify imposition of punitive damages. 

            In contrast, we have on numerous occasions refused to enable a claim for punitive damages to be submitted to a jury.  Even when so-called “magic” language alleging “outrageous” or “wanton” conduct is alleged, we have looked beneath the veneer of the allegation to determine whether facts existed to support an award of punitive damages.  In one case, we noted that the claim for punitive damages was not supported by any additional allegations beyond those that were used to support a claim of negligence.  See, e.g., Edmonds v. Ewing, C.P. Leb.Co. No. 2009-01094 (October 9, 2009).  As stated by the former President Judge of this County:

“A plaintiff must plead additional facts in order to recover punitive damages.  Pleading facts that establish only negligence, even gross negligence, is insufficient…It is insufficient to plead only legal conclusions, such as averments that the defendant’s conduct was malicious, wanton, willful, reckless, oppressive or outrageous.  Rather, [proof of such behavior must be provided to support] each legal conclusion.”

See, Esler v. Morasco, No. 2006-01949 (March 19, 2007).  See also, Johnson v. Good Samaritan Hospital, No. 2013-02017 (March 25, 2014) and Reppert v. Lebanon Orthopedic Associates, No. 2003-00046 (July 1, 2003).

III.    ANALYSIS

            According to PLAINTIFF, NAZEERI evaluated an x-ray that clearly showed a problem that was “obvious, massive and incredibly important.”  According to PLAINTIFF, NAZEERI’s conduct was “outrageous” and “wanton”.  Accordingly, PLAINTIFF seeks the ability to request punitive damages. 

            PLAINTIFF’s punitive damages claim against NAZEERI is somewhat curious.  It is predicated upon what PLAINTIFF characterizes as a gross misreading of an x-ray film.  However, NAZEERI’s deposition transcript is devoid of information pertaining to whether or how NAZEERI interpreted LUTZ’ x-ray films.  It was not until NAZEERI filed an affidavit in January of 2023, that we learned that NAZEERI relied entirely upon the radiologist’s interpretation of the x-ray.  Given these facts, we are left to ponder the following questions:

• If a “massive” and “obvious” deformity was missed during x-ray interpretation, why wasn’t the radiologist who misread the film sued or joined as a party?
• Is it legally possible for a General Practitioner like NAZEERI to be subject to punitive damages based upon someone else’s misinterpretation of an x-ray film?
• If PLAINTIFF believes that NAZEERI acted inappropriately once he saw the radiologist’s report, isn’t that simple negligence?

Neither party has presented any decisional precedent that would assist us in answering any of the above questions.  Our independent research has revealed that a doctor such as NAZEERI cannot be insulated from liability simply because he relies upon a radiologist’s report.  See, Tyndall v. Freedman, 970 A.2d 1159 (Pa. Super. 2009).  That said, we found no precedent that would support a theory that NAZEERI can be made to pay punitive damages because he relied on a radiologist or because the radiologist misinterpreted the x-ray film. 

Nowhere in the pleadings or in the factual record presented to this Court is there any allegation that NAZEERI did or did not do something based upon his own personal financial interests.  Nowhere in the pleadings or in the factual record presented to us is there any allegation of misconduct transcending the allegations of general negligence that have been proffered.  As we see it, PLAINTIFF’s claim against NAZEERI is one of negligence.  Nothing more or nothing less should be presented to the jury that adjudicates this claim. 

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[1] PLAINTIFF filed a supplemental brief that did not specifically address the salient question posed by this Court.  NAZEERI did not file a supplemental brief.