PITTSBURGH – An Allegheny County woman has refuted a series of preliminary objections to her lawsuit, which claimed that her plastic surgeon sexually assaulted her during her a pre-surgical consultation visit and later attempted to her ask her out for a date during her post-operative care.
B.K. filed suit in the Allegheny County Court of Common Pleas on July 27 versus Raymond A. Capone Jr. M.D. and R.A. Capone Jr. M.D., P.C. (doing business as “Specialists in Plastic Surgery of Pittsburgh”). All parties are of Pittsburgh.
“On Sept. 28, 2021, plaintiff B.K. presented to defendant Raymond A. Capone Jr. M.D. and his practice R.A. Capone, Jr. M.D., P.C. (doing business as “Specialists in Plastic Surgery of Pittsburgh”), requesting thigh and knee liposuction with buttock re-contouring. At that time, during their first consultation, Dr. Capone discussed the surgery at length with Ms. K. During the first consultation, Ms. K. was naked below her waist. Dr. Capone and Ms. K. were alone together in the room during the first consultation,” the suit stated.
“On Oct. 4, 2021, Ms. K. returned for a second consultation with Dr. Capone regarding the thigh and knee liposuction with buttock re-contouring surgery. That same day, Ms. K. expressed her continued interest in pursuing the surgery. Once again, Ms. K. was naked below her waist. Dr. Capone took pre-operative photographs of Ms. K. Dr. Capone and Ms. K. were alone together, again, in the room during Ms. K.’s second consultation.”
The suit continued that after the second consultation, Ms. K.’s surgery was scheduled for Oct. 14, 2021. On Oct. 14, 2021, prior to Ms. K.’s surgery, Dr. Capone and Ms. K. were once again alone in the room together.
“While Dr. Capone was putting surgical site markers on Ms. K.’s naked body for surgery, Dr. Capone, without consent or warning, grabbed Ms. K.’s vagina and told her that he could fix her vagina too. That same day, Dr. Capone completed Ms. K.’s thigh and knee liposuction with buttock re-contouring surgery without complications. On Oct. 20, 2021, Ms. K. had a follow-up visit with Dr. Capone regarding her recent surgery. Ms. K. appeared to be healing properly. On Nov. 10, 2021, Ms. K. had a second follow-up visit with Dr. Capone regarding her recent surgery. Ms. K. was healing properly. Ms. K. was to follow up in a month for post-operative photographs. On Dec. 8, 2021, Ms. K. had a third follow-up visit with Dr. Capone,” the suit said.
“Dr. Capone took post-operative photographs of Ms. K., reviewed the photographs with Ms. K., and recommended Ms. K. to come back for a follow up in six months. On Dec. 14, 2021, Dr. Capone sent a letter to Ms. K. with her before and after photographs from her surgery. Enclosed in the letter was a sticky note which stated, ‘B. What fun! You would make a beautiful ponygirl. I would love to meet you for a drink…discreetly. Text me…’ Dr. Capone signed the sticky note as ‘Ray.’ The sticky note included Dr. Capone’s phone number.”
The suit went on to say that the plaintiff “suffered and continues to suffer substantial shock, pain, embarrassment, suffering, mental anguish, emotional distress, anxiety, worry, depression, anger, nervousness, restlessness, headaches, tiredness, stress, jaw tension, upset stomach, menstrual cycle changes and physical aches, which has adversely affected her relationships and quality of life.”
The defendants filed preliminary objections on Oct. 3, looking to strike the count of corporate negligence (Count I) from the complaint and dismiss defendant R.A. Capone, Jr. M.D., P.C. (doing business as “Specialists in Plastic Surgery of Pittsburgh”).
“Under Pennsylvania law, defendant practice is not subject to the corporate negligence claim plaintiff brings at Count I of her complaint. Since 2004, Pennsylvania courts have acknowledged that physicians’ offices, like defendant practice, are not subject to corporate negligence claims of the kind that may properly be applied to hospitals. Because defendant practice is a private practice rather than a hospital, no recovery is possible against it on a corporate negligence theory,” the objections stated.
“Paragraph 46 of plaintiff’s complaint and the ad damnum clause which follows set forth a claim for punitive damages against defendant practice. Importantly, while plaintiff pleads that defendant Capone was an agent of defendant practice, her only claim against defendant practice is the above-noted claim for its own corporate negligence, not for vicarious liability predicated on the alleged torts of defendant Capone. Given that plaintiff’s corporate negligence claim is improperly applied to defendant practice, no claim for punitive damages against defendant practice can be recovered. ‘It is settled law that one cannot recover punitive damages independently from an underlying cause of action.’ As such, plaintiff’s instant claim for punitive damages against defendant practice must be dismissed, as plaintiff has failed to adequately plead an underlying cause of action against defendant practice.”
UPDATE
Plaintiff counsel answered the preliminary objections on Oct. 23, denying it in its entirety.
“As the averments of [these paragraphs] of defendant’s preliminary objections reference a written instrument that speaks for itself, those averments are denied to the extent that they attempt to interpret and/or paraphrase the same. By way of further response, as the averments of [these paragraphs] constitute conclusions of law, no responsive pleading is required,” the answer stated, in part.
For counts of negligence, corporate negligence, negligent infliction of emotional distress, assault and battery, the plaintiff is seeking damages in excess of the jurisdictional arbitration limits, together with interests, costs of suit, and any other relief that this Honorable Court deems appropriate, to recover which this suit is brought.
The plaintiff is represented by Elizabeth A. Chiappetta, Allison H. Greene and Adriana Frontino of Robert Peirce & Associates, in Pittsburgh.
The defendants are represented by Alan S. Baum and Frank X. Petrini of Baum O’Connor Cullen Chmiel, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-009115
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com