HARRISBURG – The dismissal of wrongful death lawsuit arising from the accidental choking death of a mentally disabled man has been affirmed by the state Superior Court.
However, on Dec. 6, the court overturned the fact that the dismissal was done "with prejudice," which would have meant the plaintiff could not amend his complaint.
“In sum, we affirm the trial court’s Dec. 3, 2015, order as to striking appellant’s second amended complaint and as to striking the amended complaint for lack of conformity with Rules 1019(a) and 1020(a). We reverse the order as to the grant of demurrers and dismissal of appellant’s amended complaint with prejudice. Further, we remand for further proceedings consistent with this decision.”
According to the court's opinion, on Aug. 24, 2013, Charles Bouchon was a resident of a group home. While unsupervised, he ate some pizza and drank a soft drink and choked. He was transported to a hospital, where he died.
Dale Bouchon, brother and administrator of the estate of Charles Bouchon, conducted pre-complaint discovery against Citizen Care in the summer of 2015. He videotaped discovery depositions. In the fall of 2015 he sued Citizen Care, which operated the group home, and many of its employees over alleged negligence in the death of Charles Bouchon, demanding $6 million in damages. He also sued the EMS workers who tended to his brother.
The defendants replied, citing among their arguments that “Plaintiffs’ complaint fails to allege facts necessary to support a finding of gross negligence, as required in light of the qualified immunity under the Mental Health and Mental Retardation Act," according to the court's opinion.
The EMS workers filed preliminary objections and asked the court to dismiss the action against them, citing “Robinson EMS was entitled to immunity under the Emergency Medical Services System Act (the EMSS Act), which it claims only permits suit against an emergency medical service provider for gross negligence or willful misconduct,” the opinion states.
Bouchon filed answers to all objections, stating that “the preliminary objections are conclusions of law to which no response is necessary. To the extent a response was required, appellant denied the averments or, alternatively, claimed the complaint was a matter of record that speaks for itself,” the opinion states.
On Jan. 18, 2016, Bouchon filed a 55-page amended complaint against the same defendants, alleging negligence and reckless behavior by Citizen Care, among other allegations.
As noted in the Superior Court’s Order, “While the amended complaint attempted in some measure to set forth separate counts as between entities and individuals, the amended complaint nonetheless did not set forth counts against each appellee as instructed by the trial court.”
The trial court dismissed the case in September 2016 noting the many errors in the pleadings filed by Bouchon. The Superior Court's order notes the dismissal was done "with an understandable and palpable degree of frustration due to appellant’s failure to conform to basic rules of pleading."
The case was before justices Judith Ference Olson, Victor P. Stabile and Eugene B. Strassburger III. The opinion was authored by Stabile.