PHILADELPHIA – A urologist and a urology practice are arguing they should not face the possibility of punitive damages in a lawsuit brought by the parents of a child who alleged failed treatment required their son to have emergency surgery to remove one of his testicles.
Lasheena Sipp-Lipscomb and Andres Gardin, Sr., filed a complaint on April 16 in the U.S. District Court for the Eastern District of Pennsylvania against Einstein Physicians Pennypack Pediatrics, Albert Einstein Healthcare Network and others alleging violation of the Emergency Medical Treatment Act (EMTALA) and other claims.
Lasheena Sipp-Lipscomb contacted her son Gardin’s physician at Pennypack Pediatrics on July 23, 2019, due to the then-two-year-old’s acute scrotal pain and swelling on his left testicle. Gardin was then taken to St. Christopher’s Hospital emergency department the next day.
The plaintiffs alleged that the defendant healthcare providers failed to follow screening procedures and to diagnosis Baby Gardin’s urgent medical condition that resulted in the need to surgically removal his testicle.
On May 20, the Einstein and Pennypack defendants filed a motion to dismiss the punitive damages portions from the negligent supervision, vicarious liability and corporate negligence claims associated with the case, along with the allegations of reckless and outrageous conduct to support them.
“Mere conclusory statements are insufficient to sustain a claim for punitive damages and this Court need not accept as true any such statements for the purpose of preliminary objections. In this case, the plaintiffs alleged that an unnamed agent of moving defendants did not properly handle a telephone call,” the dismissal motion read, in part.
“Such allegations, if proven, rise to no more than ordinary negligence. Plaintiffs’ conclusory allegation of reckless, wanton, willful, intentional and outrageous conduct have no supporting factual bases and cannot possibly serve as the basis for a claim for punitive damages. Here, plaintiff’s complaint contained no pleaded facts suggesting that moving defendants knew of and allowed any conduct that could result in an award of punitive damages.”
Secondarily, defendants Dr. Charles W. Concodora and Urology For Children, LLC filed a partial motion to dismiss plaintiffs’ claims for punitive damages and of reckless, wanton, willful, intentional and/or outrageous conduct, with prejudice on June 16.
“Under Pennsylvania law, punitive damages may only be imposed when the actor’s conduct is of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct. Here, plaintiffs’ complaint uses the legal terms ‘reckless,’ ‘wanton,’ ‘willful,’ ‘intentional’ and ‘outrageous’ and claims punitive damages against moving defendants,” the dismissal motion read.
“However, the facts alleged in plaintiffs’ complaint, even if they were accepted as true, establish only that moving defendants were merely negligent in the care and/or treatment of the plaintiff. Any allegation that the actions of moving defendants were intentional, willful, wanton, reckless or outrageous or anything more than merely negligent are unsupported and irrelevant to the plaintiffs’ claims of negligence.”
The moving defendants asserted the plaintiffs’ complaint contains no facts that suggest that Urology for Children knew of and/or allowed any conduct that could result in an award for punitive damages, and thus, any claims for such conduct or punitive damages should be stricken.
The plaintiffs seek monetary relief of more than $150,000, interest, and all other just relief.
The plaintiffs are represented by Derek Jokelson and David Jokelson of Jokelson Law Group, in Philadelphia.
The defendants are represented by Joseph G. Zack of Post & Post in Berwyn, Gary M. Samms and Katherine Robinson of Obermayer Rebmann Maxwell & Hippel, plus John P. Shusted of German Gallagher & Murtaugh, all in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-01926
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com