PHILADELPHIA – In a lawsuit brought by the parents of a child who alleged medical malpractice in requiring their son to have emergency surgery to remove one of his testicles, hospital defendants say a negligence claim wasn’t properly pled.
Lasheena Sipp-Lipscomb and Andres Gardin, Sr., first 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.
“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,” per that motion.
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. 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,” according to the dismissal motion.
UPDATE
Counsel for the St. Christopher’s Hospital defendants filed a motion to dismiss on Oct. 5, claiming that the plaintiffs had not properly put forth a claim for negligence per se.
According to statute, plaintiffs must show (1) The purpose of the statute must be, a least in part, to protect the interest of a group of individuals as opposed to the public generally; (2) The statute or regulation must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute or regulation and; (4) The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries.
“Without explanation of what the applicable statutes mandate, plaintiffs allege that defendants were negligent for failure to follow the Medical Practice Act of 1985 (MPA) and the Osteopathic Medical Practice Act (OMPA). Plaintiffs do not actually provide an analysis of the sections of the MPA or OMPA that were allegedly violated,” the dismissal motion, reads.
“To the contrary, plaintiffs predicate the entire idea that Ms. Bartkus engaged in the unauthorized practice of medicine on a practice parameter from the American College of Radiology. Plaintiffs allege that the American College of Radiology directs ‘it is not appropriate for non-physicians to provide interpretations and/or generate diagnostic reports (final or preliminary).”
The defendants say there “multiple problematic aspects” to the plaintiffs’ allegations, with one being that the parameter is merely a guideline and should not be used in the context of litigation.
“The ultimate judgment regarding the propriety of any specific procedure or course of action must be made by the practitioner in light of all the circumstances presented. Thus, an approach that differs from the guidance in this document, standing alone, does not necessarily imply that the approach was below the standard of care,” per the parameter.
“Plaintiffs alleged that ultrasound technician Hayley Bartkus performed a scrotal ultrasound and determined that there was blood flow to both testicles. Plaintiffs have now amended these allegations that this ultrasound was performed and then it was re-reated by M.D. Radiologist Dr. Kalyanpur and M.D. urologist Dr. Cho. In other words, the entire predicate of plaintiffs’ negligence per se claim is that allegedly Ms. Bartkus ‘practiced medicine’ by an unauthorized assessment of the ultrasound. However, this ultrasound was then read by at least two medical doctors prior to the child’s discharge. This is a fundamental change in allegations that completely defeats the negligence per se claim,” per the defendants’ motion.
The defendants argued that plaintiffs cannot make out any of the required elements in a claim of negligence per se and request the associated paragraphs be stricken from the complaint.
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, E. Chandler Hosmer III and Jacqueline M. Reynolds of Marshall Dennehey Warner Coleman & Goggin in King of Prussia, Gary M. Samms and Katherine Robinson of Obermayer Rebmann Maxwell & Hippel, plus John P. Shusted and Nikki Mosco 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