PHILADELPHIA – A federal judge’s ruling has altered the terms by which negligence can be pled 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, but has also denied some of the case’s medical defendants the chance to escape punitive damages.
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 subsequently 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 Oct. 5, Nov. 11 and Nov. 16 respectively, defendants from St. Christopher’s Hospital for Children, Teleradiologist Solutions, P.C. and Dr. Eric Y. Cho filed motions to dismiss.
“Of these three sets of defendants, St. Chris defendants and Cho request dismissal of plaintiffs’ negligence per se claims and Teleradiologist Defendants and Cho request dismissal of plaintiffs’ claims for punitive damages,” U.S. District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson said.
“Cho moves to dismiss the negligence per se claims because, as he argues, in part, that plaintiffs cannot assert negligence per se as a distinct claim from general negligence. Cho is correct in indicating that, under Pennsylvania law, ‘negligence per se is not a separate cause of action, but is instead a theory of liability that supports a negligence claim.”
Meanwhile, Baylson did not reach the same conclusion on the request to dismiss negligence from the St. Christopher’s defendants.
“Plaintiffs have satisfactorily claimed that St. Chris defendants improperly violated the Acts by allegedly permitting Bartkus to perform unauthorized practice of medicine without the requisite oversight. The alleged unauthorized practice of medicine, as defined under either the Medical Practice Act or Osteopathic Medical Practice Act, proximately caused injury to plaintiffs by critically delaying Baby G’s treatment,” Baylson stated.
As for the defendants’ attempts to throw out punitive damages, Baylson was not convinced by their arguments in that regard – explaining that “punitive damages are available in medical malpractice lawsuits only where ‘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.”
Additionally, Baylson stated punitive damages arise from vicarious liability where “it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.”
“Both Cho and Teleradiologist defendants ask the Court to dismiss all punitive damages against them; Teleradiologist defendants also challenge plaintiffs’ claim for punitive damages based on vicarious liability for Dr. Arjun Kalyanpur’s alleged negligence,” Baylson said.
“Plaintiffs have pleaded sufficient factual allegations that, for Rule 12 purposes only, the Court cannot grant. A motion to dismiss is simply not the proper vehicle for dismissing these claims.”
Baylson then split his ruling, granting in part and denying in part the defendants’ motions.
“Although the Court finds that plaintiffs have successfully pleaded negligence per se as a theory of liability, it agrees with Cho that Pennsylvania law does not permit plaintiffs to plead it as a separate claim from general negligence,” Baylson ruled.
“As such, it will dismiss Count VII (Negligence Per Se) but will grant leave for plaintiffs to amend Count VI (Negligence) to include their theory of negligence per se. It will, however, deny the Cho and Teleradiologists’ motions to dismiss claims for punitive damages and St. Chris defendants’ motion to dismiss claims relying on the theory of negligence per se liability.”
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, George L. Young Jr. of Kiernan Trebach, 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