LANCASTER – Lancaster medical professionals and entities have denied allegations from a local couple who asserted that the defendants failed to diagnose their child as having contracted bacterial meningitis.
Elizabeth Djaraher and Richard Djaraher (in their own right and as parents and natural guardians of C.D., a minor) filed suit in the Lancaster County Court of Common Pleas on Jan. 7 versus Dr. Christopher H. Fox, Lancaster Emergency Associates, Ltd. (doing business as “Lancaster Emergency Associates”) and The Lancaster General Hospital. All parties are of Lancaster.
“On Oct. 29, 2019, minor-plaintiff C.D., 10 years old, presented to the emergency department at Lancaster General Hospital with abrasions, a nasal fracture and a laceration due to a fall. His care was overseen by defendant Dr. Fox. At the same time and place, minor-plaintiff underwent CT scans of the head and face, he was given a prescription for a prophylactic antibiotic, and he was discharged,” the suit says.
“On Oct. 30, 2019, minor-plaintiff returned to the emergency department at Lancaster General Hospital after having stayed home from school with a fever and lack of appetite. The primary nurse attending to minor-plaintiff noted they appeared ill and ‘slightly disengaged’ and had his eyes closed throughout her assessment. Minor-plaintiff was again seen by defendant Dr. Fox, who noted complaints of sleepiness, nausea and decreased intake of food and water.”
The suit adds that Dr. Fox did not perform a lumbar puncture to test for purposes of making a diagnosis of bacterial meningitis that day.
“The following day, on Oct. 31, 2019, minor-plaintiff presented to Hershey Medical Center with increasing lethargy and irritability and was found to be critically ill with bacterial meningitis, which was diagnosed on lumbar puncture,” the suit states.
“As a direct and proximate result of the defendants’ negligence, carelessness, recklessness and tortious conduct, minor-plaintiff suffers from significant neurological conditions, including hearing loss in his left ear requiring cochlear implant surgery, right eye nerve palsy requiring surgery, further, minor-plaintiff was initially admitted to the intensive care unit where he was intubated and comatose, and endured an approximately 27-day inpatient hospital stay where he underwent inpatient rehabilitation followed by outpatient rehabilitation for approximately six weeks.”
On Jan. 26, defendants Fox and Lancaster Emergency Associates filed preliminary objections which countered that the plaintiffs supposedly failed to allege facts that support a claim of recklessness.
“Plaintiffs’ allegations sound in ordinary negligence. There are no facts to suggest that Dr. Fox was aware of a serious risk to C.D.’s health (e.g. bacterial meningitis), which he then consciously disregarded. Rather, the complaint suggests that Dr. Fox should have been aware of a serious risk. Thus, there was no serious risk to disregard,” the objections stated.
“Moreover, the facts in the complaint are inconsistent with a wanton state of mind. Dr. Fox noted C.D.’s complaints, ordered diagnostic tests and performed a physical examination. It was only when C.D. showed ‘increasing lethargy and irritability’ that he received a lumbar puncture at Hershey. Thus, the complaint lacks any trace of outrageousness, the hallmark of a prima facie recklessness claim. For the foregoing reasons, plaintiffs’ cause of action of recklessness should be dismissed pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4).”
UPDATE
The plaintiffs responded to the preliminary objections on Feb. 8, denying them.
“The defendants’ averments are based on a written document which speaks for itself and must be read as a whole. [The averments are] denied as conclusions of law to which no responses are required. Plaintiffs respectfully request that this Honorable Court enter the order overruling the instant preliminary objection to plaintiff’s complaint,” the answer stated.
Defendant Lancaster General Hospital filed its own preliminary objections on Feb. 16, seeking to strike the demand for punitive damages and alleging that the plaintiffs’ vicarious liability claims were “overly broad.”
Likewise, the plaintiffs denied these additional objections on March 4, on similar grounds as their denial to the earlier objections.
For multiple counts of negligence sounding in medical professional liability, the plaintiff is seeking, individually, jointly and severally, in excess of $50,000 in compensatory damages, punitive damages and delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, interest and allowable costs of suit, plus a trial by jury.
The plaintiffs are represented by Kevin R. Marciano and Patrick D. MacAvoy of Marciano & MacAvoy, in Media.
The defendants are represented by Andrew Foulkrod and Eric Lauerman of Cipriani & Werner, in Lemoyne.
Lancaster County Court of Common Pleas case CI-21-00134
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com