SCRANTON – A doctor accused of providing negligent care to a now-deceased man who resided at a Lackawanna County senior living facility is seeking to strike allegations of gross negligence, reckless conduct and punitive damages from the suit.
Donna Williams (individually and as Administratrix of the Estate of Eugene J. Lippi, deceased) of Harvey’s Lake filed suit in the Lackawanna County Court of Common Pleas on March 31 versus Glenmaura Senior Living at Montage, LLC (doing business as “Glenmaura Senior Living”) of Clarks Summit, Lackawanna Mobile X-Ray Inc. of Scranton and Darlene Dunay, D.O., of Old Forge.
“Prior to September 2020, Mr. Lippi was diagnosed with dementia. He was appropriately treated as an outpatient and resided independently at his home. Mr. Lippi was fully and independently ambulatory. Plaintiff Donna Williams decided to move Mr. Lippi to Glenmaura Senior Living after she saw advertisements in which it promoted its newly-built residential facility’s program called ‘Bridges’, that was dedicated to residents suffering with dementia,” the suit stated.
“Mr. Lippi moved to Glenmaura Senior Living on Sept. 15, 2020. At the time, he was fully ambulatory without assistance and was independent in activities of daily living, with limited assistance required when toileting. At Glenmaura Senior Living, Mr. Lippi came under the care of defendant, Darlene Dunay, D.O. Upon information and belief, Glenmaura Senior Living did not prepare a pre-admission screen or a residential assessment and service plan at the time of admission.”
Due to COVID-19 restrictions, visitors were not permitted at the facility and due to Lippi’s dementia, he could not speak on the telephone – however, the facility allowed the installation of a single “Blink” branded camera within Lippi’s apartment.
In November of 2020, Lippi was reported to have fallen at the facility, outside of his room. The facility claimed that it did not have initial knowledge of the fall and it was not witnessed by any members of the staff. Though it was not diagnosed initially, later x-rays would reveal that Lippi suffered a broken left leg in the fall.
In the aftermath of the fall, Dunay had not examined Lippi to determine the reason for his not being able to walk, yet regardless, ordered pain medication and physical therapy for him.
On Nov. 28, 2020, the suit said Lippi was the victim of an assault by a Glenmaura staff member, when being transferred from his bed to his wheelchair, which was captured on video. Though Glenmaura pledged to investigate the issue, the plaintiff said nothing substantive was done.
A later lack of treatment for Lippi’s broken leg and his lack of movement resulted in him developing skin ulcers and sepsis.
“On Dec. 28, 2020, Lippi underwent bipolar hemiarthroplasty surgery on the left hip. Following his inpatient care, Lippi was discharged and was transferred to inpatient care at Marywood Heights Nursing home on Jan. 12, 2021. On Jan. 16, 2021, Lippi was again admitted to Scranton Regional Medical Center, due to a hip dislocation,” per the suit.
“Lippi passed away on Feb. 4, 2021. Though the death certificate listed several causes, the primary causes of death were the direct result or the risk of which were increased by defendants’ conduct and lack of proper care following Lippi’s fall on Nov. 18, 2020.”
UPDATE
Dunay filed preliminary objections to the complaint on May 4, seeking to strike the allegations and language of gross negligence, reckless conduct and punitive damages.
“The complaint notes that the alleged treatment provided in this matter rose to a level to be considered reckless, punitive and gross negligence. The alleged improper treatment and care provided by defendant Dr. Dunay in treating plaintiff amounts to nothing more than a claim, on the face of the complaint, of negligence. This claim of negligence is disputed by the defendant Dr. Dunay,” per the preliminary objections.
“Here, the alleged conduct, as pled within the four corners of the complaint was not willful misconduct, wanton misconduct or reckless when they treated plaintiffs’ decedent and properly performed timely and complete evaluations, consultations, and treatment.”
Defense counsel stated that “in evaluating the claim of punitive damages against defendant Dr. Dunay, the Court must look to the ‘act itself’ and in doing so the Court should recognize that the claim of improper treatment is one of simple negligence, whether the steps taken by defendant Dr. Dunay were a breach of the standard of care, which at this stage does not amount to punitive conduct on the part of defendant Dr. Dunay.”
According to counsel for Dunay, “even a showing of gross negligence would be insufficient to support an award of punitive damages.”
“As a matter of law, plaintiff has not met his pleading burden and any claim of punitive damages or language such as reckless, which opens the door to punitive damages, must be dismissed. A claim for medical malpractice does not in and of itself satisfy a demand for punitive damages, which under the law is a separate claim of damages with a higher pleading standard,” the objections stated.
“To allow the claim of punitive damages to continue against defendant Dr. Dunay, at this stage, is legally improper and severely prejudicial to the defendants since the elements necessary to plead such a claim are lacking throughout the complaint.”
For multiple counts of survival/gross negligence, survival/negligence per se, survival/negligence, wrongful death and negligent infliction of emotional distress, the plaintiff is seeking damages in excess of the mandatory arbitration limits of Lackawanna County, plus costs, interest, attorney’s fees and punitive damages.
The plaintiff is represented by David J. Selingo and David W. Saba of Selingo Guagliardo, in Kingston.
The defendants are represented by James A. Doherty Jr. and Grace D. Hillebrand of Scanlon Howley & Doherty in Scranton, plus Jeffrey W. McDonnell of the Law Office of Andrea J. Bullock, in Philadelphia.
Lackawanna County Court of Common Pleas case 2021-CV-01494
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com