MEDIA – In a lawsuit from a Delaware County woman against her former doctor, a pharmacist and their pharmacy - which alleged their reckless negligence of prescribing large amounts of opioid medication led to the death of her husband - the defendants have had their preliminary objections largely overruled.
Patricia Foster (individually and as administrator ad prosequendom of the Estate of Michael A. Yacovone, deceased) of Blackwood, N.J. first filed suit in the Delaware County Court of Common Pleas on March 26 versus Patricia L. Sutton, D.O. of Upper Chichester, Chimdimma Ilonzo, PharmD and Springfield Pharmaceuticals, LLC (doing business as “Springfield Pharmacy”) of Springfield Township, and John/Jane Does 1-3.
“Michael A. Yacovone became a patient of Dr. Sutton in approximately 2001 at her family medicine practice. In 2006, Mr. Yacovone was in an automobile accident sustaining a minor back injury, and for the next 11 years and until she was stripped of her licenses, Dr. Sutton engaged in an outrageous and reckless course of prescribing extreme amounts, dosages and combinations of Schedule II and Schedule IV Controlled Dangerous Substances, inflicting Mr. Yacovone with addiction that he was unable to overcome,” the suit stated.
“Defendant Dr. Sutton was required to perform the necessary risk assessment and screening prior to the prescribing of Schedule II Controlled Dangerous Substances and Schedule IV Controlled Dangerous Substances, which Dr. Sutton failed to perform. Defendant Dr. Sutton was required to formulate actual and specific medical diagnoses for Michael Yacovone’s medical conditions to objectively ascertain any source of pain prior to the prescribing of multiple amounts and doses of Schedule II and Schedule IV Controlled Dangerous Substances which Dr. Sutton repeatedly failed to do.”
Rather than formulate a treatment plan, the suit accused Sutton of “outrageous and reckless prescribing” on a monthly basis in the form of repeated issuance of prescriptions from 2006-2010 for pure fentanyl medications, Actiq and Fentora, medications approved only for patients suffering from breakthrough cancer pain due to malignant cancer.
While prescribing Actiq and Fentora to Michael Yacovone, Dr. Sutton also concurrently prescribed thousands of pills of Oxycontin, Xanax and Soma, what the suit refers to as “extremely dangerous and addictive Controlled Dangerous Substances.”
The decedent paid Sutton in cash rather than through health insurance, the suit alleged, so that her reckless prescribing would be undetected. Furthermore, the suit said that Sutton’s co-defendants also disregarded the law and care for the decedent by filling Sutton’s dangerous prescriptions from at least 2012 through the middle of 2017, when Sutton’s license to write prescriptions for Controlled Substances was revoked.
When Sutton lost her license in May of 2017, the suit said Michael Yacovone was already completely addicted to opioids and benzodiazepines.
“From 2017 through June of 2019, Michael Yacovone, battled against the addiction caused by defendants and he was admitted to drug treatment facilities on four separate occasions for weeks at a time. As a matter of fact, Dr. Sutton is identified in the drug treatment facility records by Mr. Yacovone as the doctor that caused him to become addicted to opioids and benzodiazepines,” per the suit.
“Michael Yacovone’s last admission for opioid and benzodiazepine addiction was from May 18, 2019 through June 1, 2019. On Sept. 6, 2019, Michael A. Yacovone succumbed to the addiction caused by defendants and died due to an accidental overdose from opioids.”
In addition to the plaintiff, Michael Yacovone is survived by their three children.
Sutton’s counsel filed preliminary objections on April 30, seeking to strike both punitive damages and allegedly scandalous and impertinent material.
“Punitive damages can only be awarded where the evidence shows that a defendant knew or had reason to know of facts that create a high degree of risk of physical harm to another and deliberately acts in conscious disregard or indifference to that risk. Punitive damages are also limited under the MCARE Act. Furthermore, plaintiff‘s first cause of action for wrongful death seeks punitive damages against moving defendant,” per the objections.
“The wrongful death statute does not provide for the imposition of punitive damages. The claim for punitive damages as to this cause of action lack statutory authority and thus must be stricken as a matter of law. Plaintiff‘s complaint alleges scandalous and impertinent material which is presumably their basis for the imposition of punitive damages, and as such is not proper.”
Sutton’s counsel also elaborated on the alleged scandalous and impertinent material.
“Plaintiff‘s complaint contains scandalous and impertinent materials which are immaterial and inappropriate in litigating these causes of actions for wrongful death, survivor act, and medical negligence, Plaintiff’s complaint makes reference to moving defendant‘s license to practice medicine being revoked and/or suspended,” the objections said.
“The above-referenced averments are immaterial and inappropriate in this matter plaintiff‘s complaint makes no reference or allegation that moving defendants license issues were or are related moving defendants care of plaintiff decedent.”
Finally, Sutton outlined other material which she feels should be stricken.
“Plaintiff‘s complaint also alleges that moving defendant engaged in criminal conduct which is also immaterial and inappropriate as plaintiff has failed to produce any specific facts which would support these callous accusations which are defamatory of moving defendant,” per the objections.
“Plaintiff’s complaint also includes improper medical opinions which must be stricken as scandalous and impertinent material. Plaintiffs allege that decedent’s wife, plaintiff Patricia Foster had called moving defendant and alleged that moving defendant made plaintiff decedent sick and not to prescribe any other medications.”
UPDATE
In further preliminary objections from Ilonzo, PharmD and Springfield Pharmaceuticals, LLC filed on April 30, those defendants also sought the striking and dismissal of punitive damages, along with language referring to “reckless, intentional, outrageous, willful and wanton conduct.”
On Sept. 13, Delaware County Court of Common Pleas Judge John J. Whelan ruled on both sets of preliminary objections.
“Upon consideration of the preliminary objections filed by defendant Patricia L Sutton D.O., and the response filed thereto, it is hereby ordered that said preliminary objections are overruled. Defendant shall file an answer to the complaint within 20 days of the date of notice of this order,” Whelan said.
“Upon consideration of the preliminary objections filed by defendants Chimdimma Ilonzo, PharmD and Springfield Pharmaceuticals, LLC, and the response filed thereto, it is hereby ordered that said preliminary objections are sustained to the extent that plaintiffs claim for punitive damages under the Wrongful Death Act is dismissed with prejudice otherwise, defendants’ preliminary objections are overruled. Defendants shall file an answer to the remaining allegations of the complaint within 20 days of the date of notice of this order.”
For counts of survival, wrongful death and negligence/recklessness, the plaintiff is seeking damages in excess of $50,000 and in excess of the prevailing arbitration limits under the Wrongful Death and Survival Act, exclusive of pre-judgment interest, post-judgment interest, together with costs, punitive damages, interest, attorney’s fees and such other relief as permitted by law, and as the Court may deem appropriate under the circumstances.
The plaintiff is represented by Richard J. Hollawell of Richard J. Hollawell & Associates, LLC, in Woolwich Township, N.J.
The defendants are represented by Michael E. McGilvery and Denise L. Juliana of McGilvery & Juliana in King of Prussia, plus William J. Mundy, Peter A. Callahan and Amelia E. Curotto of Burns White, in West Conshohocken.
Delaware County Court of Common Pleas case CV-2021-003064
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com