ALLENTOWN – A New Jersey man who filed a federal lawsuit against the medical professionals involved in a surgery he claims resulted in his wife’s death from internal bleeding, is opposing a Bethlehem hospital’s attempt to have itself dismissed from the litigation through summary judgment.
John Raymond first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 20, 2020. Named defendants include Amanda Lieberman, the physician assistant who performed the procedure, as well as Dr. Errin Hoffman, Good Shepherd Specialty Hospital and Lehigh Valley Hospital.
According to the complaint, Diane Raymond was diagnosed on March 7, 2018, with excessive fluid between membrane layers surrounding her right lung.
John Raymond alleged medical officials ordered a surgery without informed consent from him or his wife, and Lieberman performed an ultrasound-guided thoracentesis on March 8, during which she “cut, sliced and otherwise damaged Diane Raymond’s liver, veins, arteries and/or other internal organs,” but did not recognize or acknowledge that reality while preparing a report of a successful surgery.
Hoffman reviewed Lieberman’s notes a few hours after the surgery and concurred with her assessment. That afternoon, Diane Raymond was transferred from Good Shepherd to Lehigh Valley Hospital in critical condition. Although doctors recognized the internal bleeding, Raymond she into cardiac arrest and died within an hour.
On May 1, 2020, Lieberman and Hoffman filed a motion to dismiss the claims of professional negligence against them, due to certificates of merit not being filed with the original complaint.
“In his complaint, plaintiff alleges, in part, that Dr. Hoffman, ‘failed to possess that degree of skill, care and knowledge and experience ordinarily exercised and possessed by the average qualified physician.’ Similarly, Plaintiff alleges, in part, that Ms. Lieberman, ‘failed to possess that degree of skill, care and knowledge and experience ordinarily exercised and possessed by the average qualified physician assistant,” according to the doctors’ dismissal motion.
“Because plaintiff’s claims against moving defendants are rooted in professional negligence, plaintiff in this case was required to file a certificate of merit in accordance with Pennsylvania Rules of Civil Procedure 1042.3. Despite having filed a document purporting to be an ‘Affidavit of Merit’ with regard to each moving defendant, plaintiff has failed to comply with the requirements of Pennsylvania Rules of Civil Procedure 1042.3.”
The dismissal motion further counters by explaining the plaintiff’s complaints are signed by an expert witness, Craig A. Nachbauer, M.D., a thoracic surgeon who is only Board-certified in that capacity and not in the same medical discipline as defendant Hoffman, radiology.
The hospital filed a motion the very same day to dismiss counts of lack of informed consent/battery, negligent infliction of emotional distress, survival action on behalf of plaintiff, Mr. Raymond, individually, survival action on behalf of the Estate, loss of consortium and all requests for punitive damages.
On June 5, 2020, Good Shepherd Specialty Hospital filed an answer to the amended complaint. The answer denied the entirety of allegations made in the case and asserted no less than 23 affirmative defenses.
Among the defenses recommending the case be dismissed were failure to state a cause of action upon which relief can be granted, being barred in whole or in part, by the doctrine of Contributory Negligence, being barred by the provisions of the Pennsylvania Healthcare Services Malpractice Act and being barred by the applicable statute of limitations.
The hospital also mentioned it was improperly sued as “Allentown Specialty Hospital” and sought to correct that information for the record.
On June 12, 2020, Raymond’s counsel responded the hospital’s motion to dismiss, denying all of its allegations in their entirety and countering that their client’s claims were in fact well-pled.
“It is denied that plaintiffs ‘have failed to comply with the minimum rules of pleading.’ To the contrary, plaintiffs have gone beyond the Federal Rule of Civil Procedure 8(a)(2) notice pleading requirements and set forth more than just ‘a short and plain statement of the claim showing that the pleader is entitled to relief,” the response from Raymond’s counsel states, in part.
“Plaintiffs’ amended complaint clearly and concisely states that defendant Lieberman was negligent in performing a thoracentesis on plaintiffs’ decedent by piercing her liver with a needle which directly caused her death hours later. Moving defendants’ assertion that ‘plaintiffs’ claims are so vague or ambiguous that moving defendants cannot reasonably prepare a response’ and that they need ‘a more definite statement’ is farcical.”
Allentown Specialty Hospital filed a motion for summary judgment on Oct. 18, arguing that defendant Lieberman was not affiliated with Good Shepherd and thus, there is no evidence to support the negligence theory postulated by the plaintiff.
“This medical negligence case arises from a thoracentesis performed on plaintiff, John T. Raymond’s late wife on March 8, 2018. It is undisputed that Mrs. Raymond had the procedure at Lehigh Valley Hospital-Muhlenberg and that it was performed by Amanda Lieberman, PA-C. It is undisputed that Good Shepherd is a separate and distinct entity from Lehigh Valley Hospital-Muhlenberg. None of plaintiffs’ experts state that the care provided by Good Shepherd was below the standard. Accordingly, there is no direct evidence that Good Shepherd was negligent or breached any duty,” the motion stated.
“It is undisputed that PA Lieberman was employed by Medical Imaging of Lehigh Valley at the time of the procedure. It is undisputed that PA Lieberman was not an independent contractor of Good Shepherd at the time of the procedure. Accordingly, there is no evidence to support a theory of negligence against Good Shepherd based on actual agency or vicarious liability.”
The hospital added that there is “no evidence to support a theory that PA Lieberman was an ostensible agent of Good Shepherd, as well as no evidence that Mrs. Raymond, anyone from her family, or any reasonable person would have believed that the providers treating her at Lehigh Valley Hospital-Muhlenberg were agents or employees of Good Shepherd.”
UPDATE
In a Nov. 5 response to the summary judgment motion, the plaintiff countered that the hospital should not be dismissed from the case in such a fashion.
“Good Shepherd Specialty Hospital is not entitled to the entry of a summary judgment in its favor as a matter of law, because plaintiffs have stated a valid cause of action under an ostensible agency theory against this defendant, which is amply supported by the factual record produced in discovery and the affidavit which accompanies this response, such that the issue of whether GSSH is responsible for plaintiffs’ injuries as set forth in the amended complaint, is a question to be decided by a trier-of-fact,” the response said.
“In Mr. Raymond’s Oct. 25, 2021 affidavit, he states clearly that on March 8, 2018, he reasonably was looking to both GSSH and LVH, to provide his wife’s care and was not looking to a particular physician or physician’s assistant to provide care.”
In the accompany affidavit, Raymond stated that both hospitals displayed confidence in their abilities to provide medical care to his late wife and that he disagreed with their arguments.
“Both Good Shepherd Hospital and Lehigh Valley Hospital represented to me, at all times from Jan. 22 through March 8, 2018, that they would select the appropriately qualified healthcare professionals to provide care to Diane given her medical needs. Neither hospital expressed any trepidation about providing my wife’s care,” the affidavit said, in part.
The 21-count complaint seeks compensatory damages and a jury trial.
The plaintiffs are represented by Scott M. Wilhelm of Winegar Wilhelm Glynn & Roemersma, in Phillipsburg, N.J.
The defendants are represented by Gregory S. Nesbitt and Laurie B. Shannon of Kilcoyne & Associates in Blue Bell, plus Howard S. Stevens, Jennifer L. Weed and Samuel Ezra Cohen of Gross McGinley in Allentown and Jacqueline Campbell, John P. Shusted and Nikki Mosco of German Gallagher & Murtaugh, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:20-cv-00959
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com