PHILADELPHIA – The University of Pennsylvania Hospital is seeking to dismiss litigation from the estate of a man who claimed negligence on the part of hospital doctors led to the amputation of the decedent’s legs.
Louis Sklarz of North Wales first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 4, 2021 versus the United States of America (doing business as “Crescenz Veterans Administration Medical Center”).
On March 3, 2021, plaintiff also filed a complaint in the Philadelphia County Court of Common Pleas over the same occurrence, naming the Hospital of the University of Pennsylvania and the Trustees of the University of Pennsylvania as defendants.
(Jason Sklarz, Administrator of the Estate of Louis Sklarz, was substituted as a plaintiff on Nov. 12, 2021, subsequent to the original plaintiff’s death.)
The suit explained that decedent Louis Sklarz visited the VAMC Emergency Department in May 2019 for extreme foot pain, where he was treated by Dr. Eric Farabaugh. Farabaugh allegedly discharged the plaintiff without removing a 14mm metallic foreign body that was embedded in Sklarz’s foot and found via x-ray, while he was under Farabaugh’s care.
Sklarz followed up with his primary care physician, as instructed by the emergency room physician, Dr. Cecilia Roman, whom the suit says also did not address the item in Sklarz’s foot and refused to prescribe stronger pain management than Tylenol.
On May 22, 2019, nine days after the plaintiff’s emergency room visit, Sklarz went instead to a podiatrist, Dr. Susan Gamble, who found the foot with the object to be extremely swollen with an infected abscess where the object was lodged. Diagnosed with necrotizing fasciitis, Sklarz’s left leg was amputated below the knee, the suit says.
The plaintiff was transferred back to the VAMC, where the suit added medical staff wrapped his right leg too tight with bandages, causing an existing ulcer to worsen, and Sklarz’s right leg was also amputated below the knee.
UPDATE
The plaintiff filed an amended complaint on April 22 and a second amended complaint on Sept. 12. Plaintiff’s second amended complaint asserted claims against defendant Abramson Center for Jewish Life and responding defendant, Hospital of the University of Pennsylvania.
According to the second amended complaint, with respect to responding defendant, plaintiff seeks compensatory damages under the Wrongful Death Act and Survival Act based on allegations arising out of alleged negligence at the Hospital of the University of Pennsylvania, from May 25, 2019 through May 27, 2019, involving the right heel and leg of plaintiff’s decedent.
On Sept. 30, the Hospital of the University of Pennsylvania filed a motion to dismiss the case for failure to state a claim upon which relief could be granted.
“Plaintiff’s second amended complaint fails to provide any factual foundation to establish a breach of any of the enumerated duties or to establish any actual or constructive knowledge on the part of responding defendant. Bald conclusory allegations are insufficient and fail to set forth the requisite foundation which is necessary to establish this element. Rather, the allegations of plaintiff’s second amended complaint are limited to the deficiencies and the conduct of various medical personnel and it cannot be fairly inferred that responding defendant had notice of this conduct and permitted it to continue,” the dismissal motion stated.
“Aside from specific instances of alleged negligent care, which is denied, nowhere in the second amended complaint does plaintiff state any facts against responding defendant, Hospital of the University of Pennsylvania, pertaining to a corporate liability claim specific to the care involving plaintiff’s decedent. Specifically, there are no facts in plaintiff’s second amended complaint that would support allegations of systemic negligence on the part of the Hospital of the University of Pennsylvania.”
According to the defendant, the plaintiff has failed to properly plead a claim for corporate negligence against responding defendant, and has instead pled a claim for vicarious liability for the actions of agents, servants and/or employees, but not for direct negligence.
Thus, the defendant requests that the plaintiff’s claim for corporate negligence as contained in Count III of plaintiff’s second amended complaint against the Hospital of the University of Pennsylvania be dismissed, for failure to state a claim upon which relief can be granted.
For counts of negligence and corporate negligence, the plaintiff is seeking damages, individually, jointly and severally, in excess of the applicable arbitration limits, including interest, cost of suit, delay damages and such other relief as this Honorable Court may deem appropriate.
The plaintiff is represented by Barry G. Magen of Kline & Specter, in Philadelphia.
The defendants are represented by Matthew E.K. Howatt and Veronica Jane Finkelstein of the U.S. Attorney’s Office, Daniel H. Tran and Kathleen M. Kramer of Marshall Dennehey Warner Coleman & Goggin and Jayne Risk of DLA Piper, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00754
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com