PITTSBURGH – West Penn Hospital and its affiliated companies, who disavowed any and all liability for negligence which allegedly caused a baby boy to develop severe hypoxic ischemic encephalopathy after his delivery, provided an answer to the suit after having their preliminary objections denied by the presiding judge.
J.M. (a minor, by and through Amber Brandon and James Morris Sr., his parents and natural guardians) Amber Brandon and James Morris Sr., individually, filed suit in the Allegheny County Court of Common Pleas on May 11 versus West Penn Hospital, West Penn Allegheny Health System, Inc. (doing business as “West Penn Hospital”) and Allegheny Health Network. All parties are of Pittsburgh.
“On Dec. 21, 2021, Amber Brandon, then 34 years old and 32 weeks pregnant with minor plaintiff, presented for a routine obstetrical appointment with Sonia Aneja, M.D. At this appointment, Dr. Aneja noted that Brandon’s blood pressure was normal, her 28-week labs were normal and that the only potential complication of the pregnancy was that minor plaintiff’s gallbladder was dilated. Dr. Aneja instructed Brandon to present for a fetal ultrasound on Dec. 28, 2021, followed by another routine obstetrical visit on Jan. 4, 2022,” the suit said.
“On Dec. 28, 2021, Brandon, now 33 weeks pregnant, underwent a fetal ultrasound that was interpreted by Ronald Thomas, M.D., as entirely normal, including minor plaintiff’s gallbladder. At 6:42 p.m. on Jan. 2, 2022, Brandon developed contractions and significant bleeding from her vagina. Brandon called 911 and reported her symptoms. At or about 6:45 p.m., Northwest EMS was dispatched to Brandon’s apartment. The Northwest EMS crew, comprised of emergency medical technicians Michael Gonabe and Natalie Drab, arrived at Brandon’s residence at 6:49 p.m.”
The EMT’s initial impression was that Brandon suffered a vaginal hemorrhage and readied her for transport to West Penn Hospital, activating an Advanced Life Support Notification so that hospital personnel would be ready to receive Brandon to expedite care and treatment for her.
However, despite this notification, the suit states that no one came to greet or assist the EMTs or provide any assessment, triage or treatment to Brandon, upon her arrival to the hospital. Rather, Brandon laid on a stretcher in the emergency department for the next 20-25 minutes without any care, treatment, evaluation, assessment and/or triage from defendant Hospital and/or its medical staff.
During that period, it is believed that Brandon suffered a placental abruption that deprived the minor plaintiff of oxygen, such that without immediate delivery via Caesarean section, it would result in the child suffering a brain injury or death. Brandon was not attended to until she was in the emergency department for 23 minutes, according to the complaint.
“At 7:58 p.m., 25 minutes later after her arrival in defendant Hospital’s emergency department, Brandon was assessed by an unknown healthcare worker of defendant hospital who concluded that minor plaintiff did not have a heartbeat. Shortly thereafter, Brandon was assessed by third-year obstetrical resident Nicholas Scioscia, D.O. Dr. Scioscia applied a fetal heart monitor to Brandon and noted the presence of heartbeat, albeit non-reassuring fetal bradycardia,” the suit stated.
“Immediately following his evaluation of Brandon, Dr. Scioscia called a Code ‘O’ for non-reassuring fetal heart tones. Dr. Scioscia discussed the case with attending obstetrician Jenny Halfhill, D.O. Dr. Halfhill decided to proceed directly to the operating room for an emergency Caesarean delivery. Minor plaintiff was delivered without difficulty at 8:15 p.m. As the placenta was delivered, several large clots were observed consistent with placental abruption.”
When the baby was born, he was noted to be floppy, with no spontaneous breathing activity, leading him to be incubated, intubated and provided with chest compressions, which improved his heart rate and oxygen levels.
After a sample of the baby’s blood was analyzed, it was assessed that the minor plaintiff suffered severe hypoxic ischemic encephalopathy. He has since been diagnosed as having suffered a catastrophic brain injury, which has led to microcephaly and craniosynostosis, for which the baby will require reconstructive surgery.
The defendants filed preliminary objections on June 28, disavowing liability for the young boy’s severe injuries.
“The complaint does not provide that Mr. Morris was present during any injury or any treatment of Ms. Brandon or J.M. For Mr. Morris to blanketly claim that, essentially, the entire realm of care that Ms. Brandon received at West Penn caused him emotional distress is outside the bounds of allowable negligent infliction of emotional distress claims in Pennsylvania,” the objections stated, in part.
“As in Bloom, Mr. Morris is asserting an omission of care as the fundamental basis for his claims. This, as the court ruled there, is not the type of claim that is recoverable under a theory of negligent infliction of emotional distress. Accordingly, Mr. Morris does not meet his burden in any type of negligent infliction of emotional distress claim.”
According to the defense, “many children are born each day premature, and while emotionally upsetting, these deliveries are not altogether uncommon.”
“The Court did not intend to establish that every obstetrics physician has a duty to protect his or her patients from the emotionally taxing effects of delivering a premature baby. Herein, is a case where an unfortunate, but common, issue in obstetrical care occurred – a premature birth caused by unforeseeable complications,” the objections stated.
“This is not the type of claim envisioned by the Toney court and its progeny. Moreover, Ms. Brandon did not have a prior relationship with any of the alleged employees or ‘healthcare workers’ she complains against (to the extent she identifies them with particularity at all). Rather, the complaint has asserted them to be acting in their general duty and capacity as healthcare workers at a hospital dealing with an emergency situation.”
The objections further argued that insufficient pleadings were contained throughout the complaint, including as to claims for corporate liability.
Allegheny County Court of Common Pleas Judge Arnold I. Klein denied the defendants’ preliminary objections in an order issued Aug. 23.
“Upon consideration of the preliminary objections of defendants West Penn Hospital, West Penn Allegheny Health System, Inc., (doing business as “West Penn Hospital”) and Allegheny Health Network in this matter, it is hereby ordered, adjudged and decreed that preliminary objections are denied,” Klein said.
UPDATE
Due to their preliminary objections being overruled, the defendants filed an answer to the complaint on Oct. 12, which denied the plaintiffs’ substantive allegations and provided affirmative defenses in their own new matter.
“Defendants hereby assert the affirmative defense of the statute of limitations. Plaintiffs’ complaint fails to state a claim upon which relief may be granted as to defendants. Plaintiffs’ comparative negligence, contributory negligence and/or assumption of the risk are a complete and/or partial defense to the entirety of plaintiffs’ complaint. The damages and injuries allegedly sustained by plaintiffs were not proximately caused by the answering defendants. As discovery continues, defendants reserve the right to claim plaintiffs’ injuries and damages were the result of a pre-existing condition. If plaintiffs sustained any injuries or damages, said injuries and damages were solely and exclusively caused by circumstances over which defendants did not have any control and/or responsibility and/or by supervening, intervening and/or independent causes over which defendants did not have any control,” per the new matter in question.
“If plaintiffs sustained injuries as alleged, which are denied, plaintiffs’ injuries were caused by persons, entities, occurrences, instrumentalities or events unrelated to and not under the control of defendants. In the event it is determined that plaintiffs failed to obtain the required certificate of merit, defendants request dismissal of this complaint. Defendants hereby give notice that they intend to rely upon such other and further affirmative defenses as may become available and apparent in discovery in this matter. To the extent that evidence develops during discovery to demonstrate the application of the two schools of thought doctrine, defendants plead that doctrine as providing a complete defense for any alleged negligence and/or malpractice. Defendants assert all defenses and limitations on damages that are available to them under the Medical Care Availability and Reduction of Error Act. Any damages to which plaintiffs would otherwise be entitled shall be reduced by any amount that plaintiffs have received or with reasonable certainty will receive from insurance required by the Affordable Care Act.”
For multiple counts of professional negligence, corporate liability and negligent infliction of emotional distress, the plaintiffs are seeking damages in excess of $50,000 and a trial by jury.
The plaintiffs are represented by Brendan B. Lupetin and Gregory R. Unatin of Lupetin & Unatin, in Pittsburgh.
The defendants are represented by Kristin L. Pieseski and Derek A. Candela of Marshall Dennehey Warner Coleman & Goggin, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-005612
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com