PITTSBURGH – A Western Pennsylvania woman who claimed that the University of Pittsburgh Medical Center at McKeesport was negligent in its care of her late father, after he suffered a pair of heart attacks which ultimately claimed his life, now adds that the hospital system has not responded to her discovery requests.
Jamie Toth (individually and as Administratrix of the Estate of John William Cox) of McKeesport first filed suit in the Allegheny County Court of Common Pleas on July 22 versus UPMC and UPMC Health System of Pittsburgh, plus UPMC McKeesport, of McKeesport.
“On Feb. 2, 2022, Cox presented to the UPMC McKeesport Emergency Department around 4 p.m. with complaints of chest pain, shortness of breath, sweating and discomfort. Plaintiff Toth reported to hospital staff that Cox began complaining of chest pain around 3 p.m. Cox was taken to the hospital by his daughter, Toth, because he was unable to take himself to the hospital due to his condition,” the suit said.
“Upon arriving to UPMC McKeesport, Toth repeatedly asked a staff member at the hospital to see her father, because he was in significant pain, as well as experiencing a shortness of breath, sweating and discomfort. Toth was frightened because she believed her father was experiencing a heart attack. According to the medical record, at 4:14 p.m., a staff member at the hospital took Cox’s vital signs, after which Cox remained in the waiting room, waiting to be seen by a physician. Toth pleaded with hospital staff on several occasions for her father to be seen by a physician, fearing that the hospital was negligently taking too long to treat her father’s condition and that he may die as a result.”
The suit continued that Cox was not seen by a physician until 5:30 p.m., and during a time when he was waiting for a hospital-ordered EKG, High-Sensitivity Troponin test and a chest X-Ray, he became unresponsive and suffered cardiac arrest.
Despite multiple rounds of CPR, endotracheal intubation, Cox suffered a second round of cardiac arrest – and further despite the efforts of the hospital’s Rapid Response Team, Cox passed away at 8:23 p.m. After his death, an emergency room physician noted the most likely cause of death was “acute coronary thrombosis.”
“The preliminary cause of death listed in the death summary was myocardial infarction. The cause of death listed on the death certificate was acute myocardial infarction. After having pleaded with hospital staff for over an hour for her father to be seen, Toth then witnessed the futile attempts of hospital staff to resuscitate her father,” the suit stated.
“Plaintiff Toth watched as her father became unresponsive and after hospital staff performed multiple futile attempts of resuscitation, she watched her father ultimately pass away. On Feb. 12, 2022, Cox’s wife received a letter from the Director of Patient Safety at UPMC McKeesport, which stated, ‘The purpose of this letter is to confirm that during John’s recent stay beginning Feb. 2, 2022, he presented to the emergency room with chest discomfort and testing was ordered, but was not necessarily carried out as timely as our protocols suggest.’ The actions and inactions of the hospital and its staff were negligent, grossly negligent, reckless, and outrageous and demonstrated a conscious disregard for the rights and safety of plaintiff’s decedent.”
The defendants filed preliminary objections on Aug. 24, looking to strike “scandalous and impertinent” allegations and for failure to state claims upon which relief could be granted.
“Plaintiff’s complaint included allegations related to healthcare provider documentation, which is wholly irrelevant to the case at issue. For example, allegations in the complaint include that the defendants failed to ‘timely and properly document resuscitation efforts made on plaintiff’s decedent. The documentation of resuscitation efforts have absolutely no bearing on whether the decedent received timely care in the Emergency Department at UPMC McKeesport,” the objections stated, in part.
“Moreover, Paragraph 266 of the complaint states, ‘In the medical decision-making, which was authored hours after Mr. Cox’s death, modified three times thereafter, and signed three days later, an emergency room physician noted that the Cath Lab was ‘reactivated’ at 6:44 p.m. Such conduct – healthcare provider documentation and modification thereof – certainly had no influence in leading to the result of the alleged untimely care provided to the decedent in the Emergency Department at UPMC McKeesport. As such, these allegations should be stricken from plaintiff’s complaint.”
The objections also asked that punitive damages be stricken from the complaint, on the grounds that the claims fail to support an argument for such damages.
In a Sept. 13 response to the preliminary objections, plaintiff counsel countered that the objections “lack legal merit, rationale and credibility.”
“Plaintiff’s complaint may and must set forth a chronology of events that form the basis of the cause of action at issue. The timing of the documentation that describes the events that resulted in Mr. Cox’s death reveals a foundation of underlying facts from which allegations of negligence and punitive damages are logical. It is disingenuous to claim that simply referring to the timing of documentation that describes the treatment that forms the basis of plaintiff’s complaint is ‘scandalous and impertinent’ to the extent that it requires judicial expungement from the complaint. Defendants’ objection is frivolous and must be denied in this regard,” the response stated, in part.
“The specific allegations in plaintiff’s complaint are egregious breaches of the standard of care for which UPMC defendants had a duty to prevent. Accordingly, it is readily apparent that plaintiff’s complaint contains the appropriate allegations to substantiate that UPMC defendants acted in a reckless manner. Lastly, UPMC defendants’ request to strike plaintiff’s allegations of recklessness and punitive damages is premature. Plaintiff is entitled to conduct discovery to confirm whether defendants’ actions, or lack thereof, were in reckless disregard of the rights and safety of others, including plaintiff’s decedent. Therefore, plaintiff’s complaint, in its entirety, has been pled with sufficient specific allegations of recklessness to survive preliminary objections and plaintiff respectfully requests that this Court overrule defendants’ preliminary objections regarding recklessness and punitive damages.”
On Oct. 17, Allegheny County Court of Common Pleas Judge Daniel D. Regan overruled the defense’s preliminary objections. In a Nov. 15 answer to the case, the UPMC defendants asserted various new matter defenses.
“This defendant asserts those applicable defenses under the Medical Care Availability and Reduction of Error Act (MCARE Act) and/or Health Care Services Malpractice Act. To the extent that the evidence reveals that the decedent had a pre-existing condition that caused or contributed to the claimed injury, this defendant pleads the existence of that pre-existing condition as an affirmative defense. To the extent the evidence reveals any failure to mitigate, this defendant pleads this as an affirmative defense. This defendant pleads that, without admitting any liability, the alleged damages and injuries, if any, were not caused by this defendant but were instead caused by others not under this defendant’s control or supervision. This defendant pleads that, without admitting any liability, the alleged damages and injuries, if any, were caused by intervening and/or superseding causes. This defendant pleads as total and/or partial defenses to this action the doctrines of contributory negligence, comparative negligence and assumption of the risk,” the new matter stated.
“Plaintiff is precluded from recovering damages for future medical expenses to the extent such damages would be covered by a health insurance plan providing minimum essential coverage mandated by the provisions of the Patient Protection and Affordable Care Act, and all of the Affordable Care Act’s attendant rules and regulations. Plaintiff is barred from recovering any past and/or future premiums, deductibles or other expenses related to the health insurance plan providing minimum essential coverage as required by law. Plaintiff is barred from recovering any past medical expenses to the extent plaintiff failed to obtain the minimum essential coverage as required by the Affordable Care Act. Plaintiff’s claims are barred in whole or in part by the immunity afforded by the Executive Order of the Governor of the Commonwealth of Pennsylvania to Enhance Protections for Health Care Professionals dated May 6, 2020. Plaintiff has failed to state a claim for punitive damages upon which relief can be granted. Plaintiff has failed to state a claim for negligent infliction of emotional distress upon which relief can be granted.”
Two days later, counsel for the plaintiff refuted the new matter in its entirety as conclusions of law to which no response was required.
UPDATE
On Jan. 27, plaintiff counsel filed a motion to compel answers to discovery requests and depositions from the defendants.
“On Aug. 4, 2022, plaintiff served plaintiff’s first set of interrogatories directed to defendants; however, to date, no answers have been provided despite requests by plaintiff. Additionally, on Aug. 4, 2022, plaintiff’s counsel requested that defendants (1) identify the triage nurse that saw Mr. Cox on the day he presented to UPMC McKeesport and (2) identify the nurse(s) responsible for Mr. Cox’s care upon admission. Plaintiff’s counsel also requested that defense counsel provide dates that these individuals along with other providers involved in the care at issue were available for depositions. To date, no one has been identified, and no dates have been provided despite plaintiff’s multiple requests,” the motion stated.
“Defendants’ failure to provide discovery answers and provide a date to record the requested depositions is severely prejudicing plaintiff’s ability to move the case forward and get the case ready for trial. Accordingly, plaintiff requests an order requiring the defendants to provide full and complete discovery answers and dates to record the depositions of the individuals identified within the next 10 days.”
For multiple counts of survival, wrongful death, direct negligence, professional negligence and negligent infliction of emotional distress, the plaintiff is seeking, jointly and severally, compensatory and punitive damages in excess of the jurisdictional limits of compulsory arbitration, plus costs and interest.
The plaintiff is represented by Harry S. Cohen, Todd D. Bowlus and Benjamin E. Cohen of Harry S. Cohen & Associates, in Pittsburgh.
The defendants are represented by George P. Kachulis and Sally A. Frick of Dickie McCamey & Chilcote, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-22-009192
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com