MEDIA – A state court judge has overruled preliminary objections on the topic of corporate negligence from Crozer Health defendants, in litigation from the widow of a Clifton Heights man which alleged that her late husband died during a cataract removal surgery, because the attending physician and anesthesiologist ignored his extensive history of diagnosed medical issues and administered too much anesthesia to him.
Karen Fleet (as Administratrix of the Estate of Brandon Fleet, deceased) of Clifton Heights first filed suit in the Delaware County Court of Common Pleas on July 7 versus 2BD Anesthesia, P.C. of Bala Cynwyd, Crozer Keystone Surgery Center at Haverford, Crozer Health Surgery Center at Haverford and Crozer Health Haverford Surgery Center, all of Haverford, Crozer Health of Springfield, Delaware County Memorial Hospital and DCMH, Inc. of Drexel Hill, plus Prospect DCMH, LLC and Prospect Crozer, LLC, both of Los Angeles, Calif.
According to the suit, the decedent had a history of retinopathy, Type I diabetes, high blood pressure and end stage renal disease.
“On the morning of July 7, 2021, Brandon Fleet presented to the Surgery Center for an elective cataract extraction with lens implant in his right eye, to be performed by Dr. Kelly Krespan, with Dr. William Goldstein serving as the Surgery Center’s anesthesiologist. After his arrival at the Surgery Center at approximately 7 a.m., Brandon Fleet’s blood pressure was recorded as 223/128, which is a dangerously elevated blood pressure. At approximately 7:50 a.m., Brandon Fleet’s blood pressure was recorded as 225/127 which is a dangerously elevated blood pressure,” the suit said.
“Despite Brandon Fleet’s severe hypertension on the morning of July 7, 2021, Dr. Goldstein and Dr. Krespan elected to move forward with the cataract extraction. At approximately 7:50 a.m., Dr. Goldstein medicated Brandon Fleet with labetalol. The cataract procedure commenced at approximately 8 a.m., at which time Brandon Fleet’s blood pressure was 223/128. At or near the commencement of the procedure, Brandon Fleet was administered fentanyl and midazolam. At or near the commencement of the procedure, Brandon Fleet was administered a local anesthetic of proparacaine and lidocaine. During the procedure at or around 8:30 a.m., Brandon Fleet was administered additional midazolam.”
The suit added that during the procedure, Brandon Fleet reported that he wanted to sit up and had difficulty breathing at which time his oxygen levels were reportedly in the ‘mid-90s’. According to the suit, after Brandon Fleet’s report of breathing difficulties, Dr. Goldstein and/or Dr. Krespan decided to proceed with laryngeal mask airway (LMA) sedation at or around 8:45 a.m., at which time Brandon Fleet was administered propofol and additional midazolam.
Upon attempted conversion from MAC sedation to LMA sedation, Dr. Goldstein and/or Dr. Krespan had difficulty obtaining Brandon Fleet’s airway and further noted irregularities with his heartbeat.
“At or around the time that LMA sedation was attempted, Brandon Fleet lost his pulse and blood pressure. A code was eventually commenced at 8:54 a.m., at which time Brandon Fleet’s heart was in asystole. At or around 8:56 a.m., Brandon Fleet was intubated. The code continued until the paramedics arrived at 9:15 a.m., at which time Brandon Fleet was pulseless. At or about 9:25 a.m., the paramedics departed the Surgery Center for transport of Brandon Fleet to Bryn Mawr Hospital at which time Brandon Fleet remained pulseless,” the suit stated.
“During the paramedic transport to Bryn Mawr Hospital, Brandon Fleet regained his pulse and blood pressure. Brandon Fleet arrived at the Bryn Mawr Hospital emergency room at or around 9:45 a.m. At Bryn Mawr Hospital, Brandon Fleet was diagnosed with a hypoxic/ischemic brain injury with the absence of brainstem reflexes and was pronounced dead on July 9, 2021. As a result of defendants’ negligence on July 7, 2021, Brandon Fleet suffered injuries, including pain, suffering, embarrassment, humiliation, mental suffering and death.”
The Crozer defendants lodged preliminary objections on Sept. 25, finding in its own view that the plaintiff’s allegations of corporate negligence are misdirected.
“In this action, plaintiff alleges claims of corporate negligence against moving defendants, an ambulatory surgical center. However, those entities should not be held liable on a direct corporate theory of negligence under Pennsylvania law. Under Pennsylvania Rule of Civil Procedure 1028(a)(4), any party is permitted to file a preliminary objection in the nature of a demurrer for failure to plead legal sufficiency. A hospital, in some circumstances, may owe a duty to uphold a certain standard of care directly to its patients. In Thompson v. Nason Hospital, the Supreme Court [of Pennsylvania] recognized that ‘the corporate hospital of today has assumed the role of comprehensive health center with responsibility for arranging and coordinating the total health care of its patients.’ The doctrine of corporate negligence, as set forth in Thompson, has been expanded to encompass HMOs and nursing home facilities,” the objections stated.
“In Sutherland v. Monongahela, the Superior Court declined to extend the negligence principles outlined in Thompson to a physician’s office in a matter involving a surgical procedure performed at a hospital by a non-hospital employee. The Superior Court [of Pennsylvania] went on to say ‘We note that the policy considerations underlying the Pennsylvania Supreme Court’s creation of the theory of corporate liability for hospitals are not present in the situation of a physician’s office. In Thompson, the Supreme Court recognized that ‘the corporate hospital of today has assumed the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of its patients.’ The same cannot be said to a physician’s practice group.”
The Crozer defendants argued that “Pennsylvania law is clear that the doctrine of corporate negligence may not be pursued against a defendant when the defendant is a physicians’ office.”
“A physician’s private office has no duty to a plaintiff because they do not assume the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of its patient. Here, plaintiff has asserted corporate negligence claims against moving defendants, an ambulatory surgical center. However, that type of entity cannot be held liable as it does not assume the role of a comprehensive health center with responsibility for arranging and coordinating the total health care of its patient,” the objections went on to say.
“Rather, those entities are more akin to physician’s office as they provide limited, specialty outpatient treatment. Further, at no time has plaintiff pled that moving defendants had the responsibility for arranging and coordinating the total health care of its patients. Accordingly, plaintiff’s corporate negligence claims against moving defendants should be dismissed.”
In an Oct. 2 response to the preliminary objections, the plaintiff largely denied them as conclusions of law.
“It is clear that Pennsylvania law permits plaintiffs to maintain corporate negligence claims against ambulatory surgical centers. Plaintiff’s complaint properly pleads the elements of a corporate negligence claim, which arises out of the Surgery Center’s direct negligence at the facility on the day of the cataract surgery. The preliminary objections should be overruled,” the response stated.
“To the extent moving defendants seek to characterize the contents of the complaint, any such characterizations are specifically denied as the complaint is a writing which speaks for itself. It is clear that Pennsylvania law permits plaintiffs to maintain corporate negligence claims against ambulatory surgical centers. Plaintiff’s complaint properly pleads the elements of a corporate negligence claim, which arises out of the Surgery Center’s direct negligence at the facility on the day of the cataract surgery. The preliminary objections should be overruled.”
On Oct. 5, the Crozer defendants motioned to consolidate the instant case with a virtually-identical action brought by the plaintiff against a similar slate of defendants in the Delaware County Court of Common Pleas last year, at CV-2022-003033.
“Both lawsuits arise from the same medical care and treatment rendered to plaintiff’s decedent, Brandon Fleet on or around July 7, 2021. Further, both lawsuits arise from the same incident and involve identical legal and factual issues. The second filed action, Karen Fleet, as Administratrix of the Estate of Brandon Fleet, deceased v. 2BD Anesthesia, P.C., Et.Al, in the Delaware County Court of Common Pleas, Docket No. CV-2023-005809, brings suit against additional defendants and provides further specifics regarding the claims at issue,” the motion stated, in part.
“The consolidation of these actions for discovery and trial will accomplish the goal of judicial economy and will not prejudice any party to these proceedings or the Court. Upon consolidation, these cases should be consolidated to the second-filed action and proceed under the case management order to be entered in the second-filed action to afford the additional defendants and their counsel the time necessary to prepare any defenses.”
On Nov. 1, counsel for all parties mutually agreed to the proposed consolidation, with the action filed last year serving as the lead case.
UPDATE
Delaware County Court of Common Pleas Judge Barry C. Dozor denied the Crozer defendants’ objections, in a judicial order issued on Dec. 1.
“Upon consideration of the preliminary objections of defendants Crozer Keystone Surgery Center at Haverford, Crozer Keystone Surgery Center at Haverford (a Department of Delaware County Medical Center), Delaware County Memorial Hospital, DCMH, Inc., Prospect DCMH, Inc., Prospect Crozer, LLC and/or Crozer Health and plaintiff’s response thereto, it is hereby ordered and decreed that the preliminary objections are overruled. Moving defendants are required to file an answer in compliance with the Rules of Civil Procedure,” Dozor said.
For counts of negligence, corporate negligence, survival and wrongful death, the plaintiff is seeking, individually, jointly and severally, damages in excess of the applicable arbitration limits.
The plaintiff is represented by Seth D. Wilson of Morris Wilson Knepp Jacquette, P.C., in Conshohocken.
The defendants are represented by Frank A. Gerolamo, Joseph L. Garbarino and Angela N. Parrilla of Gerolamo McNulty Divis & Lewbart, plus Gary M. Samms and Raymond A. Petruccelli of Obermayer Rebmann Maxwell & Hippel, all in Philadelphia.
Delaware County Court of Common Pleas case CV-2023-005809
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com