Medical Battery Claim Dismissed From Medical Malpractice Case

In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.

In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.

The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.

The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.

However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.

The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.

Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.

The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 6, 2025).

You've Got To Know When To Hold 'Em, Know When to Fold 'Em

In the case of Dhaduk v. Patel, No. 2024-CV-5196 (C.P. Lacka. Co. March 31, 2025 Nealon, J.), the court granted demurrers against a Plaintiff’s claim in a case arising out of a neurologist and his wife who sued an internist seeking to recover $700,000.00 for gambling losses that allegedly occurred at a Florida casino.

The Plaintiffs allege that the neurologist agreed to play blackjack on behalf of the internist with the express understanding that the internist would be responsible for any resulting gambling losses suffered by the neurologist in the process. The Plaintiffs claimed that the internist had not reimbursed the neurologist for $200,000.00 for chips that the neurologist purchased and lost and for an additional $500,000.00 that the neurologist obtained from his casino line of credit and ultimately lost playing blackjack.

According to the Opinion, the Defendant doctor filed demurrers to the Plaintiff's claims of breach of contract, promissory estoppel, fraud, and unjust enrichment. 

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a lengthy Opinion outlining the current status of the law on these types of claims in the context of request for payment of gambling indebtedness.

Judge Nealon noted that, unlike other states with comparable statutes barring the collection of gambling debts and voiding any contracts for the payment of gambling indebtedness, the Pennsylvania legislature has never amended the Pennsylvania prohibitory statute in order to restrict its debt collection ban to illegal gambling or to create an exception for debts resulting from lawful gambling activities. 

Judge Nealon confirmed that the law in Pennsylvania remains that gambling debts between private individuals are uncollectible and that any related contracts regarding gambling are void.

As such, based upon the plain language of the applicable Pennsylvania statute, as well as a review of Florida’s corresponding statute, the court ruled that the Defendant could not be found liable in this case. Accordingly, the Defendant’s demurrers to all of the claims asserted by the Plaintiff were sustained.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image: Photo by Anna Shvets on www.pexels.com.

New Rule Requiring Judges To Be In Courtroom For Jury Selection Goes Into Effect

The Pennsylvania Supreme Court's amendment of the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement goes into effect today, April 1, 2025.

This Rule can be found under Pa. R.C.P. 220.3 and can be seen at this LINK.

Here is a LINK to my article on this topic that appeared in the Pennsylvania Lawyer magazine five years ago in a March/April 2020 edition of the magazine.  The article reviews the jurisprudence on the issue back then, which jurisprudence has since led to the current amendment to the Pennsylvania Rules of Civil Procedure regarding voir dire.  The article also reviews the benefits of having a Judge stay on the bench during voir dire, especially for the prospective members of the jury.

Source of image:  Photo by Nothing Ahead on www.pexels.com.

PLEASE SAVE THE DATE FOR THE LACKAWANNA PRO BONO GOLF TOURNAMENT (AND MY CLE AT THE SAME)

 

Allegations of Recklessness Allowed to Stand in a Complaint

In the case of Johnson v. Parderlikes, No. 5920-CV-2023 (C.P. Monroe Co. Jan. 21, 2025 C. Daniel Higgins, Jr., J.), the court overruled a Defendant’s Preliminary Objections against allegations of recklessness in a civil litigation matter.

The court reviewed the current status of the law and noted that, under Pa. R.C.P. 1019(b), allegations regarding malice, intent, knowledge, and other conditions of the mind may be generally alleged.

This court also noted that the Superior Court has concluded that allegations of wanton conduct is a condition of the mind that may be alleged generally. This court also noted that the Superior Court had held that, because allegations of recklessness are synonymous with allegations of wanton and willful misconduct, allegations of recklessness may also be alleged generally.

As such, the court overruled the Defendant’s Preliminary Objections.

Anyone wishing to review a copy of this decision may click this LINK.

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 20, 2025).

Organizer of Sports Tournament Who Required Attendees To Stay At a Hotel Dismissed as a Defendant in Premises Liability Case

In the case of E.Z. v. JSKLD Hospitality Enterprise, LLC, No. 2-23-CV-835-RJC (W.D. Pa. March 14, 2025 Colville, J.), a federal district court granted a Motion to for Judgment on the Pleadings in favor of a certain Defendant sued by a Plaintiff in a premises liability case.

In this matter, the Plaintiff sued the owner of the hotel where the accident happened along with a Defendant entity that ran ice hockey tournaments and who required the participants in the tournament to stay at the hotel.

The entity that ran the ice hockey tournaments filed a Motion for Judgment on the Pleadings seeking to be dismissed on the grounds that it had no duty to maintain the premises where the accident happened.   

In this matter, the district court reaffirmed the general rule of law that premises liability does not extend to parties who are not in control of the relevant premises. Rather, the premises liability is focused on the relationship between the individual or entity in control of the premises and the business invitee who ventured on the premises.

The court ruled that the Plaintiffs cannot impute a premises liability duty upon a third-party who is not affiliated with the property.

More specifically, the court ruled that the fact that the organizer of the tournament merely place a hotel on an approved list for the attendees of the tournament did not impose a duty on the organizer of the tournament to inspect that hotel. Furthermore, any such alleged duties were entirely duplicative of the duties already imposed upon the hotel operator itself.

The court offered the additional rationale in support of its Motion to Dismiss by asserting that extending duties to persons without control over the property has no social utility and would, instead, reduce the safety incentives for the actual property owner.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Reed Smith office in Philadelphia for bringing this case to my attention.

Co-Owner of Premises Not an Indispensable Party to a Slip and Fall Lawsuit Where that Co-Owner Does Not Exercise Control Over the Premises

In the case of Simone v. Alam, No. 35 MAP 2024 (Pa. March 20, 2025) (Op. by Mundy, J.), the Pennsylvania Supreme Court, in a slip and fall concluded that a tenant in common who did not exercise possession or control over the property is not an indispensable party in a premises liability action.

According to the Opinion, the Plaintiff was a resident in a multi-tenant building, who slipped and fell on ice in a common area.

The Plaintiff sued the owner of the premises and asserted that he was responsible for the common areas.

The trial court had dismissed the Plaintiff’s Complaint for failure to join an indispensable party, that being the owner’s brother, who was a co-owner of the property. The trial court had held that all co-owners must be joined in a premises liability action. The Superior Court affirmed.

As noted above, the Pennsylvania Supreme Court reversed. The Supreme Court found that liability in premises liability cases is based upon possession and control, not mere ownership. The court noted that, since the record revealed that the owner who was sued was the sole manager who controlled the property, the owner’s brother was not an indispensable party under the circumstances.

Anyone wishing to review a copy of this decision may click this LINK.


I thank the Plaintiff’s attorney, Jacqueline Morgan, as well as Michael W. Landis, of the same law firm of Lowenthal & Abrams, P.C. in Bala Cynwyd, PA for brining this case to my attention.