Bloom v. Dubois Regional Medical Center

• Decision Date: 27 September 1991
• Citation: 409 Pa.Super. 83,597 A.2d 671
• Parties: , 2 NDLR P 101 Cindy L. BLOOM and Howard M. Bloom, Appellants, v. DUBOIS REGIONAL MEDICAL CENTER, Dr. James K. Fugate, and Robert DiGilarmo.
• Court: Pennsylvania Superior Court

Page 671

597 A.2d 671

409 Pa.Super. 83, 2 NDLR P 101

Cindy L. BLOOM and Howard M. Bloom, Appellants, v. DUBOIS REGIONAL MEDICAL CENTER, Dr. James K. Fugate, and Robert DiGilarmo.

Superior Court of Pennsylvania.

Argued Nov. 8, 1990.

Filed Sept. 27, 1991.

Rodney A. Beard, State College, for appellants.

James M. Horne, State College, for appellee Fugate.

Edward T.J. Graboski, Hollidaysburg, for appellee Dubois Regional.

Before DEL SOLE, BECK and HUDOCK, JJ.

BECK, Judge.

This is an appeal from an order granting preliminary objections and dismissing some but not all of a multi-count complaint. The substantive issues on appeal raise challenging questions regarding the sufficiency of plaintiffs-appellants' pleading. The first issue is whether appellants sufficiently pled gross negligence so as to fall within the exception to immunity provided to defendants-appellees by the Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, § 7114(a) (Purdon Supp.1990). The second issue is whether a claim for negligent infliction of emotional distress is sufficiently pled where the plaintiff does not allege that he witnessed the negligence of the defendants, which consisted of a failure to act, but does allege that he witnessed the injurious results of defendants' negligence.

Prior to addressing these questions, however, we must first examine whether or to what extent the order appealed from is final and appealable. Since the order dismissed only part of the complaint and did not dispose of the entire case, it is not a classic final order. We must determine whether the order is nevertheless to be considered final and appealable. ¹

We begin with a presentation of the facts and somewhat confusing procedural history of this case. On October 24, 1986, plaintiff appellant Cindy Bloom was voluntarily admitted to the psychiatric unit of DuBois Regional Medical Center (the "Hospital"). The next evening, Mrs. Bloom's husband (co-appellant) came to visit his wife. He found her hanging by the neck from shoestrings behind a bathroom door adjacent to her hospital room in an evident suicide attempt. Fortunately, Mrs. Bloom's attempt failed. On October 21, 1988, she and her husband instituted suit against the appellees, who are the Hospital, Robert DiGilarmo, the manager of the Hospital's psychiatric unit, and Dr. James Fugate, a psychiatrist employed by the Hospital. Mr. and Mrs. Bloom sought to recover for injuries they allegedly sustained as a result of this incident.

The original complaint contained six counts. All were premised on the allegation that Mrs. Bloom had informed defendants of her mental disorder upon her admission and requested treatment. The complaint also alleged that defendants owed Mrs. Bloom a duty of care which they had breached. In the first count, Mrs. Bloom alleged that Dr. Fugate had been reckless, wanton, negligent and careless in his examination and treatment of Mrs. Bloom by failing adequately to test, diagnose and supervise her. In the second count, Mrs. Bloom made substantially the same allegations against the Hospital, and also alleged that the Hospital had failed properly to train and supervise its staff. In the third count, Mrs. Bloom asserted that Mr. DiGilarmo had failed to provide adequate supervision, procedures and staffing at the Hospital. In counts four and five, Mr. Bloom alone was the plaintiff. He sought recovery of damages for the emotional distress he suffered as a result of witnessing his wife hanging by the neck and for medical expenses and time he expended for treatment of his wife as a result of the incident. In count six, both plaintiffs joined in a claim for Mr. Bloom's loss of consortium.

All three defendants filed answers with new matter in which they asserted the immunity provided to them by Section 7114(a) of the Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, § 7114(a) (Purdon Supp.1990). Section 7114(a) provides:

In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or criminally liable for such decision or for any of its consequences.

Id. ²

The defendants' assertion of immunity rested on the alleged failure of plaintiffs to plead either the gross negligence or willful misconduct required by Section 7114(a). All defendants also pleaded in new matter that appellant Mr. Bloom had failed to state a claim for negligent infliction of emotional distress. They alleged that Mr. Bloom's pleading of this tort was deficient in that he had failed to allege that he had witnessed the negligent act or event, i.e., the failure of the defendants adequately to care for Mrs. Bloom, but rather had only viewed the "aftermath" of that negligence.

Apparently in response to defendants' answers, plaintiffs sought leave of court to amend their complaint to add new allegations regarding the conduct of the defendants. The trial court granted permission to amend, but limited the extent of the amendments in the following memorandum:

In the original complaint [appellants] have plead [sic] "reckless, wanton, negligent and careless" acts on behalf of Defendants and in the prepared amended complaint they wish to characterize said conduct as gross negligence. This Court is satisfied that they have properly plead "reckless, wanton, negligent and careless" acts and the issue will no doubt become whether this rises to gross negligence. If it does not, this Court is satisfied that Plaintiffs cannot now change their cause of action to include gross negligence. If the original complaint satisfactorily pleads gross negligence, then an amendment is unnecessary. This Court will, however, permit Plaintiffs to file an amended complaint, but will restrict the amended complaint to defining the negligence of the Defendants as "reckless, wanton, negligent and careless."

Thus, the trial court determined that if the original complaint did not sufficiently plead gross negligence, the complaint could not be supplemented to add the necessary allegations, presumably because the statute of limitations on appellants' negligence claims had already expired. Although the court cited no precedent in support of this decision, it appears in essence to be a finding that to add allegations of gross negligence to a complaint already containing allegations of simple negligence would constitute the pleading of a new cause of action which is not permissible after the limitations period has passed. See Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978). ³

Appellants filed an amended complaint in which they supplemented the original allegations of wrongdoing by appellees. The amended complaint alleged that Dr. Fugate and the Hospital had a "special" duty of care toward Mrs. Bloom and that upon her admission she showed indications of "severe psychiatric and psychological disturbances, ... depression and paranoia" which created an "unreasonably high probability of self-destructive actions on her part." The amended complaint also alleged in several new paragraphs that the defendants all knew or had reason to know that their actions in dealing with Mrs. Bloom created an unreasonably high probability of self-destructive harm for Mrs. Bloom and that all defendants acted in conscious disregard of this substantial risk. Finally, the amended complaint contained additional specific allegations of wrongdoing by defendants, including, inter alia, that the defendants had failed to obtain adequate information concerning Mrs. Bloom's possibly suicidal condition on admission and had failed properly to medicate and clinically treat her.

All defendants immediately filed preliminary objections. ⁴ Dr. Fugate demurred to all counts in which he was a named defendant, i.e., counts I, IV, V and VI. He argued that to the extent the amended complaint continued to plead simple negligence, he was immune, and that to the extent it attempted to plead gross negligence, this was a new cause of action barred by the statute of limitations. He also sought dismissal of Mr. Bloom's emotional distress claim on the ground that it failed to plead that Mr. Bloom had witnessed the tortious act itself and that Mr. Bloom failed to plead that he had suffered physical injury as a result of his emotional distress. The Hospital and Mr. DiGilarmo both filed preliminary objections in the nature of a motion to strike. They sought to strike largely those portions of the complaint that had been added in the amendment, namely, those portions alleging conduct in conscious disregard of a substantial risk, on the ground that these averments could not be included in the amended complaint under the terms of the trial court's order permitting the amendment and were beyond the statute of limitations.

In the order appealed from, the trial court granted Dr. Fugate's demurrer and the Hospital and Mr. DiGilarmo's motion to strike, dismissed Counts I, IV, V and VI in their entirety, and struck the portions of Counts II and III (against the Hospital and DiGilarmo alone) that had been added by the amendment. The result of this order is that Dr. Fugate has been completely dismissed from the case as to all claims by both plaintiffs. Moreover, Mr. Bloom has suffered the dismissal of all of his individual claims (including his claims for emotional distress, consortium and medical expenses) against the Hospital and DiGilarmo. Mrs. Bloom, on the other hand, has suffered the dismissal of all of her claims against Dr. Fugate but of only a portion of...