Cooper v. Frankford Health Care System

• Decision Date: 20 October 2008
• Docket Number: No. 2755 EDA 2007,2755 EDA 2007
• Citation: 960 A.2d 134,2008 PA Super 248
• Parties: Denise COOPER, Individually and as Administratrix of the Estate of Harold S. Cooper, Deceased, v. FRANKFORD HEALTH CARE SYSTEM, INC., Individually and/or Doing Business as the Frankford Hospital of the City of Philadelphia and/or Doing Business as Frankford Hospital-Torresdale and the Frankford Hospital of the City of Philadelphia, Individually and/or Doing Business as Frankford Hospital-Torresdale and Frankford Hospital-Torresdale and Clifton Hall, M.D.
• Court: Pennsylvania Superior Court

960 A.2d 134

2008 PA Super 248

Denise COOPER, Individually and as Administratrix of the Estate of Harold S. Cooper, Deceased, v. FRANKFORD HEALTH CARE SYSTEM, INC., Individually and/or Doing Business as the Frankford Hospital of the City of Philadelphia and/or Doing Business as Frankford Hospital-Torresdale and the Frankford Hospital of the City of Philadelphia, Individually and/or Doing Business as Frankford Hospital-Torresdale and Frankford Hospital-Torresdale and Clifton Hall, M.D.

No. 2755 EDA 2007

Superior Court of Pennsylvania.

Argued August 20, 2008.

Filed October 20, 2008.

Paul D. Brandes, Conshocken, for appellant.

Robert A. Graci, Harrisburg, for appellee.

BEFORE: STEVENS, MUSMANNO and BENDER, JJ.

OPINION BY BENDER, J.:

¶ 1 Denise Cooper ("Mrs. Cooper"), individually and as administratrix of the estate of her spouse, Harold S. Cooper, M.D., deceased ("Dr. Cooper"), (collectively, "Plaintiff"), appeals from the September 12, 2007 order that sustained the preliminary objections in the nature of a demurrer of the defendants, Frankford Health Care System, Inc., The Frankford Hospital of the City of Philadelphia, Frankford Hospital — Torresdale, (collectively, "Hospital"), and Clifton Hall, M.D. ("Dr. Hall"), (collectively, "Defendants"), resulting in the dismissal of Plaintiff's wrongful death complaint. The trial court determined that Plaintiff did not plead sufficient facts in her complaint to establish that the defendants owed a duty to protect the decedent, Dr. Cooper, from suicide. We affirm.

¶ 2 The following factual recitation is adapted from Plaintiff's complaint. Dr. Cooper, an anesthesiologist, was employed or had privileges at Hospital and, prior to December of 2004, Defendants "knew and/or should have known that Dr. Cooper had a prior personal history of drug or controlled substance abuse or addiction ... but that Dr. Cooper was recovered from or in recovery from such abuse or addiction." Complaint, 5/14/07, at ¶ 19. Plaintiff averred that Defendants "monitored and kept track of controlled substances inventories and uses with the hospital, as part of the regular course of business at the Hospital." Id. at ¶ 20.

¶ 3 In December of 2004, Defendants "suspected and/or allegedly confirmed that Dr. Cooper was improperly taking and/or administering to himself a narcotic/anesthetic, Fentanyl." Id. at ¶ 21. Plaintiff claimed that Defendants "knew and/or should have known the risks, consequences and/or dangers inherent in narcotic use among health professionals, and particularly among anesthesiologists." Id. at ¶ 22.

¶ 4 According to Plaintiff, on Friday, December 10, 2004, Dr. Hall, who was Hospital's Director of the Department of Anesthesiology at the relevant time, id. at ¶ 16, "confronted Dr. Cooper, during work hours and without any support persons present or available, about Dr. Cooper's alleged taking and/or use of Fentanyl[,]" id. at ¶ 23, and Dr. Hall directed Dr. Cooper to take a urine drug test that day, id. at ¶ 25. Neither Dr. Hall nor Hospital advised Mrs. Cooper (who is also a physician) about the meeting or about Dr. Cooper's suspected drug use. Id. at ¶ 24. Still, Hospital failed to remove Dr. Cooper from the on-call schedule for the following day, Saturday, December 11, 2004. Id. at 26.

¶ 5 On Sunday, December 12, 2004, after completing his on-call responsibilities, Dr. Cooper returned home and committed suicide in his automobile that was parked in his driveway. Id. at ¶ 27. Mrs. Cooper discovered her husband's body upon arriving home with their two minor children. Id. at ¶ 28.

¶ 6 Plaintiff initiated this case on December 5, 2006, by filing a praecipe to issue a writ of summons. On December 13, 2006, Plaintiff filed a "Motion for Leave to Conduct Discovery in Aid of Obtaining Any Required Certificates of Merit and to Draft and File a Sufficient Complaint and Motion for Stay of Proceedings" (hereinafter, "Motion for Discovery"), in which she requested, inter alia, all policies and procedures pertaining to "identifying, confronting, addressing, dealing with, monitoring, testing, screening, disciplining, investigating, and/or supervising a hospital employee and/or physician suspected of using and/or taking Fentanyl and/or any other drug." Motion for Discovery, 12/13/06, at ¶ 20(a). The trial court issued an order, dated March 26, 2007, which denied Plaintiff's Motion for Discovery.

¶ 7 On May 14, 2007, without the benefit of the discovery requested in her motion, Plaintiff filed a complaint in which she claimed that Defendants' negligence caused Dr. Cooper's suicide. Complaint at ¶ 29. Counts I and II of the complaint set forth claims of negligence against Dr. Hall and Hospital; Count III set forth a claim of vicarious liability of Hospital for Dr. Hall's conduct; Count IV set forth a claim under the Wrongful Death Act, 42 Pa.C.S. § 8301, against all Defendants; and Count V set forth a claim of negligent infliction of emotional distress against all Defendants vis-á-vis Mrs. Cooper. Plaintiff noted in her complaint that she was asserting, in part, claims of professional negligence or liability against each Defendant. Id. at ¶¶ 7, 9, 11, 15. This explained Plaintiff's perceived need to obtain certificates of merit, as noted in her Motion for Discovery.

¶ 8 In any event, in her brief to this Court, Plaintiff asserts that the crux of her negligence claims arise "out of [Defendants'] improper or negligent confrontation of [Dr. Cooper], concerning his drug abuse/relapse and [Defendants'] subsequent continuing neglect in failing to take steps to protect him from thereafter harming himself as a result of their inappropriate conduct." Plaintiff's brief at 6. See also Plaintiff's brief at 20 (summarizing that each claim is "based upon [Defendants'] improper or negligent confrontation of Dr. Cooper concerning his drug abuse/relapse and their subsequent continuing neglect in failing to take steps to protect him from thereafter harming himself (or others, for that matter) as a result of [Defendants'] improper confrontation").

¶ 9 On June 5, 2007, Defendants filed preliminary objections, in the nature of a demurrer, to all claims asserted in Plaintiff's complaint. On July 5, 2007, again without the benefit of her requested discovery, Plaintiff filed timely certificates of merit as to each Defendant. Nevertheless, by order dated September 12, 2007, (and docketed on September 14, 2007), the trial court sustained Defendants' preliminary objections and dismissed Plaintiff's complaint. In support of its decision, the trial court stated, inter alia, that the facts pled in the complaint did not establish, as a matter of law, that Defendants owed a duty to protect Dr. Cooper from suicide. Order, 9/12/07, n. 1 (citing Campo v. St. Luke's Hosp., 755 A.2d 20 (Pa.Super.2000)).

¶ 10 Plaintiff filed a timely notice of appeal and, thereafter, a timely concise statement of matters complained of on appeal, Pa.R.A.P.1925(b), in accordance with the trial court's directive, which included the issues now raised in this appeal, set forth in Plaintiff's brief as follows:

I. UNDER MCNEIL V. JORDAN, 586 Pa. 413, 894 A.2d 1260 (2006), DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN DENYING [PLAINTIFF'S] REQUEST FOR LEAVE TO CONDUCT PRE-COMPLAINT DISCOVERY AND FOR A STAY OF PROCEEDINGS, WHICH LATER CONTRIBUTED TO [PLAINTIFF'S] COMPLAINT BEING DISMISSED BY A SUBSEQUENT SEPTEMBER 12, 2007 ORDER SUSTAINING DEFENDANTS' PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER FOR LACK OF SUFFICIENT FACTS, WHEN [PLAINTIFF] DEMONSTRATED

GOOD FAITH, PROBABLE CAUSE, AND THAT TO FILE A SUFFICIENT COMPLAINT, THE INFORMATION WAS MATERIAL AND NECESSARY TO ALLEGE FACTS DEMONSTRATING [DEFENDANTS'] DUTY TO PROTECT ... DECEDENT AND THE SPECIAL CIRCUMSTANCES OF DECEDENT'S SUICIDE FOR WARRANTING AN EXCEPTION TO THE GENERAL RULE[?]

II. DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN SUSTAINING [DEFENDANTS'] PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER AS TO COUNTS I THROUGH V OF THE COMPLAINT FOR FAILURE TO SUFFICIENTLY PLEAD A PRIMA FACIE CLAIM ON NEGLIGENCE AGAINST [DEFENDANTS], BY FINDING THAT [PLAINTIFF'S] COMPLAINT INSUFFICIENTLY PLED THAT A RELATIONSHIP EXISTED BETWEEN DECEDENT, DR. COOPER, AND [DEFENDANTS], GIVING RISE TO A DUTY OF CARE, AND IN LIGHT OF A PRIOR ORDER DENYING [PLAINTIFF'S] PRE-COMPLAINT DISCOVERY[?]

DID THE TRIAL COURT ERR AND/OR ABUSE ITS DISCRETION IN SUSTAINING [DEFENDANTS'] PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER TO COUNTS I THROUGH V OF THE COMPLAINT, BY FINDING THAT A CAUSAL CONNECTION COULD NOT EXIST BETWEEN [DEFENDANTS'] ASSERTED NEGLIGENCE AND DECEDENT'S DEATH, AS HIS SUICIDE COULD NOT, AS A MATTER OF LAW, HAVE BEEN A REASONABLY FORESEEABLE EVENT, EVEN THOUGH [DEFENDANTS] HAD NOTICE OF DECEDENT'S MENTAL STATE AND OF THE HIGH SUICIDE RATES AMONG ANESTHESIOLOGISTS, AND MCPEAKE V. CANNON, 381 Pa.Super. 227, 553 A.2d 439 (1989) RECOGNIZES THAT [PLAINTIFF] MAY HAVE A WRONGFUL DEATH ACTION[?]

Plaintiff's brief at 5.¹

¶ 11 A central inquiry of this appeal is whether a legal duty existed or arose on the part of Dr. Hall (and Hospital) to protect Dr. Cooper from harming himself. As Plaintiff emphasizes, her negligence claim rests on the allegedly improper manner in which Dr. Hall confronted Dr. Cooper and the failure to protect Dr. Cooper from harming himself thereafter. See, e.g., id. at 20. Nevertheless, the trial court, in dismissing the complaint, concluded that Plaintiff could not establish the critical "duty" element of her negligence cause of action.² In her first issue, however, Plaintiff contends that, had the trial court granted her motion for pre-complaint discovery, she would have obtained information upon which she could have pled the existence of a duty owed from Dr. Hall and Hospital to the decedent, Dr. Cooper, and, in turn, her complaint would not have been subject to dismissal several months later by demurrer.

¶ 12 "Generally, on review of an order...