Foflygen v. R. Zemel, M.D. (PC)
| Citation | 420 Pa.Super. 18,615 A.2d 1345 |
| Parties | Janice A. FOFLYGEN, Appellant, v. R. ZEMEL, M.D. (PC); Allegheny General Hospital, Allegheny Anesthesiology Associates, Inc., Sergio Betancourt, M.D., Kira Kislan, M.D., Douglas F. Clough, M.D., Martin McGrogan, M.D., Frederick Weniger, M.D., Lisa Lockerman, R.N., Appellees. |
| Decision Date | 23 September 1992 |
| Court | Superior Court of Pennsylvania |
Mark Neff, Washington, for Allegheny Anesthesiology, appellee.
David J. Singley, Pittsburgh, for Clough, appellee.
Louis C. Long, Pittsburgh, for Allegheny General Hospital, appellee.
John A. Bass, Pittsburgh, for Betancourt, appellee.
Before TAMILIA, KELLY and MONTGOMERY, JJ.
This is an appeal from a series of orders entered by the trial court granting the appellees' various preliminary objections in the nature of demurrers to the appellant's complaint. We quash in part and affirm in part.
The relevant facts and procedural history are as follows. The appellant, Janice A. Foflygen, read an article in the Pittsburgh Press concerning an operation known as a near total gastric diversion ("stomach stapling procedure") to assist overweight people in the quest to lose weight. The appellant, who suffered from obesity, called upon one of the appellees, Dr. Sergio Betancourt, the surgeon mentioned in the article. The appellant met Dr. Betancourt at his office, which he shared with another named party in this lawsuit, Dr. Reuben R. Zemel, to discuss the possibility of undergoing the "stomach stapling" procedure to alleviate her obesity. Dr. Betancourt questioned the appellant about her previous medical history and what other weight control methods she had attempted in the past. After the appellant decided to proceed with the "stomach stapling" procedure, Dr. Betancourt referred her to Dr. Douglas F. Clough (appellee), who conducted a pre- Three weeks later, the appellant was admitted to Allegheny General Hospital to undergo the "stomach stapling" procedure. Upon her admission, the appellant was examined by Dr. Kira Kislan (appellee). The appellant alleges that Dr. Kislan then had her sign a standard hospital consent form entitled "Consent Upon Admission for Routine Diagnosis and Treatment" without discussing either the operation or alternative modes of treatment.
surgery physical examination of the appellant. During the performance of this physical examination, the appellant alleges that Dr. Clough did not discuss any aspect of the operation or mention that there were alternative methods for treating the appellant's obesity.
Additionally, the appellant further alleges that Dr. Kislan instructed Nurse Lisa Lockerman, R.N. (appellee), to obtain the appellant's signature on another standard hospital consent form entitled, "Consent to Operation, Anesthetics, and Special Procedures." The appellant also asserts that Nurse Lockerman did not advise her of the risks concerning the operation nor did she suggest to the appellant any possible alternative ways of treating her obesity problem.
The appellant was then examined by Dr. Martin McGrogan (appellee), of the Allegheny Anesthesiology Associates. The purpose of this examination was to determine the proper anesthetic to utilize for the appellant's operation. The appellant alleges that neither Dr. McGrogan, nor Dr. Weniger (appellee), who was the actual anesthesiologist during the operation, discussed with the appellant the possibility of the alternative methods of treatment for her obesity problem.
The following day, March 22, 1988, the appellant underwent the "stomach stapling" procedure. The operation was performed by Dr. Betancourt with Dr. Kislan and Dr. Cmolik 1 assisting. Shortly thereafter, the appellant asserts that she suffered complications from the operation. These complications include a pulmonary embolism, acute respiratory distress, phlebitis of the arm, acute bronchitis, stroke and a right carotid artery occlusion. The appellant claims all of the above medical problems stem directly from the operation.
On March 21, 1990, the appellant praeciped for a writ of summons which was served upon the following appellees, Dr. Sergio Betancourt, Dr. Kira Kislan, Dr. Douglas Clough, Dr. Martin McGrogan, Dr. Frederick Weniger, Nurse Lisa Lockerman, Allegheny General Hospital, and Allegheny Anesthesiology Associates. 2 The appellant's six count complaint was subsequently filed on June 11, 1990.
In Count I of her complaint, the appellant set out a cause of action against all of the appellees based upon a battery theory of lack of informed consent. Preliminary objections in the nature of demurrers to Count I were filed by the following appellees: Allegheny General Hospital, Nurse Lockerman, Doctors Clough and Weniger and the Allegheny Anesthesiology Associates. All of the above-mentioned appellees argued that only the surgeons who actually performed the operation may be found liable under the battery theory of informed consent. Therefore, because they did not operate on the appellant, she failed to state an informed consent cause of action against them. The trial court sustained these demurrers and dismissed Count I as to the above-mentioned appellees.
Count II of the appellant's complaint set out a cause against all of the appellees based upon a negligence theory of failure to obtain the appellant's informed consent. All of the appellees filed preliminary objections in the nature of demurrers to Count II, arguing that Pennsylvania does not permit recovery under a negligence theory of lack of informed consent. Thus, the appellant failed to state a cause of action for In Count III of her complaint, the appellant expounded a cause of action against Doctors Betancourt, Zemel, Clough, and the Allegheny General Hospital based upon their purported negligence in conducting unnecessary surgery upon the appellant in view of her high-risk status and because of the availability of other, less dangerous, non-surgical means of treating her obesity problem. Dr. Clough filed a preliminary objection in the nature of a demurrer to Count III. In his demurrer, Dr. Clough contended that because he was not involved in the performance of the operation, he could not be held liable even if the appellant's surgery was found to be unnecessary. Dr. Clough's demurrer to Count III was sustained, thus dismissing him from the lawsuit.
which recovery could be had. The trial court sustained the demurrers of all of the appellees and dismissed Count II.
Count IV alleged a misrepresentation cause of action against Dr. Betancourt. No preliminary objections were filed by Dr. Betancourt to Count IV.
Count V set forth a cause of action against Doctors Betancourt, Zemel, Kislan, Nurse Lockerman, and the Allegheny General Hospital under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Pa.UTPCPL) (73 Pa.S.A. § 201-1 et seq.). Preliminary objections in the nature of demurrers were filed by all of the above-mentioned appellees to Count V, arguing that the Pa.UTPCPL is inapplicable to medical services. The trial court sustained the appellees' demurrers and dismissed Count V.
Finally in Count VI, the appellant propounded in paragraph 54 a negligence cause of action against Doctors Betancourt, Zemel, Weniger, Allegheny Anesthesiology Associates, and Allegheny General Hospital alleging that all of the above negligently administered fluids to the appellant during the operation, causing her to suffer congestive heart failure and all of the other previously mentioned alleged complications. In paragraph 55, the appellant alleged that the above-mentioned appellees were otherwise negligent during the operation. The trial court sustained the appellees' preliminary objections to paragraph 55. However, the trial court then directed the appellant to file a more specific pleading in paragraph 55. This timely appeal followed.
On appeal, the appellant raises seven issues for our review:
I. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANT ALLEGHENY GENERAL HOSPITAL SINCE IT WAS VICARIOUSLY LIABLE FOR THE ACTIONS OF ITS AGENTS, DR. BETANCOURT, DR. McGROGAN, DR. KISLAN, DR. CMOLIK AND NURSE LOCKERMAN?
II. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANTS WENIGER AND ALLEGHENY ANESTHESIOLOGY ASSOCIATES SINCE THEY FAILED TO OBTAIN THE INFORMED CONSENT OF THE PLAINTIFF PRIOR TO THE ADMINISTRATION OF ANESTHESIA?
III. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT I OF THE COMPLAINT AS IT RELATED TO DEFENDANTS CLOUGH, LOCKERMAN, ALLEGHENY GENERAL HOSPITAL, WENIGER AND ALLEGHENY ANESTHESIOLOGY ASSOCIATES, SINCE THEY WERE INVOLVED AS JOINT TORTFEASORS IN THE LACK OF INFORMED CONSENT ON THE BASIS OF THEIR CONCERT OF ACTION IN THE TREATMENT OF THE PLAINTIFF?
IV. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT II OF THE COMPLAINT AS TO ALL DEFENDANTS SINCE THE NEGLIGENT FAILURE TO OBTAIN THE INFORMED CONSENT OF THE PLAINTIFF PRIOR TO SURGERY AND ADMINISTRATION OF ANESTHESIA CAN OR SHOULD SET OUT
V. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT V OF THE COMPLAINT AS TO ALL DEFENDANTS SINCE THE UNFAIR TRADE PRACTICES ACT DOES OR SHOULD APPLY TO MEDICAL SERVICES?
VI. WHETHER THE LOWER COURT ERRED IN DISMISSING COUNT III OF THE COMPLAINT AS IT RELATED TO DEFENDANT CLOUGH SINCE HE FAILED TO PERFORM HIS DUTY TO INSURE UNNECESSARY SURGERY WAS NOT CONDUCTED UPON THE PLAINTIFF AND WAS A JOINT TORTFEASOR WITH DR. BETANCOURT ON THE BASIS OF HIS CONCERT OF ACTION IN THE TREATMENT OF THE PLAINTIFF?
VII. WHETHER THE LOWER COURT ERRED IN REQUIRING A MORE SPECIFIC PLEADING REGARDING PARAGRAPH 55 OF THE COMPLAINT (COUNT VI) SINCE THE PARAGRAPH WHEN READ IN CONJUNCTION WITH PARAGRAPH 56 ADEQUATELY SET OUT A CAUSE OF ACTION BASED UPON RES IPSA LOQUITUR?
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