K.H. v. Kumar
Decision Date | 25 August 2015 |
Docket Number | No. 497 MDA 2014,497 MDA 2014 |
Citation | 2015 PA Super 177,122 A.3d 1080 |
Parties | K.H., a Minor, by his Parent and Natural Guardian, H.S., and Parent and Guardian, E.H., in their Own Right, Appellants v. Shakthi M. KUMAR, M.D., et al. |
Court | Pennsylvania Superior Court |
Joel J. Feller, Philadelphia, for appellants.
Elaine M. Moyer, Norristown, for Devenyi, appellee.
Michael M. Badowski, Camp Hill, for Diverio, Avallone and AO Orthopedics, appellees.
Brett W. Farrar, Camp Hill, for Mack and Lancaster Radiology, appellees.
Katherine B. Kravitz, Lancaster and Gary M. Samms, Philadelphia, for Lancaster Hospital, appellee.
Andrew K. Worek, Berwyn, for Kumar and Lancaster Pediatric Assoc., appellees.
Kimberly A. Boyer–Cohen, Philadelphia, for Smigocki, appellee.
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
K.H. through his parents, H.S. and E.H.,1 and his parents individually (collectively, “Appellants”), appeal the trial court's November 27, 2013, and February 19, 2014 orders granting summary judgment in favor of Appellees Shakthi Kumar, M.D.; Yvonne Siwek, M.D.; Lancaster Pediatric Associates, Ltd. (“Lancaster Pediatric”); Donald Diverio, Jr., D.O.; AO Orthopedics, Inc.; Vincent Avallone, Jr., D.O.; Julie A. Mack, M.D.; Gene C. Smigocki, M.D.; Lancaster Radiology Associates, Ltd. (“Lancaster Radiology”); Lancaster General Hospital (“LGH”), Atilla Devenyi, M.D.; and Regional Gastroenterology Associates of Lancaster, Ltd. (“Regional Gastroenterology”) (collectively, “Appellees”), and dismissing Appellants' amended complaint with prejudice. Although this case nominally presents several issues, their resolution principally rests upon our answer to one question: Whether, as the trial court ruled, the lack of an express statutory civil remedy under the Child Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301, et seq., implicitly precludes a common-law remedy in tort for harms sustained due to child abuse when a physician has failed to report reasonable suspicions that a child is a victim of abuse to the government authorities designated by the CPSL. After careful review of the record and the seventeen party briefs filed in this case, we reverse and remand for further proceedings.
This case presents this Court with various challenges to two trial court orders that entered summary judgment for Appellees and collectively dismissed all of Appellants' claims against the Appellees. Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides as follows:
In reviewing an order granting or denying summary judgment, we apply the following standard:
We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. We will only reverse the lower court's grant of summary judgment if there is a manifest abuse of discretion. Summary judgment should be granted only in cases where the right is clear and free of doubt. Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.
First v. Zem Zem Temple, 454 Pa.Super. 548, 686 A.2d 18, 20 (1996) (citations and internal quotation marks omitted).
First, 686 A.2d at 21 (citations modified).
As noted, we are constrained in this procedural posture to grant Appellants the most favorable account of the evidence of record. For present purposes, the trial court's account of the factual background and procedural history of this case suffices.
. The X-ray was performed and read by Dr. Julie Mack at LGH. Dr. Mack noted that [K.H.'s] lungs were clear, but that the X-ray showed healing fractures of the fifth and sixth ribs and flattening of the vertebral bodies at T8, T9, T12, L2, L3 and L4. Dr. Mack discussed her findings with Dr. Siwek by telephone. While concerned about the potential of child abuse, Dr. Mack concluded that the more likely cause of the injuries was a congenital issue secondary to [K.H.'s] premature birth. Dr. Siwek memorialized the conversation with an entry in her office chart and referred [K.H.] to Dr. Donald Diverio, a pediatric orthopedist at AO Orthopedics.
and vertebral deformities.
On October 2, 2002, [K.H.] was seen by Dr. Atilla Devenyi, a gastroenterologist at [Regional Gastroenterology]. Dr. Devenyi examined [K.H.] and noted a rash or bruise on his sternum and chest wall. Dr. Devenyi reported his findings to Dr. Kumar. [K.H.] was seen in Dr. Kumar's office on October 3, 2002, where she also observed the mark on his lateral chest wall and sternum. Dr. Kumar noted in her office chart, “Seen by Dr. Devenyi yesterday. Ordered PT/PTT, CBC with platelets
for a pattern seen on the chest that was suspicious for abuse. He also ordered a skeletal survey [.”] Later that day, Dr. Kumar spoke with Dr. Devenyi about the skeletal survey and laboratory tests that he ordered, and, following their conversation, the tests were canceled.
was performed [,] which showed a left frontal intracranial hemorrhage. Consequently, [K.H.] was transported via helicopter to Milton S. Hershey Medical Center. It was later confirmed that [K.H.] had suffered non-accidental injuries including “contusion in the high left parietal region with surrounding edema with mass effect, interhemispheric subdural hematoma, tentorium subdural hematoma, and small left...
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