Matharu v. Muir

• Decision Date: 28 June 2011
• Citation: 29 A.3d 375,2011 PA Super 134
• Parties: Baljinder S. MATHARU and Jessica A. Matharu, Individually and as Administrators of the Estate of Milan Singh Matharu, Deceased, Appelleesv.Scott D. MUIR, D.O., Fiorina Pellegrino, D.O., Hazleton Women's Care Center and Muir OB/GYN Associates, P.C., Appellants.
• Court: Pennsylvania Superior Court

29 A.3d 375

2011 PA Super 134

Baljinder S. MATHARU and Jessica A. Matharu, Individually and as Administrators of the Estate of Milan Singh Matharu, Deceased, Appellees

v.Scott D. MUIR, D.O., Fiorina Pellegrino, D.O., Hazleton Women's Care Center and Muir OB/GYN Associates, P.C., Appellants.

Superior Court of Pennsylvania.

Argued Nov. 18, 2010.Filed June 28, 2011.

Aaron S. Jayman, Camp Hill, for appellants.Timothy A. Shollenberger, Enola, for appellees.BEFORE: FORD ELLIOTT P.J., MUSMANNO, BENDER, BOWES, DONOHUE, SHOGAN, ALLEN, OLSON and OTT, JJ.OPINION BY MUSMANNO, J.:

Scott D. Muir, D.O. (“Dr. Muir”), Fiorina Pellegrino, D.O. (“Dr. Pellegrino”), Hazleton Women's Care Center (“Hazleton”) and Muir OB/GYN Associates, P.C. (“Muir Associates”) (collectively, “Defendants”) appeal from the Order denying, in part, their Motion for the entry of summary judgment against Baljinder S. Matharu (“Father”) and Jessica A. Matharu (“Mother”), individually and as Administrators of the Estate of Milan Singh Matharu (“Child”) (collectively, “Plaintiffs”). We affirm.

The trial court set forth the undisputed facts underlying the instant appeal as follows:

1. The instant wrongful death/survival action was instituted by summons on April 25, 2007, followed by a Complaint on June 26, 2007.

2. An Answer and New Matter was filed by Defendants on October 4, 2007.

3. [Mother] gave birth to her first child [“S.M.”] on February 21, 1997.

4. [Mother's] pre-natal care for [S.M.] was rendered by a physician other than Defendants herein.

5. Blood work during the 1997 pregnancy indicated [that Mother] was Rh-negative. [FN].

6. [Father] was determined in 1997 to be Rh-positive.

7. After [the] delivery of [S.M., Mother] was administered RhoGAM (Rh immunoglobulin).

8. In 1997, [Mother] was aware that she was Rh-negative and that she had been administered RhoGAM.

9. In 1998, [Mother] became pregnant again, and in May, 1998, came under the care of Defendants, Dr. Muir and Dr. Pellegrino, at Defendant Hazleton Women's Care Center.

10. [Mother] was again found to be Rh-negative during this second pregnancy.

11. [Mother] was not given an injection of RhoGAM at 28 weeks [of] gestation on the second pregnancy.

12. [Mother] delivered her second child [“S.”] on October 3, 1998.

13. [Mother] did not receive an injection of RhoGAM within 72 hours of this birth.

14. Following the birth of [S.] and while [Mother] was still in the hospital, [Dr.] Muir told both [Mother and Father] that no RhoGAM had been administered to [Mother] and that she had become sensitized during the third trimester.

15. The discharge summary evidences a conversation between [Dr.] Muir and [Mother and Father] regarding the ramifications of Rh sensitization, including the effects on an unborn fetus. It further indicates that [Mother and Father] stated [that] they desired no more children. The patient was advised to seek early prenatal care at the next pregnancy. [FN]

16. Within a few weeks of [S.'s] birth, [Mother and Father] contacted a law firm[,] which sought to obtain a copy of [Dr.] Muir's medical chart on [Mother].

17. After consultation with a lawyer, and within two (2) years of [S.'s] birth, [Mother and Father] did not file a lawsuit regarding the failure to administer RhoGAM.

18. In 2000, [Mother] became pregnant again, but underwent an abortion at Allentown Women's Center.

[None of the

Defendants] provided any care or treatment for this pregnancy.

19. [Mother] did not receive RhoGAM at the time of her 2000 abortion.

20. In late 2001, [Mother] became pregnant a fourth time. She telephoned [Dr.] Muir and had a discussion with him regarding this pregnancy and her sensitization.

21. [Mother] returned to the care of Defendants on March 12, 200[2], at 14.3 weeks [of] gestation. [Dr.] Muir sent [Mother] to Lehigh Valley Hospital for consultation in the Department of Maternal Fetal Medicine.

22. On August 6, 2002, [Mother] gave birth to her fourth child, [M.], at Lehigh Valley Hospital.

23. The last chart note of any contact between [Mother] and Defendants' office is a call by [Mother] on July 29, 2002.

24. [Mother's] last office visit with Defendants was [on] July 8, 2002.

25. [Mother] never presented for a follow-up [postpartum] visit with Defendants after the birth of [M.]

26. Subsequent to this birth, [Dr.] Muir sent [Mother] a letter requesting her to schedule a post-partum appointment.

27. In and around March, 2003, after receiving no response, [Dr.] Muir sent a certified letter to [Mother] dismissing her from his practice. The letter was signed for and received by [Mother] on March 15, 2003.

28. As of March 15, 2003, [Mother] was no longer a patient of Defendants and no longer had a doctor-patient relationship with Defendants.

29. [Mother] suffered a miscarriage early in her fifth pregnancy on January 23, 2005.

30. In mid[-]2005, [Mother] became pregnant for a sixth time.

31. [Mother] did not consult [Defendants], and [Defendants] provided no care or treatment during this sixth pregnancy. No doctor-patient relationship was formed between [Mother] and Defendants during this sixth pregnancy.

32. For this sixth pregnancy in 2005, [Mother] received her pre-natal care from Dr. Vourtsin and the Department of Maternal Fetal Medicine at Lehigh Valley Hospital.

33. During this sixth pregnancy, [Mother] knew she was iso-immunized and that there were certain risks associated with pregnancy.

34. [Mother] became aware that she had become iso-immunized in October, 1998, after the birth of her second child, [S.]

35. [Mother's] sixth pregnancy proceeded without complication until November, 2005, or 26 weeks [of] gestation.

36. In late October, 2005, fetal blood work showed anemia, so [Mother] underwent intraperitoneal transfusion.

37. On November 10, 2005, [Mother] returned to Lehigh Valley Hospital. While undergoing a PUBS procedure with intrauterine transfusion (percutaneous umbilical blood sampling), [Child's] heart rate became non-reassuring and abruption was suspected.

38. An emergency C-section was performed on November 10, 2005. [Child] was born and then transferred to Children's Hospital of Philadelphia, where he died two days later.

In addition to the foregoing chronological undisputed facts, it is relevant to point out that the parties do agree that the negligence[,] which forms the basis for this lawsuit[,] occurred in 1998[,] when [Dr.] Muir failed to administer RhoGAM during

[Mother's second pregnancy

at 28 weeks or after the delivery of this second child. [FN] ...

Trial Court Opinion, 2/20/09, at 1–5 (footnotes in original).

At the close of discovery, Plaintiffs and Defendants filed their respective Motions for summary judgment. The trial court ultimately granted in part and denied in part Defendants' Motion for summary judgment. Relevant to this appeal, the trial court denied Defendants' Motion for summary judgment against Plaintiffs as to their wrongful death and survival actions.¹ Trial Court Order, 3/2/09, at ¶ 1. In its Order, the trial court further stated that its decision involved a controlling question of law as to which there is a substantial ground for difference of opinion “and that an immediate appeal from the Order may materially advance the ultimate termination of the matter.” Id. at ¶ 4. The Defendants subsequently filed a Petition for permission to appeal the trial court's interlocutory Order, which this Court granted.

On appeal, Defendants present the following claims for our review:

A. Will Pennsylvania recognize a cause of action after the expiration of the statute of limitations where the only alleged negligence[,] which forms the basis for the lawsuit[,] occurred in 1998 during [Mother's] second pregnancy, and was known to [Plaintiffs] at that time, but it was not until after [Mother's] sixth pregnancy that [Plaintiffs] initiated the lawsuit in 2007[?]

B. Whether the trial court erred in denying [Defendants'] Motion for Summary Judgment on the basis of no duty when [Defendants] did not provide any care to [Mother] during her 2005 pregnancy and therefore[,] no doctor-patient relationship was formed[?]

C. Whether the trial court erred in denying [Defendants'] Motion for Summary Judgment on the basis of assumption of a known risk when [Plaintiffs] were advised that because [Mother] did not receive RhoGAM in 1998[,] she was at an increased risk for difficulties for all future pregnancies[?]

Brief for Appellants at 4.

Defendants first claim that the trial court improperly failed to enter summary judgment in their favor, arguing that Plaintiffs' negligence cause of action is barred by the applicable statute of limitations. Id. at 11. Defendants state that although their alleged negligence occurred in 1998, “during [Mother's] second pregnancy, and was known to [Plaintiffs] at that time,” Plaintiffs did not file their lawsuit until 2007. Id. According to Defendants, the applicable two-year statute of limitations for medical malpractice actions began to run “when the alleged negligent act had been done, or in other words, when the duty was breached.” Id. at 20 (quoting Bigansky v. Thomas Jefferson Univ. Hosp., 442 Pa.Super. 69, 658 A.2d 423, 426 (1995)). Defendants argue that Pennsylvania has not extended a physician's duty to non-patient, third parties except in cases involving communicable diseases. Brief for Appellants at 24–25 (citing Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999)).

Initially, we are cognizant of our standard of review. “Generally, in an appeal from a grant or denial of summary judgment, the appellate court's review is limited to determining whether the lower court committed an abuse of discretion or an error of law.” Stanton v. Lackawanna Energy, Ltd., 584 Pa. 550, 886 A.2d 667, 675 (2005). “[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”...