Matharu v. Scott D. Muir, D.O., Fiorina Pellegrino, D.O., Hazleton Women's Care Ctr. & Muir Ob/Gyn Assocs., P.C.

• Decision Date: 21 February 2014
• Parties: 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.
• Court: Pennsylvania Superior Court

86 A.3d 250

2014 PA Super 29

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 Feb. 21, 2014.

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 DONOHUE, J.:

Scott D. Muir, D.O. (“Dr. Muir”), Fiorina Pellegrino, D.O. (“Dr. Pellegrino”), Hazelton Women's Care Center (“Hazelton”) and Muir OB/GYN Associates, P.C. (“Muir Associates”) (collectively, “Appellants”) 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, “Appellees”). This Court previously affirmed the trial court's order in an en banc decision dated June 28, 2011. On August 22, 2013, the Supreme Court of Pennsylvania vacated this decision and remanded the case to this Court for reconsideration in light of its decision in Seebold v. Prison Health Serv., 618 Pa. 632, 57 A.3d 1232 (2012). For the reasons set forth herein, we conclude that this case is distinguishable from Seebold. Accordingly, we again affirm the trial court's order.

In its written opinion, the trial court aptly summarized the relevant and undisputed factual background of this case:

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 [Appellants] 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 [Appellants] herein.

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

[FN] The designation of Rh-negative blood is relevant because of the potential effect it has on future pregnancies. Where a mother's blood is Rh-negative and the father's blood is Rh-positive, a child can be conceived who is Rh-positive. Although the mother's and baby's bloodstream is [ sic ] separate, the baby's Rh-positive blood could enter the mother's system, causing the mother to create antibodies against the Rh factor and to treat the baby like an intruder. Under these conditions, the mother is said to be sensitized or iso-immunized. To prevent this, the mother is given an injection of Rh immunoglobulin known as RhoGAM at 28 weeks [of] gestation and again within 72 hours after birth if the baby is determined to be Rh-positive.

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 [ ] Dr. Muir and Dr. Pellegrino, at [ ] 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 [Sandeep] on October 3, 1998.

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

14. Following the birth of [Sandeep] 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. [Mother] was advised to seek early prenatal care at the next pregnancy.[FN]

[FN] Failing to administer RhoGAM is relevant because of the harmful effect it can have on future pregnancies.

16. Within a few weeks of [Sandeep'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 [Sandeep'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 Appellants] 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 [Appellants] 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 [Appellants'] office is a call by [Mother] on July 29, 2002.

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

25. [Mother] never presented for a follow-up [postpartum] visit with [Appellants] 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 [Appellants] and no longer had a doctor-patient relationship with [Appellants].

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 [Appellants], and [Appellants] provided no care or treatment during this sixth pregnancy.No doctor-patient relationship was formed between [Mother] and [Appellants] 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. [Milan Matharu] 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 [Sandeep].[FN]

[FN] Plaintiffs claim that [Appellants] failed to administer RhoGAM, failed to take an adequate history to determine the blood type of [Father], and failed to take an adequate history of [Mother] to determine if she had been administered a RhoGAM injection within 72 hours of her prior delivery.

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

After the completion of discovery, Appellants filed a motion for summary judgment. In an order dated February 20, 2009, the trial court granted the portion of the motion contending that Pennsylvania law does not allow a parent to recover for the loss of a child's consortium, but denied Appellants' demand for dismissal of Appellees' wrongful death and survival actions. Trial Court Order, 2/20/2009, at ¶¶ 1–2. On March 2, 2009, the trial court amended its order, adding 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.” Trial Court Order, 3/2/2009, at ¶ 4.

On May 1, 2009, this Court granted Appellants' petition for permission to appeal. After oral argument before a three-judge panel, we determined that the case should be decided by the Court sitting en banc. On June 28, 2011, we issued an en banc order and decision affirming the trial court's March 2, 2009 order. Matharu v. Muir, 29 A.3d 375 (Pa.Super.2011) ( en banc ), vacated,––– Pa. ––––, 73 A.3d 576 (2013). On August 22, 2013, the Supreme Court of Pennsylvania granted Appellants' petition for allowance of appeal, vacated our decision and order, and remanded the case to this Court “for reconsideration in light of Seebold v. Prison Health Serv., 618 Pa. 632, 57 A.3d 1232 (2012).” Matharu v. Muir, ––– Pa. ––––, 73 A.3d 576 (2013). In response, this Court ordered the parties to file supplemental briefs, which the parties completed on December 10, 2013.

On remand, Appellants present the following two issues for our consideration and determination:

I. Whether the trial court and this Court...