Troxel v. A.I. duPont Institute

• Decision Date: 04 February 1994
• Docket Number: CHES-PENN
• Citation: 636 A.2d 1179,431 Pa.Super. 464
• Parties: Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D. Appeal of: Kevin BROWNGOEHL, M.D. Grace and Daniel TROXEL, Administrators of the Estate of Trevor Robert Troxel, Deceased, Appellants, v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D., Appellees, Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D. Appeal ofHEALTH SERVICES, INC.
• Court: Pennsylvania Superior Court

Page 1179

636 A.2d 1179

431 Pa.Super. 464

Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D.

Appeal of: Kevin BROWNGOEHL, M.D.

Grace and Daniel TROXEL, Administrators of the Estate of Trevor Robert Troxel, Deceased, Appellants, v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D., Appellees, Grace and Daniel TROXEL, Administrators of the Estate of Trevor Troxel, Deceased v. A.I. duPONT INSTITUTE, Ches-Penn Health Services, Inc. and Kevin Browngoehl, M.D.

Appeal of CHES-PENN HEALTH SERVICES, INC.

Superior Court of Pennsylvania.

Argued Nov. 9, 1993.

Filed Feb. 4, 1994.

Joseph H. Foster, Philadelphia, for Browngoehl.

Nancy L. Goldstein, Philadelphia, for Troxel.

Fred A. Greenberg, Media, for A.I. duPont Institute.

John L. Aris, Philadelphia, for Ches-Penn Health Services, Inc.

Before WIEAND, OLSZEWSKI and POPOVICH, JJ.

WIEAND, Judge:

In this medical malpractice action against Pennsylvania and Delaware health care providers, the trial court entered summary judgment in favor of A.I. duPont Institute, a Delaware hospital. The plaintiffs and the Pennsylvania health care providers have appealed. After careful review of the complex issues in this appeal, we affirm.

On October 30, 1987, Mary Siple, a non-party, gave birth to a female child, Ashley. Because Ashley was born with microcephaly ¹ and a pes cavus deformity of the leg, ² she was taken for treatment to Ches-Penn Health Services, Inc., a Pennsylvania medical services center, where she was examined by Dr. Kevin Browngoehl, a Pennsylvania physician. Dr. Browngoehl suspected that Ashley was suffering from cytomegalovirus (CMV) ³ and referred her to duPont for additional tests. At duPont, Ashley was seen by Dr. Borkowski, a Delaware neurologist. The tests conducted at duPont, under Dr. Borkowski's supervision, confirmed a diagnosis of CMV. In the meantime, Ches-Penn discovered that Ashley's mother, Mary Siple, was also suffering from CMV.

Grace Troxel was a long time friend of Mary Siple, and, in November, 1987, she became pregnant. During her pregnancy she frequently visited Mary Siple and often assisted in feeding and bathing Ashley and in changing her diapers. In May, 1988, Mary Siple learned, allegedly for the first time, that CMV was contagious and posed a special danger to pregnant women. By this time, Grace Troxel had entered the third trimester of her pregnancy and was already infected with CMV. On August 19, 1988, she gave birth to a son, Trevor. Unfortunately, Trevor had acquired CMV from his mother in utero and died from the disease on November 17, 1988.

Grace and Daniel Troxel filed wrongful death and survival actions on behalf of their deceased son and also for the infection of Grace Troxel with CMV. They named as defendants duPont and Ches-Penn, which subsequently joined Dr. Browngoehl as an additional defendant. The essence of plaintiffs' claim was that defendants had failed to inform Mary Siple of the contagious nature of CMV and of the risk to pregnant women who might come into contact with her infant. Dr. Browngoehl filed a cross-claim against the remaining defendants pursuant to Pa.R.C.P. 2252(d).

In determining whether it is the substantive law of Pennsylvania or the substantive law of Delaware which is applicable, we apply Pennsylvania conflict of laws principles. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Supreme Court abandoned the rule of lex loci delicti, which had applied the law of the place where the tort was committed, and adopted a methodology which is a combination of the "government interest" analysis and the "significant relationship" approach of Section 145 of the Restatement (Second) of Conflicts. See: Normann v. Johns-Manville Corp., 406 Pa.Super. 103, 108, 593 A.2d 890, 893 (1991), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 436, 539 A.2d 871, 873 (1988); Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3rd Cir.1991). This more flexible rule allows the courts to conduct an "analysis of the policies and interests underlying the particular issue before the court." Griffith v. United Air Lines, Inc., supra, 416 Pa. at 21, 203 A.2d at 805. See also: Miller v. Gay, 323 Pa.Super. 466, 470, 470 A.2d 1353, 1354-1355 (1983).

In determining which state has the greater interest in the application of its law, one method is to see what contacts each state has with the accident, the contacts being relevant only if they relate to the "policies and interests underlying the particular issue before the court." Griffith, supra 416 Pa. at 21, 203 A. [2d] at 805. When doing this it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state's contacts must be measured on a qualitative rather than quantitative scale. Tooker v. Lopez, 24 N.Y.2d 569, 576, 301 N.Y.S.2d 519, 524, 249 N.E.2d 394, 398 (1969).

Cipolla v. Shaposka, 439 Pa. 563, 565, 267 A.2d 854, 856 (1970). The relevant inquiry, therefore, is not the number of contacts each litigant has had with a state. Instead, a court must evaluate "the extent to which one state rather than another has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law." Normann v. Johns-Manville Corp., supra, 406 Pa.Super. at 108, 593 A.2d at 893.

After careful review and study, we conclude that insofar as the instant claim is focused upon duPont because of services rendered to a Pennsylvania resident in Delaware by a Delaware health care provider, the State of Delaware has the greater interest in the application of its law. Although it must be conceded that Pennsylvania, in this case the forum state, has an interest in providing redress for wrongs committed against its citizens, here that interest is superseded by Delaware's interest in regulating the delivery of health care services in Delaware. DuPont is a Delaware hospital, and Dr. Borkowski, who treated Ashley, is licensed to practice medicine in Delaware, not Pennsylvania. The patient, who was a resident of Pennsylvania, was taken to Delaware for treatment and was treated by duPont exclusively in Delaware. No services were rendered by duPont in Pennsylvania. The services rendered and the persons delivering those services in Delaware were regulated by the laws of Delaware, not the laws of Pennsylvania. In treating Ashley, therefore, the hospital was required to follow and abide by the laws of Delaware. As such, duPont and Dr. Borkowski were entitled to rely on the duties and protections provided by Delaware law. Pennsylvania law did not follow Ashley and her mother when they traveled to Delaware to obtain medical care. Any other rule would be wholly unreasonable, for it would require hospitals and physicians to be aware of and be bound by the laws of all states from which patients came to them for treatment. This is not the law.

In Levin by Levin v. Desert Palace, Inc., 318 Pa.Super. 606, 465 A.2d 1019 (1983), an action based on allegedly negligent omissions by a Nevada hotel which catered to large numbers of Pennsylvania residents, the Superior Court observed that the alleged omissions had occurred in Nevada and said:

Obviously, Pennsylvania has an important interest in protecting the welfare of its citizens. We conclude, however, that this interest is outweighed by Nevada's interest in regulating the conduct and prescribing the liability of hotel owners within its jurisdiction. A hotel owner relies on the laws of the state in which the hotel is located to determine the standard of conduct required of him. It could not be expected that a hotel should comply with the laws of all the states of which its guests are citizens.

Id., 318 Pa.Super. at 610-611, 465 A.2d at 1021. See also: Kabo v. Summa Corp., 523 F.Supp. 1326 (E.D.Pa.1981).

In Blakesley v. Wolford, 789 F.2d 236 (3rd Cir.1986), a Pennsylvania resident had travelled to Texas to undergo surgery. When the patient was injured, allegedly as a result of the surgeon's negligence, the court was required to determine whether Pennsylvania's plaintiff friendly law or Texas' defendant protecting law was applicable. Holding that the defendant could properly rely on Texas law, the Court said:

It is true, as the district court states, that "Pennsylvania has an interest in protecting its citizens who are injured by out of state physicians and surgeons who come to Pennsylvania to practice their profession, and in requiring those individuals to satisfy its standards of care and consent." App. at 239-40. However, it does not follow, as the district court stated, that "Pennsylvania's interest is just as strong when its residents travel to other states for surgical procedures prescribed by out of state surgeons during their visits to Pennsylvania." App. 240.

While we may agree with the district court in the former instance, we cannot agree with the district court's later conclusion that would have Pennsylvania law travel with Pennsylvania residents when they arrange to undergo surgical procedures in sister states.

Id. at 242 n. 11.

In Shuder v. McDonald's Corp., 859 F.2d 266 (3rd Cir.1988), a Pennsylvania resident had fallen in the parking lot of a McDonald's restaurant in Virginia. A verdict for plaintiff based on Pennsylvania law was reversed by the Third Circuit, which applied Virginia law. As to plaintiff's argument that Pennsylvania's liberal laws were "more just," the Court said:

We, however, cannot regard the alleged justness of Pennsylvania law as a valid reason for applying it. The relative liberality to plaintiffs of Pennsylvania law simply demonstrates that application of Pennsylvania law would further the policies of that state. This is a consideration quite separate from the contacts...