Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Division
| Decision Date | 28 June 1976 |
| Parties | Lawrence J. WILLINGER, Jr., Administrator of the Estate of Leonard Willinger, Deceased, Plaintiff-Appellee, v. MERCY CATHOLIC MEDICAL CENTER OF SOUTHEASTERN PENNSYLVANIA, FITZGERALD MERCY DIVISION, Defendant-Appellant, and Dr. Martin T. Brennan and Dr. Josephine L. Go, Additional Defendants- Appellees. |
| Court | Pennsylvania Superior Court |
[Copyrighted Material Omitted]
F. Kirk Adams, Springfield, for defendant-appellant.
Jeffrey M. Stopford, Philadelphia, for plaintiff-appellee.
John S. J. Brooks, Media, for additional defendants-appellees.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, PRICE, VAN der VOORT and SPAETH, JJ.
On June 26 1974, a Delaware County jury awarded appellee-Lawrence J Willinger, Jr., ('plaintiff', herein), a verdict of $455,199.75, in a wrongful death and survival action for the death of Leonard Willinger, against appellant, Mercy Catholic Medical Center ('defendant', herein). Appellant contends that the court erred in refusing to allow an amendment to its third party complaint against appellees Dr. Brennan and Dr. Go ('additional defendants', herein) during trial and that the court erred in its jury charge.
There is no dispute about the tragic facts which led to this lawsuit. On June 2, 1969, plaintiff's five-year-old son, Leonard, entered defendant-hospital for a tonsillectomy. The boy was examined on the day of the operation and, medical records indicate, was in excellent health. In preparation for the operation which was to be performed by additional defendant-Brennan, the child was placed under anesthesia by a nurse-anesthetist under the supervision of additional defendant-Go, an anesthesiologist. Apparently, additional defendant-Go was then called to an emergency operating room to treat another patient. Thereafter, as all parties agree, [1] the nurse-anesthetist negligently monitored administration of the anesthesia. When additional defendant-Brennan arrived in the operating room, he noticed that the child had the 'color of a cadaver' and that his heart had stopped beating. The nurse-anesthetist was still administering a full dose of anesthesia and, although she was stationed near the child, she was not using her stethescope to monitor his heartbeat.
At that point, additional defendant-Brennan performed emergency resuscitative procedures. The child's heart quickly returned to a normal rate; as a result of the prolonged heart stoppage, [2] however, the child suffered from serious brain damage. On July 23, 1969, never having recovered from this tragedy, the child died.
On November 6, 1969, plaintiff filed a complaint in trespass solely against defendant. On January 14, 1970, defendant filed a praecipe for a writ to join Dr. Brennan and Dr. Go as additional defendants. Defendant filed its answer to the complaint on March 16, 1970. During the next fifteen months, the parties conducted extensive discovery. In September, 1972, defendant filed its complaint against the additional defendants. After further discovery, the matter was finally tried in June, 1974. On June 26, 1974, the jury awarded plaintiff damages in the amount of $455,199.75. This appeal followed the denial of defendant's post-trial motions.
As the facts indicate, negligence of the nurse-anesthetist could not be seriously contested. Thus, the critical issue at trial was the agency of the nurse-anesthetist. The first issue raised by defendant is whether the defendant admitted agency of the anesthetist in its pleading.
Plaintiff made the following allegations in his complaint:
'3. On or about June 2, 1969, defendant through its agents, servants and employees, acting within the course and scope of their employment, did so carelessly and negligently treat said Leonard Willinger . . . that he developed a serious and permanent injury resulting in his death.
The defendant answered as follows:
'3. The allegations in paragraph #3 of the Plaintiff's Complaint. . . is denied and on the contrary, it is averred that no agents, servants or employees of the Defendant acted carelessly and negligently in treating the said minor.
Under Pennsylvania procedure, a defendant in a trespass action can avoid a default judgment merely by filing an entry of appearance. Failure to file a responsive pleading does not admit liability for negligence; it does, however, 'admit all averments relating to the identity of the person by whom a material act was committed, The agency or employment of such person or the ownership, possession or control of the property or instrumentality involved.' Pa.R.C.P. 1045(a). (Emphasis added). It is apparent that if a defendant in a trespass action wishes to deny agency, he must file an answer. Once an answer is filed, however, it must conform to the procedural rules relating to actions in assumpsit, because there are no specific rules governing answers in trespass actions. Pa.R.C.P. 1041. In particular, Rule 1029 requires that a denial to an allegation in the complaint must be specific if it an averment which requires a response. Rule 1029(b) provides that '(a) general denial . . . shall have the effect of an admission.' Implicit in Rules 1045(a) and 1029(b) is that if a party intends to deny agency of another person in a trespass action, it must make a specific denial. Thus, we must decide whether paragraphs 3 and 4 of defendant's answer, supra, amounted to a specific denial.
On its face, defendant's denial is ambiguous. '(I)t is averred that no agents, servants or employees of the Defendant acted carelessly and negligently in treating the said minor,' permits two readings: one, that although all the people performing the operation were defendant's employees, none of them were negligent; or, two, that whether or not someone was negligent, the people performing the operation were not defendant's employees. In Boles v. Federal Electric Co., 89 Pa.Super. 160 (1926), involving an identical situation, this Court held that an ambiguous denial did not comport with the rule requiring a specific denial and, thus, constituted an admission of agency. [3] We stated in Boles, supra at 163: '(t)he denial that any employe of the defendant directly or indirectly caused the injury might mean, either that the actor was not an employe of the defendant, or that, being the employe, he did not cause the injury.
'The agency, for the defendant, of the persons by whom the act was committed, that is, their employment by it was, in our opinion, properly taken by the trial judge as an admitted fact. Of course, this carried with it no proof that these agents committed the act complained of, or that they were negligent, and the trial Judge so limited the admission, saying only that, 'The defendant, . . . has admitted that it was its men who were doing this work. " Thus, the court below was correct in holding that defendant had admitted agency. The defendant was, therefore, properly found liable to the plaintiff once it was established that the nurse-anesthetist was found negligent.
Defendant also contends that it was error for the lower court to deny defendant's motion to amend its third party complaint at trial.
Defendant attempted to begin its defense during the trial by calling additional defendant-Go as on cross-examination. Upon request for an offer of proof, defendant explained that it intended to prove that the nurse-anesthetist was additional defendant's employee so that the additional defendant would be liable for the nurse-anesthetist's negligence. The additional defendant objected because defendant's third party complaint failed to allege vicarious liability on the part of the additional defendant, but alleged only personal liability. The court sustained additional defendant's objection. As discussed above, the court also ruled that the defendant's pleadings admitted agency.
At that point, defendant moved to amend its complaint against the additional defendant to allege specifically that the nurse-anesthetist was an agent of additional defendant-Go. The court refused to allow the amendment on the ground that to do so would be to permit addition of a new cause of action after the expiration of the statute of limitations.
Obviously, the nurse could have been the agent of both defendant and additional defendant, Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974), and thus, the additional defendant and defendant could have been jointly and severally liable to plaintiffs. But rules of evidence require that proof at trial must be in conformity with the pleadings. See, e.g., Higgins Lumber Company v. Marucca, 159 Pa.Super. 405, 48 A.2d 48 (1946). Defendant's third party complaint clearly did not allege vicarious liability based on an agency relationship:
'(a) Administered an overdose of pre-operative medication, including Vestiril, Demorol and Atropene.
'(b) Specifically with respect to the administration of the induction agent, probably anectine, either failed to administer such induction agent or administered such induction agent in an untimely manner.
'(c) Failed to properly and adequately personally supervise and/or conduct administration of pre-operative medication induction agent in general anesthesia.
'(d) Failed...
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Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Division
...362 A.2d 280 241 Pa.Super. 456 Lawrence J. WILLINGER, Jr., Administrator of the Estate of Leonard Willinger, Deceased, Plaintiff-Appellee, v. MERCY CATHOLIC MEDICAL CENTER OF SOUTHEASTERN PENNSYLVANIA, FITZGERALD MERCY DIVISION, Defendant-Appellant, and Dr. Martin T. Brennan and Dr. Josephi......