DO NOT PUBLISH XX MAY BE PUBLISHED

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1 DO NOT PUBLISH XX MAY BE PUBLISHED Murray v ARS of Lanc., et al. No. CI /Code 96 Cullen, J. May 28, 2014 Civil Preliminary Objections Legal Sufficiency Corporate Negligence When ruling on preliminary objections, the court must generally accept as true all well and clearly pleaded facts, together with such reasonable inferences as may be drawn from those facts, but not the pleader s conclusions or averments of law. To state a cause of action for negligence, a plaintiff must allege facts which establish the breach of a legally recognized duty or obligation of the defendant that is causally connected to actual damages suffered by the plaintiff. The level of care of control exercised by a particular defendant should not be the focus in determining whether such a corporation owes a plaintiff a duty of care. The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Plaintiffs may plead more than one cause of action against a single defendant. A claim for corporate negligence is not precluded when a cause of action for wrongful death is also asserted. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION DEBRA A. MURRAY and SCOTT B. : MURRAY, SR., as Co-Administrators of : the Estate of SCOTT B. MURRAY, JR., on : Behalf of Said Decedent s Heirs-At-Law : and Next-Of-Kin, and In Their Own Right, : Plaintiffs : : vs. : No. CI : Code 96 ARS OF LANCASTER, L.P., d/b/a : ADDICTION RECOVERY SYSTEMS, : DAVID F. HOFFMAN, M.D., and MARK R. :

2 HARRIS, D.O., : Defendants : OPINION AND ORDER By CULLEN, J. Pending before the Court are the preliminary objections of Defendant, ARS of Lancaster, L.P., d/b/a Addiction Recovery Systems, to Plaintiffs third amended complaint. Defendant seeks to strike the phrase and other individuals and illegible signatures in paragraph 96(e) of the third amended complaint. Defendant also seeks dismissal of count IV. For the reasons set forth below, Defendant s preliminary objections will be sustained in part and overruled in part. Procedural and Factual Background Plaintiffs, Debra A. Murray and Scott B. Murray, Sr., initiated this action by filing a praecipe for writ of summons on March 12, A complaint with the required certificates of merit was filed on May 9, Following the filing of preliminary objections by Defendant David F. Hoffman, M.D. ( Defendant Hoffman ), Plaintiffs amended their complaint on June 8, Following the Court s ruling on preliminary objections by Defendant Hoffman and Defendant Mark R. Harris, D.O. ( Defendant Harris ) on December 11, 2012, Plaintiffs filed a second amended complaint on January 4, Defendant filed preliminary objections, and following the Court s ruling on those preliminary objections on October 8, 2013, Plaintiffs filed a third amended complaint on November 6, Counts I, II and III are causes of action for wrongful death against Defendant, Defendant Harris and Defendant Hoffman, respectively. Count IV alleges corporate negligence against Defendant. Count V is a cause of action for agency/respondeat superior against Defendant. Count VI alleges a cause of action for negligent infliction of emotional distress against all defendants, and Count VII is a survival action against all named defendants.

3 The pertinent factual background is discussed at length in the Court s opinions of December 11, 2012, and October 8, Briefly, this action arose as a result of the death of Plaintiffs son, Scott B. Murray, Jr. ( Mr. Murray ), who was being treated at Defendant, a methadone maintenance center, after being released from the hospital. (Pls. Third. Am. Compl., 11, 13, 71). When Mr. Murray was released from the hospital, he was given a five-day supply of prescription medications, and the list of medications was sent to Defendant. (Id. at 15-16). While being treated by Defendant, he was under the care of Defendants Harris and Hoffman and prescribed methadone for his withdrawal symptoms. (Id. at 12). Mr. Murray s symptoms worsened over the course of the next few days, and Defendants Harris and Hoffman ordered increases in his dosage of methadone, despite Mr. Murray s complaints about his worsening symptoms and request to have his dosage reduced. (Id. at 35-64). On the evening of March 19, 2010, Plaintiff Scott Murray found his son foaming at the mouth and unresponsive. (Id. at 65-67). Mr. Murray was taken to the hospital where he passed away. (Id. at 70-71). An autopsy revealed the cause of death was acute methadone toxicity (id. at 77), and toxicology results showed a mix of methadone and his prescription drugs in his body. (Id. at 78-82). Plaintiffs claim Defendant s negligent medical treatment of Mr. Murray caused his death and specifically cite 13 particulars including failure to follow Defendant s own policies and procedures regarding intake and observation, failing to verify medications prescribed to Mr. Murray, failing to recognize the signs of methadone toxicity and failing to keep proper records. (Id. at 96(a)-(m)). Plaintiffs allege corporate negligence against Defendant citing 34 particulars, including the failure to properly train and supervise its employees, failing to ensure Mr. Murray s safety and well-being, failing to promulgate adequate policies to verify medication prescribed by other facilities and 3

4 failing to comply with state and federal laws and regulations. (Id. at 125(a)-(hh)). Plaintiffs also allege that Defendant s negligent conduct caused them to suffer emotional distress. (Id. at ). December 23, Defendant filed preliminary objections to the third amended complaint on December 2, 2013, and Plaintiffs responded on Defendant challenges the use of the phrase other individuals and illegible signatures in the wrongful death claim against it, claiming this wording is too vague to permit it to prepare a defense. (Def. s P.O.s, 12-13). Defendant also seeks to strike Plaintiffs claim for corporate negligence (count IV) asserting that it fails to conform to law because Pennsylvania does not recognize a claim of corporate negligence against entities such as Defendant. (Id. at 29-31). All parties have filed briefs in support of their respective positions, and the issues presented are ripe for disposition. Discussion 1 The praecipe to assign Defendant s preliminary objections to the Court for disposition was not filed until March 14,

5 Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:... failure of a pleading to conform to law or rule of court... insufficient specificity in a pleading; legal insufficiency of a pleading (demurrer).... Pa. R.C.P. 1028(a)(2)-(4). 2 In response to Defendant s claim that the phrase other individuals and illegible signatures in paragraph 96(e) of Plaintiffs third amended complaint is too vague to permit it to prepare a defense, Plaintiffs agree to amend paragraph 96(e) to remove the challenged phrase and substitute the names of two employees. (Pls. Res. in Opp., 9-16). Therefore, since Plaintiffs agree to correct the deficiency raised in this preliminary objection, further discussion is unnecessary. The phrase other individuals and illegible signatures will be stricken and the parties may file a stipulation amending paragraph 96(e) to reflect that change. If the parties decline to make this amendment by stipulation, Plaintiffs may file an amended complaint to do so. Defendant also challenges the legal sufficiency of Plaintiffs claim of corporate negligence. When ruling on such preliminary objections, the court must generally accept as true all well and clearly pleaded facts, together with such reasonable inferences as may be drawn from those facts, but not the pleader s conclusions or averments of law. Santiago v. Pennsylvania Nat l Mut. Ins. Co., 418 Pa. Super. 178, , 613 A.2d 1235, (1992) (citations omitted). Preliminary objections calling for dismissal of a cause of action should be sustained only in cases that are 2 In their response to Defendant s preliminary objections, Plaintiffs claim Defendant s preliminary objections are procedurally deficient because they were filed two business days late. If Plaintiffs wished to have the preliminary objections stricken for lateness, they should have filed preliminary objections to that effect. Connor v. Crozer Keystone Health System, 832 A.2d 1112, (Pa. Super. 2003). Even had Plaintiffs filed preliminary objections challenging the lateness of Defendant s filing, they have not shown how they were prejudiced by Defendant s filing its preliminary objections two business days late due to a holiday weekend. Id. 5

6 clear and free from doubt. Alston v. PW-Philadelphia Weekly, 980 A.2d 215, 219 (Pa. Commw. 2009). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Santiago, 418 Pa. Super. at , 613 A.2d at Any doubt as to whether a demurrer should be sustained should be resolved in favor of overruling the demurrer. Id. [T]o state a cause of action for negligence, a plaintiff must allege facts which establish the breach of a legally recognized duty or obligation of the defendant that is causally connected to actual damages suffered by the plaintiff. Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 596 (Pa. 2012) (citing Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, , 886 A.2d 270, 280 (2005)). Unless a legally recognized immunity exists, a corporation may be sued for negligence. Id. at 597. Plaintiffs assert a claim of corporate negligence against Defendant based on the duties they allege are imposed upon it by Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), and Scampone. In Thompson, the Supreme Court found that the defendant hospital owed a nondelegable duty of care toward a patient of a doctor with staff privileges at the hospital. Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. 6

7 Id. at 339, 591 A.2d at 707. Under Thompson, hospitals have the duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; retain and select only competent physicians; oversee all persons who practice within it as to patient care; and to form, adopt, and enforce adequate rules and policies to ensure quality care for patients. Id. In Scampone, the plaintiff asserted causes of action for negligence, wrongful death and corporate negligence against Highland Park, a nursing home, and Grane Healthcare, which provided management services to Highland Park A.3d at 584. After the plaintiff presented its evidence at trial, Grane Healthcare and Highland Park moved for a nonsuit on all claims against Grane Healthcare and the corporate negligence claim against Highland Park. Id. at 585. The trial court granted the defendants motions except for the request to dismiss the claim of corporate negligence against Highland Park. Id. The jury returned a verdict in favor of the plaintiff. Id. at 586. On appeal, the Superior Court affirmed in part, holding that the trial court properly allowed the plaintiff to proceed on its claim of corporate negligence against Highland Park, but reversed the trial court s granting of a nonsuit against Grane Healthcare and remanded the case for a new trial. Id. The defendants appealed to the Supreme Court. Id. On appeal, the defendants argued that corporate negligence is not a viable cause of action against a nursing home or the company providing management services to the facility. Id. at 587. The defendants contended that Supreme Court precedent limited the application of corporate negligence to hospitals because hospitals are comprehensive health center[s] with responsibility for arranging and coordinating the total healthcare of its patients and that expanding the doctrine of corporate negligence beyond hospitals to all healthcare corporations would be unworkable and increase expense. Id. 3 Several other defendants were dismissed by stipulation or on motions for nonsuit. Scampone, 57 A.3d at 584 n.1. 7

8 The plaintiffs argued that corporate negligence should be applied on a case-by-case basis based on a functional analysis that inquires into whether an entity performs functions which fall within, or are similar to, the duties articulated in Thompson. Id. at 590. Applying that test, nursing homes may be held liable for corporate negligence because they involve themselves in all aspects relating to a resident s care. Id. Based upon the parties arguments, the Supreme Court sought to clarify the categorical exemption from negligence liability of nursing homes and related entities, as well as claims regarding [the defendants ] specific duties of care. Id. at 596. The Supreme Court rejected the defendants argument that nursing homes and related entities are categorically exempt from claims of corporate negligence, stating that: [c]ategorical exemptions from liability exist... only where the General Assembly has acted to create explicit policy-based immunities.... Where either no immunity exists, or the legislative branch created exceptions to an immunity legislatively conferred, the default general rule of possible liability operates.... As noted, the General assembly has not bestowed the benefit of immunity either upon nursing homes or upon similar or related entities. Id. at 599 (citations omitted). With respect to the applicable duty of care, the Supreme Court determined that the level of care or control exercised by a particular defendant should not be the focus in determining whether such a corporation owes a plaintiff a duty of care, but it focused instead on the five prong analysis set forth in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (2000). Scampone, 57 A.3d at The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 562 Pa. at 553, 756 A.2d at 1169 (citations omitted). 8

9 In this case, Defendant asserts that Plaintiffs have not satisfied the five factors set forth in Althaus so as to support their claim of corporate negligence. (Def. s P.O.s, 20). Defendant also seeks to strike count IV because it does not set forth a separate cause of action. (Id. at 30-31). Plaintiffs allege Defendant owed Mr. Murray non-delegable duties based on the Pennsylvania Supreme Court s holding in Scampone because of the provider-patient relationship between the two parties, the regulations to which Defendant is subject, the foreseeable risk of harm caused by the improper administration of methadone, the consequences to the public of failing to impose such a duty and the public interest served in requiring facilities such as Defendant follow proper treatment protocols. (Pls. Third Am. Compl., 88(a)-(e)). Plaintiffs further allege that Defendant was negligent in failing to train and supervise its staff in the care of people who have adverse reactions to methadone, failing to record necessary information in violation of state law, failing to adopt and enforce policies to ensure patient safety, failing to oversee medical staff and failing to retain competent physicians. (Id. at 125(a)-(hh)). Accepting these facts as true, as it must for the purposes of ruling on preliminary objections in the nature of a demurrer, Plaintiffs have pled sufficient facts to support a prima facie case of corporate negligence as outlined in Thompson and Scampone. 4 4 Plaintiffs are reminded that the Court will consider the facts contained in their response, not their conclusions and averments of law. Santiago v. Pennsylvania Nat l Mut. Ins. Co., 418 Pa. Super. 178, , 613 A.2d 1235, (1992) (citations omitted). so in their brief in opposition to Defendant s preliminary objections. If Plaintiffs wish to make legal arguments, they may do 9

10 In Scampone, the Pennsylvania Supreme Court recognized corporate negligence as a separate theory of negligence. 57 A.3d at Plaintiffs may plead more than one cause of action against a single defendant. Pa. R.C.P. 1020(a). A claim for corporate negligence is not precluded when a cause of action for wrongful death is also asserted. See Scampone, 57 A.3d at 584, Rettger v. UPMC Shadyside, 991 A.2d 915, 922 (Pa. Super. 2010), Hyrcza v. West Penn Allegheny Health System, Inc., 978 A.2d 961 (Pa. Super. 2009) (permitting plaintiffs to pursue corporate negligence claims in wrongful death actions). 5 Accordingly, this preliminary objection will be overruled. For the reasons set forth above, the Court enters the following: 5 This conclusion does not preclude Defendant from filing a well supported motion for summary judgment at the appropriate time. 10

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12 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION DEBRA A. MURRAY and SCOTT B. : MURRAY, SR., as Co-Administrators of : the Estate of SCOTT B. MURRAY, JR., on : Behalf of Said Decedent s Heirs-At-Law : and Next-Of-Kin, and In Their Own Right, : Plaintiffs : : vs. : No. CI : Code 96 ARS OF LANCASTER, L.P., d/b/a : ADDICTION RECOVERY SYSTEMS, : DAVID F. HOFFMAN, M.D., MARK R. : HARRIS, D.O., : Defendants : O R D E R AND NOW, this 28 th day of May, 2014, upon consideration of the preliminary objections filed by Defendant, ARS of Lancaster, L.P., d/b/a Addiction Recovery Systems, and the response of Plaintiffs, it is ordered that Defendant s preliminary objection to the phrase and other individuals and illegible signatures is sustained. Defendant s remaining preliminary objections are overruled. The parties may amend the pleading by stipulation within twenty (20) days of the date of this order, or Plaintiffs may file an amended complaint to do so. Defendant is granted twenty (20) days from the filing of the stipulation or an amended complaint to file an answer. BY THE COURT: JAMES P. CULLEN, JUDGE

13 Attest: Copies to: Robert J. Mongeluzzi, Esquire Lauralee Baker, Esquire George M. Nace, III, Esquire Francis J. Deasey, Esquire