Amended Complaint • New Cause of Action • Immunity • Medical Professional Waiver

White v. Pocono Psychiatric Ass’n, PICS Case No. 14-0400 (C.P. Monroe Feb. 26, 2014) Zulick, J. (16 pages).

Amended complaint in medical malpractice action that changed the employment relationship between doctors from employee to co-employee did not assert new cause of action; however, amended complaint asserted new cause of action when it alleged actual medical malpractice directly against doctor alleged in the original complaint only to have negligently hired and supervised treating physician. Preliminary objections granted in part and denied in part.

Plaintiff, as administrator of the estate of her daughter (Steele), filed a malpractice action against doctors Kessler and Morrow and the state board of medicine. Plaintiff alleged that doctors committed medical malpractice in their treatment of Steele, that Morrow was negligent when hiring and supervising Kessler and that board was negligent in granting Kessler a license to practice medicine in Pennsylvania. All defendants filed preliminary objections.

Kessler objected to the complaint’s sufficiency. Both Kessler and Morrow contended that plaintiff’s amended complaint presented new causes of action after the applicable statute of limitations had passed. Board claimed that it was immune from suit.

Kessler’s first objection was in the nature of a demurrer. He argued that plaintiff could not prove evidence of a breach of duty of care, and that the allegations in the complaint are mere speculation. However, the relevant inquiry when examining preliminary objections is not whether plaintiff will be able to prove her allegations. Rather, the court must assume the material facts set forth in the complaint are true, along with reasonable inferences that can be drawn from those facts. Examining the complaint, plaintiff alleged that: Kessler treated Steele; that he prescribed without basis addictive, dangerous and conflicting medication in excessive amounts; that he failed to warn Steele of side effects and to obtain Steele’s medical history; and that Steele died as a result of Kessler’s negligence. These allegations, taken as true, supported a finding of medical malpractice. Prescribing medications in excessive amounts that are toxic when taken together violates the standard of care. Plaintiff additionally alleged that the negligent conduct of Kessler was the proximate cause of Steele’s death. The demurrer was denied.

Both Kessler and Morrow objected to alleged new causes of action included in the amended complaint after the relevant statute of limitations expired. Kessler objected that the amended complaint changed the employment relationship between himself and Morrow, thereby creating a new cause of action. In the original complaint Kessler was alleged to be the employee of Morrow. In the amended complaint, he was referred to instead as a co-employee. The change in the employment relationship did not create a new cause of action against Kessler, who was still being sued for medical malpractice. Kessler’s objection was denied.

However, the amended complaint did state a new cause of action against Morrow. The original complaint accused Morrow only of negligently hiring and failing to adequately supervise Kessler, against whom direct liability was alleged. The amended complaint added a claim for direct liability against Morrow. It also alleged that Morrow was vicariously liable, although no claim for vicarious liability is mentioned in the original complaint. Actual medical malpractice is not the same theory as supervisory liability. The counts of the amended complaint stating a new cause of action were stricken as to Morrow.

State board of medicine, a commonwealth entity, claimed that it was immune from liability. Plaintiff claimed that board fit within the medical-professional liability exception, which makes an entity liable for acts of health care employees of commonwealth agency medical facilities or institutions or by a commonwealth party who is a doctor, dentist, nurse or related health care personnel. 42 Pa.C.S. §8522(b)(2). However, board was not a “medical facility or institution.” While some members were doctors, nurses, or related health care personnel, several members of the board were not. Further, the medical professional waiver was expressly limited to acts of health care employees.

Board’s action in licensing Kessler was an act of board as an institution, and did not constitute the actual administration of health care to a patient in a commonwealth medical facility or by a commonwealth medical caregiver. Board’s actions did not expose it to liability under the exception to sovereign immunity. Board was stricken from the complaint.