For those of us who practice in the world of medical negligence, it is almost routine to receive Preliminary Objections from the defense moving to strike all allegations that contain references to unidentified agents, servants, employees, attending physicians, nursing staff, and other support staff. Despite what seems to be clarity in the law, the preliminary objections are filed time and time again.
Just several months ago the Superior Court of Pennsylvania once again clearly stated that such preliminary objections are not proper and should be overruled. This additional clarification came through the matter of the Estate of Arthur Denmark, by and through his Administrator Anthony W. Hurst, Sr. v. Mercy Health System and Mercy Philadelphia Hospital, et al., 2015 PA Super. 101, Filed April 28, 2015. In that matter, there were several issues raised on preliminary objections and the Court sustained preliminary objections on punitive damages and all references to unidentified agents, servants, employees, etc.
There was an appeal on a rather convoluted procedural history since the case had been marked, in part, nolle pros as opposed to non pros, and non pros was inapplicable because there was no failure to file a complaint, failure to file a certificate of merit, failure to be ready at the start of trial, or any discovery sanction. The Superior Court looked at this procedurally as if the case had been dismissed by way of summary judgment.
With regard to the Trial Court sustaining preliminary objections for unidentified agents, servants, employees, attending physicians, nursing staff, other support staff, administrators, boards, and committees, it was contended that the Trial Court erred in striking such allegations of vicarious liability. The Amended Complaint filed in the matter asserted a claim for vicarious liability against the Mercy entities for the negligence of “nursing staff, attending physicians and other attending personnel” acting within the scope of their employment “as agents, servants and/or employees” of the Mercy entities.
Once again, the Superior Court indicated that the standard of review of an Order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. As is clear from numerous decisions, preliminary objections in the nature of a demurrer test the legal sufficiency of a pleading and when considering such preliminary objections, all material facts set forth in the pleadings are admitted as true as well as all inferences reasonably deducible therefrom.
In 2014, the Superior Court in Sokolsky v. Eidelman, 93 a.3d 858 (Pa. Super. 2014) set out and reviewed the basic requirements for a cause of action for vicarious liability. Citing the Supreme Court decision of Scampone v. Highland Park Care Center, LLC, 618 Pa. 363 (2012), it was reiterated that to prove negligence a plaintiff may proceed against the defendant on theories of direct and vicarious liability. Vicarious liability according to the Supreme Court is a policy-based allocation of risk. Additionally, vicarious liability is often referred to as “imputed negligence” and means, in its simplest form, that because there is a relation which exists between party A and party B, the negligence of A is to be charged against party B even though B has played no part in it, has done nothing whatsoever to aid or encourage it, or indeed has done all that [it] possibly can to prevent it.
Once the requisite relationship (i.e. employment, agency) is demonstrated, the innocent victim has recourse against the principal, even if the ultimately responsible agent is unavailable or lacks the availability to pay.” [See Scampone.]
The Superior Court, following what it had accomplished by way of Sokolsky, concluded that it was not necessary for a plaintiff to establish a right to recover on a claim for vicarious liability based upon the negligence of a specifically named employee. In Sokolsky, the Court expressed:
Upon review, we conclude that the trial court erred as a matter of law when it ruled Sokolsky could not establish a right to recovery on her vicarious liability claim solely because she did not base that claim on an individual staff member’s actions….Simply because employees are unnamed within a complaint or referred to as a unit, i.e. the staff, does not preclude one’s claim against their employer under vicarious liability if the employees acted negligently during the course and within the scope of their employment.
In the Estate of Arthur Denmark, the Superior Court concluded that the Amended Complaint set forth material allegations of negligence upon which the claims for vicarious liability against the Mercy entities were based, including Denmark’s fall causing a dislocation of a catheter, the surgery during which his bladder was severely lacerated, the gauze left in the wound after the stitches had been applied, all allegedly resulting in his septic shock and death. While there was no specific identity of the nurses or doctors allegedly responsible (except for two of the doctors named in the case) the names of those who performed services in connection with the decedent’s care were either known to the Mercy entities or could have been ascertained during discovery.
Accordingly, if one reads a Complaint within the context of the allegations, references to “nursing staff, attending physicians and other attending personnel” and “agents, servants and employees” are not lacking in sufficient specificity and do not fail to plead a cause of action against defendants for vicarious liability. Hence, it was determined that sustaining of the preliminary objections in Denmark was in error.
There is nothing improper about pleading unidentified agents, servants and employees. Without the benefit of having pre-Complaint discovery to be able to identify every individual in the various categories of healthcare providers who may have contact with a patient, such preliminary objections are nonsensical. These preliminary objections should be met with response and confidence that pleading vicarious liability with this methodology is fully appropriate and will be permitted consistently by our Courts.