IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMARIS RAMOS and PEDRO ARCE, :
as Co-Administrators of the Estate of :
PEDRO ARCE, JR., and in their own right, :
:
Plaintiffs :
: CIVIL ACTION - LAW
vs. : JURY TRIAL DEMANDED
:
THE UNITED STATES OF AMERICA, :
MOSES TAYLOR HOSPITAL; : (MARIANI, J.)
SCRANTON QUINCY HOSPITAL :
COMPANY, LLC; MICHAEL RYAN, :
D.O.; GEISINGER COMMUNITY :
MEDICAL CENTER; GEISINGER : CONSOLIDATED TO:
MEDICAL CENTER; GEISINGER : NO. 3:15-00749
CLINIC; ANTHONY SAUTER, M.D., :
:
Defendants :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
AMARIS RAMOS and PEDRO ARCE, :
as Co-Administrators of the Estate of :
PEDRO ARCE, JR., and in their own right, :
:
Plaintiffs :
: CIVIL ACTION - LAW
vs. : JURY TRIAL DEMANDED
:
THE UNITED STATES OF AMERICA, :
et al. : NO. 3:16-00924
:
Defendants :
MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANT,
ANTHONY SAUTER, M.D., TO DISMISS PLAINTIFF’S CLAIM FOR
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS PURSUANT TO
RULE 12(B)(6)
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 1 of 14
Defendant, Anthony Sauter, M.D., by and through his undersigned counsel,
hereby files this Memorandum of Law in Support of his Motion to Dismiss
Plaintiff’s Claim for Negligent Infliction of Emotional Distress contained in Count
III of Plaintiffs’ Complaint docketed at 16-CV-000924.
I. PROCEDURAL HISTORY
Plaintiffs, Amaris Ramos (“Plaintiff-mother”) and Pedro Arce (“Plaintiff-
father”) commenced this medical malpractice action with the filing of a Complaint
on November 24, 2014 in the Lackawanna County Court of Common Pleas.
Counsel for Moving Defendant, Dr. Sauter, accepted service on behalf of Dr.
Sauter. Acceptance of service was filed on December 19, 2014. On December 23,
2014, Moving Defendant filed a preliminary objection to Plaintiffs’ Complaint in
the form of a demurrer to strike Plaintiffs’ two claims for negligent inflection of
emotional distress (“NIED”), which were set forth on behalf of Plaintiff-Mother
and Plaintiff-Father
On or about December 23, 2014, Plaintiffs filed a First Amended Complaint.
On January 15, 2015, Moving Defendant once again filed a preliminary objection
to Plaintiffs’ Complaint in the form of a demurrer to strike Plaintiffs’ two claims
for NIED.
On January 26, 2015, Plaintiffs served a Second Amended Complaint, which
alleged only one NIED claim against Moving Defendant by Plaintiff-Mother.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 2 of 14
Plaintiffs removed the NIED of Plaintiff-Father against the Moving Defendant.
Therefore, Moving Defendant filed a preliminary objection in the form of a
demurrer to strike Plaintiff-mother’s NIED claim.
On April 16, 2015, a Notice of Removal was filed by the United States of
America, removing Lackawanna County Court of Common Pleas no. 14-6590 to
the Middle District of Pennsylvania, which was assigned docket number 15-CV-
749.
On May 19, 2016, Plaintiffs filed a Complaint to docket no. 16-CV-924. An
Order consolidating actions 15-CV-749 and 16-CV-924. Plaintiffs’ Complaint
contains a cause of action in Count III for Negligent Infliction of Emotional
Distress on behalf of Plaintiff-Mother. Count IV of Plaintiffs’ Complaint contains
a cause of action for Negligent Infliction of Emotional Distress on behalf of
Plaintiff-Father, but it is not brought against Moving Defendant. Therefore,
Moving Defendant, Dr. Sauter, brings the instant Motion to dismiss Plaintiffs’
claim for Negligent Infliction of Emotional Distress on behalf of Plaintiff-Mother
set forth in Count III of Plaintiffs’ Complaint docketed at 16-CV-924.
II. STATEMENT OF FACTS
Plaintiffs’ Complaint alleges negligence on the part of the Moving
Defendant for failure to diagnose atypical pneumonia and prescribe an antibiotic
that would provide the appropriate coverage.
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According to Plaintiffs’ Complaint, decedent-child and Plaintiff-Mother
presented to the emergency department of Defendant, Moses Taylor Hospital, on
January 29, 2013 with complaints of a five-day history of fever, cough, sore throat
and congestion. See Plaintiffs’ Complaint, Exhibit A, at ¶ 28. The Complaint
further alleges that the Decedent-child was evaluated in the ED by PA Bell and/or
Dr. Sauter, received a chest x-ray, and was discharged to home with a diagnosis of
acute RUL pneumonia and a prescription for the antibiotic Cefdinir and an inhaler.
Id. at ¶¶ 31-33.
According the Third Cause of Action of Plaintiffs’ Complaint, Plaintiff-
mother:
“at various relevant times from January 29, 2013 to February 10, 2013, as
described in the preceding paragraphs, was present to contemporaneously
witness (1) the negligent and careless treatment rendered by Defendants, (2)
the resulting injuries to her minor son, Pedro Arce, Jr. and (3) her son’s
death.”
Id. at ¶ 168.
Moving Defendant moves to dismiss Plaintiff-mother’s claim for NIED as
set forth in the Third Cause of Action of Plaintiffs’ Complaint docketed at 16-CV-
924.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 4 of 14
III. QUESTION PRESENTED
Whether Plaintiff-Mother’s Third Cause of Acton for NIED
should be dismissed because the facts pled, even if proven to be
true, are insufficient as a matter of law and fail to state a legally
cognizable NIED claim?
Suggested answer: Yes.
IV. LEGAL ANALYSIS
A. Plaintiff’s NIED Claims Against Moving Defendant Should
Be Stricken with Prejudice.
1. Theories of Liability Under a NIED Claim:
There are only three theories of liability recognized by the Pennsylvania
Supreme Court for NIED: (1) the direct impact rule; (2) the zone of danger
exception; and (3) the bystander exception. See Simmons v. PACOR, Inc., 543 Pa.
664, 677 (1996). Pennsylvania does not provide a remedy for “all emotional
trauma causally connected to the defendant’s tortious conduct.” Brooks v. Decker,
512 Pa. 365, 369 (1986). Such an expansion of the tort “would reek upon our
society a problem of unlimited or unduly burdensome liability.” Id. Thus, the
Court has made it clear that the common law denies a remedy for the bereavement
and grief caused by the mere fact of an injury to another. Id. at 370.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 5 of 14
2. Bystander Liability Fails Without Contemporaneous
Observation of Trauma.1
Bystander liability is a derivative of negligently-inflicted physical injury to a
close relative. See Sinn v. Burd, 486 Pa. 146, 170 (1979). It is “recovery for
injuries sustained as a result of witnessing a ‘battery’ upon another.” Id. at 164.
There can be no recovery for bystander liability absent proof that: (1) the plaintiff
was located near the scene of the accident, as contrasted with one who is a distance
away from it; (2) the shock resulted from a direct emotional impact upon the
plaintiff from the sensory and contemporaneous observance of the accident, as
opposed to learning of the accident from others after its occurrence; and (3) the
plaintiff and victim are closely related. Id. at 170.
“[T]he critical element for establishing [bystander] liability is the
contemporaneous observance of the injury to the close relative.” Mazzagatti v.
Everingham, 512 Pa. 266, 280 (1986). The contemporaneous observance
requirement is predicated upon the factual assumption that “the close relative’s
prior knowledge of the injury to the victim serves as a buffer against the full
impact of observing the accident scene. By contrast, the relative who
contemporaneously observes the tortious conduct has no time span in which to
brace his or her emotional system.” Id. at 279-80. The Superior Court has
questioned whether there is a sufficient “buffer” inherent in hearing from a third
1 The direct impact and zone of danger theories of liability are inapplicable under the present facts.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 6 of 14
party that a traumatic injury has been inflicted on a loved one to justify the denial
of recovery, but has concluded that the question has been answered in the
affirmative by the Supreme Court and, therefore, is not open to debate. Bloom v.
Dubois Regional Med. Ctr., 409 Pa. Super. 83, 103 (1991).
The “contemporaneous observance” requirement consists of the following
elements: (1) observation of the defendant’s negligent conduct; (2) observation of
the injury; and (3) contemporaneous awareness that the defendant’s conduct is
causing injury. Absent a knowing understanding that the defendant’s conduct is
causing injury, there is no causal connection between the plaintiff’s emotional
distress and the defendant’s conduct. This is the limited nature of the tort: No
claim lies if the defendant’s negligence is not observable, the effect of the
defendant’s conduct is not immediately perceptible, or there is no
contemporaneous awareness of the causal connection between the defendant’s
conduct and the resulting injury. The emotional distress must flow directly from
an immediate understanding perception that the defendant’s conduct is causing
traumatic physical injury to a close relative.
In Tiburzio-Kelly v. Montgomery, 681 A.2d 757 (Pa. Super. 1996), the
Court denied recovery to a husband who suffered emotional distress because his
wife was forced to undergo an emergency C-section with no general or epidural
anesthesia. The obstetrician began the operation using only local anesthesia
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 7 of 14
because no anesthesiologist had arrived by the time that the patient was prepared
for surgery. The wife was fully conscious during the surgery. The husband heard
his wife screaming during the delivery from a nearby room, but admitted that he
had no idea that his baby was being delivered by a C-section or that there was no
anesthesiologist. Id. at 772-73. Relying on Bloom, the Court denied recovery
because, although the husband heard his wife’s screams, he had no awareness of its
cause (the C-section without anesthesia) until he saw her afterwards in the
recovery room. The Court, thus, confirmed that the gravamen of the observance
requirement is that “the plaintiff must have observed the defendant traumatically
inflicting the harm on the plaintiff’s relative, with no buffer of time or space to
soften the blow.” Id. at 773 (citations omitted).
3. Plaintiffs Must Allege to Have Observed a Discrete and
Identifiable Event.
A plaintiff must identify a “discrete and identifiable traumatic event” to
trigger recovery under NIED. See Sinn v. Burd, 486 Pa. 146; See also, Tackett v.
Encke, A.2d 1310 (Pa. Super. 1986). In Pennsylvania, it is clear that a discrete and
identifiable traumatic event equivalent to the automobile accident that took the
victim’s life in Sinn must be observed to trigger recovery. See Tacket, supra. at
1312 (disallowing recovery to mother who witnessed over time her son’s reaction
to a negligently-undetected pulmonary fat embolism); Halliday v. Beltz, 514 A.2d
906, 908 (Pa. Super. 1986) (dismissing claim by husband and daughter who
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 8 of 14
witnessed death of wife/mother due to complications from surgery); Cathcart v.
Keene Indust. Insulation, 471 A.2d 493, 507 (Pa. Super. 1984) (denying recovery
to wife who witnessed husband’s slow progression of disease). Without observing
a traumatic event, there can be no NIED recovery.
To experience trauma, the plaintiff must experience a specific event or
accident, which is sudden or violent. See Amader v. Johns-Manville Corp., 514 F.
Supp. 1031, 1033 (E.D. Pa. 1981), citing Sinn, 486 Pa. at 167; See also, McShane
v. Shashikumar, 46 Pa. D. & C.3d at *5 (Montgomery Cty. 1998) (“failure to
diagnose and treat does not constitute a discrete and identifiable traumatic event
since this involves the invisible thought processes of the attending health care
providers.”)
In Mellot v. Slezak, 25 Pa. D. & C. 4th 18 (1995), the Westmoreland County
trial court granted defendants’ preliminary objections to plaintiffs’ claim for
negligent infliction of emotional distress. The court stated that the plaintiffs failed
to allege contemporaneous observation of a negligent omission because they only
alleged that they observed the effects of the defendants’ alleged negligent acts and
or omissions. See also Gordon v. Bakare, (not reported), 38 Pa. D. & C.4th 388
(1998); McShane, 46 Pa. D. & C.3d (1998).
Also, in Blair v. Mehta, 67 Pa. D. & C.4th 246 (2004), the court granted in
part preliminary objections filed on behalf of one of the plaintiffs who failed to
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 9 of 14
plead that he was “aware that there was something wrong with the treatment
rendered.” Further, the complaint did not allege that the plaintiff expressed
concern to indicate that he was aware that there was something wrong with the
medical care. Id. Although the other plaintiffs’ claims for NIED were not
dismissed, the court found that the other plaintiffs had pleaded that they were not
only present and observed the allegedly negligent care and treatment, but also
pleaded that they knew that the defendants were providing negligent care. Id. It
was not enough for the plaintiff to allege presence at the time the alleged
negligence was occurring. Therefore, contemporaneous awareness of negligent
conduct must be pleaded in a complaint to survive a demurrer on a claim for
NIED.
Pennsylvania law is clear: the claimant must contemporaneously observe the
negligent act, not its aftermath. The plaintiff must establish that they observed a
“discrete and identifiable event,” which they understood to be negligent.
4. Plaintiff-Mother’s Alleged Emotional Injuries Are Not
Recoverable Under NIED.
In the Third Cause of Action of Plaintiffs’ Complaint, Plaintiff-mother raises
a negligent infliction of emotional distress (“NIED”) claim against all Defendants,
including the Moving Defendant. Although Plaintiff-mother claims to have
“suffered and will continue to suffer physical manifestations of severe emotional
distress, including but not limited to anxiety, depression, insomnia, nightmares,
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 10 of 14
anger and a sense of loss,” Defendant’s alleged negligent conduct cannot be held
as the legal cause of any of her alleged emotionally-induced infirmities under a
NIED claim.
In paragraph 168 of Plaintiffs’ Complaint, Plaintiffs allege as follows:
“at various relevant times from January 29, 2013 to February 10, 2013, as
described in the preceding paragraphs, [Plaintiff-Mother] was present to
contemporaneously witness (1) the negligent and careless treatment rendered
by Defendants, (2) the resulting injuries to her minor son, Pedro Arce, Jr.
and (3) her son’s death.”
Id. at ¶ 168.
In support of the NIED claim, Plaintiffs allege that Plaintiff-Mother
contemporaneously witnessed her son’s negligent medical treatment, but fail to
allege that Plaintiff-mother has observed the requisite “discrete and identifiable
event” on January 29, 2013 to set forth a cognizable NIED claim against Moving
Defendant. Further, the allegations of negligence against the Moving Defendant
encompass “failures to act” with the exception of the allegation of “prescribing
Cefdinir on January 29, 2013” and do not rise to the level of the requisite “discrete
and identifiable traumatic event.”
Additionally, because these allegations are “failures to act,” Plaintiff-
Mother was not in the position to have observed the Moving Defendant inflict a
traumatic injury upon her child. Accordingly, Plaintiff-mother’s allegations as
contained in her NIED claim were not and could not have been caused by her
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 11 of 14
observance of the Moving Defendant inflicting a traumatic injury upon her child
simply because no such observation could have occurred.
For example, Plaintiffs’ allegations of negligence against Moving Defendant
are based on his alleged failure to diagnose and treat Decedent for bilateral
pneumonia as opposed to unilateral pneumonia. Specifically, Plaintiffs allege that
the Moving Defendant interpreted the January 29, 2009 chest x-ray as unilateral
pneumonia and prescribed Cefdinir while mere minutes before the Decedent’s
discharge, the reading radiologist dictated a report with an impression of bilateral
pneumonia, which indicates a different class of antibiotics. However, Plaintiff-
mother fails to allege that she was aware of any issue concerning the interpretation
of her son’s chest x-ray on January 29, 2009. Rather, Plaintiffs plead that the
radiology report that contradicted the Moving Defendant’s interpretation of
unilateral pneumonia was dictated mere minutes before the Decedent’s discharge.
With respect to the prescription of Cefdinir for unilateral pneumonia by the
Moving Defendant as opposed to an antibiotic appropriate for atypical, bilateral
pneumonia, Plaintiff-Mother fails to allege an awareness that Moving Defendant
was negligent in his prescription of this drug or even a concern with respect to the
use of this drug to treat her son’s pneumonia. Indeed, Plaintiffs fail to demonstrate
that Plaintiff-Mother expressed concern on January 29, 2009 that there was
something wrong with any aspect of the care provided by Moving Defendant.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 12 of 14
Moreover, Plaintiffs have failed to allege an injury observed on January 29, 2009
in connection with the care and treatment provided by Moving Defendant.
Thus, Plaintiffs’ allegation that Plaintiff-Mother contemporaneously
observed negligent treatment is nothing more than boilerplate language because
Plaintiffs have failed to demonstrate that on January 29, 2013, Plaintiff-mother (1)
observed a discrete and traumatic event with respect to the care provided by
Moving Defendant; (2) understood at the time that the care at issue was negligent
and/or expressed concern that there was something wrong with the care and
treatment; and (3) observed an injury to her son as a result of the negligent
treatment.
Accordingly, Plaintiff-mother cannot and has not set forth a legally
cognizable NIED claim and thus, Plaintiff-mother’s NIED claim cannot withstand
a motion to dismiss.
V. RELIEF
Moving Defendant, Anthony Sauter, M.D., respectfully requests this Court
enter the attached Order granting Defendant’s Motion to Dismiss Plaintiff’s Claim
for Negligent Infliction of Emotional Distress, contained in the Third Cause of
Action in Plaintiffs’ Complaint, pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted.
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 13 of 14
Respectfully submitted:
By: /s/ PAUL J. WYLAM, ESQUIRE
Paul J. Wylam, Esquire
Attorney I.D. No. PA81667
PJW@theperrylawfirm.com
305 Linden Street
Scranton, PA 18503
(570)344-6323
FAX (570) 344-6326
Case 3:15-cv-00749-RDM Document 77 Filed 12/12/16 Page 14 of 14
