July 11th, 2022 by Rieders Travis in Medical Malpractice

Cuneo v. UPMC, Pa. Civil No. 21-0717 (C.P. Lycoming March 3, 2022) (Linhardt, J.)  This case involved sexual misconduct by a UPMC employee who was subsequently fired for his treatment of a patient.  Plaintiff’s certificate of merit filed against corporate defendants is insufficient to support a corporate negligence claim. The court holds plaintiff has not substantially complied with certificate of merit requirements with respect to corporate negligence claims.  Rather, she entirely failed to file a certificate of merit that would be required to support such claims.  Based on the clear language of the certificate of merit, the corporate defendants believe plaintiff was only bringing a vicarious liability claim.  The court will strike from the complaint any claims for corporate negligence but will allow plaintiff to amend the complaint to state with specificity a claim of vicarious liability against the corporate defendants. If plaintiff retains an allegation of vicarious liability, she must plead explicit facts upon which corporate defendant’s awareness of the need to monitor their employee or duty to be aware of that need is based and further how that duty fits into a theory of vicarious liability.  The complaint does not allege with specificity which actions were performed by unnamed persons in the employ of the corporate defendant whose identities can be ascertained through discovery by looking at plaintiff’s records and seeing who is responsible.  Rather, the nature of the complaints against the corporate defendant’s actual or apparent agents, servants, volunteers or employees other than the person who is guilty of the sexual misconduct is generalized and clearly centered on the corporate actions of the corporate defendants and not the treatment or care rendered to plaintiff.  The court will therefore sustain corporate defendant’s second preliminary objection and provide plaintiff the opportunity to amend her complaint to either remove the references to unnamed apparent employees other than the actor involved or to plead with specificity the acts and omissions in the care of plaintiff that she alleges were committed by those unnamed persons.  In terms of recklessness, if the plaintiff discovers facts during the course of discovery that support culpability beyond mere negligence, they may move to amend to plead such facts but otherwise the PO on recklessness is granted.  The court also sustained MacMillen’s (the person who perpetrated the sexual misconduct) preliminary objection but allowed plaintiff to amend the complaint to specify either explicitly or by reference the duties allegedly violated and the inappropriate behaviors allegedly committed by MacMillen.  Therefore, the court granted all the POs but permits plaintiff to replead.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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