MEDICAL MALPRACTICE-CORPORATE LIABILITY-SEXUAL MISCONDUCT

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.