K.H. v. Kumar, S., M.D
122 A.3d 1080
| Pa. Super. Ct. | 2015Background
- Infant K.H., born prematurely in 2002, had multiple medical visits between Sept.–Dec. 2002 for respiratory/GI issues; radiologists and physicians observed healing rib fractures, vertebral deformities, head findings, and bruising.
- Several treating physicians (pediatricians, orthopedist, radiologists, gastroenterologist) either questioned abuse or documented suspicious findings; some ordered tests that were later canceled.
- On Dec. 18, 2002 K.H. was found unresponsive and later diagnosed with abusive head trauma; his father was convicted of felony child abuse.
- Appellants (K.H., by parents) sued multiple providers and LGH alleging medical malpractice for failure to recognize/diagnose and report suspected child abuse under the Child Protective Services Law (CPSL) and common-law negligence/corporate negligence.
- Trial court granted summary judgment for defendants, holding (inter alia) that lack of an express private civil remedy under the CPSL precluded common-law claims for failure to report; later entered final dismissal.
- Superior Court reversed and remanded, holding plaintiffs presented sufficient expert evidence to create triable issues on duty, breach, causation (including increased-risk-of-harm theory), and corporate negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether coordinate-jurisdiction rule barred later judge from granting summary judgment after earlier judge denied preliminary objections | Earlier judge already decided legality in plaintiffs' favor; later judge should not reverse | Different motion type (summary judgment vs preliminary objections) permits revisiting; record may have grown | Denied coordinate-jurisdiction bar; later grant of summary judgment was permissible |
| Whether absence of an express civil remedy in CPSL bars common-law medical-malpractice claims for failing to report suspected child abuse | Claims are common-law malpractice, not a statutory private cause of action; CPSL omission does not implicitly preclude common-law duties | Legislature’s criminalization and silence imply no private remedy; plaintiffs are effectively seeking to create a statutory-like remedy | CPSL silence does not preclude common-law malpractice claims; court will treat the claims as malpractice claims for jury determination |
| Whether plaintiffs established duty, breach, causation to survive summary judgment (including negligence-per-se and increased-risk-of-harm causation) | Physicians owed duty via physician–patient relationship; experts show reporting is standard of care and breaches increased risk of harm; children and youth would likely have intervened | No specific common-law duty to report; causation speculative because cannot prove CYS intervention would have prevented injury | Plaintiffs presented sufficient expert testimony on standard of care, breaches, damages, and increased-risk causation to create genuine issues for a jury; negligence-per-se instruction left to trial |
| Whether hospital (LGH) liable for corporate negligence (policies, credentialing, retention of radiographs/readers) | LGH failed to have adequate policies for prior imaging retention and failed to ensure appropriately qualified radiology readers | Radiologist credentials show competence; plaintiffs produced no specific hospital policy failures | Genuine factual disputes exist (e.g., availability of prior studies, Dr. Mack’s role/competence) so corporate-negligence claims survive summary judgment |
Key Cases Cited
- First v. Zem Zem Temple, 686 A.2d 18 (Pa. Super. 1996) (summary judgment standard; view record in light most favorable to nonmoving party)
- Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168 (Pa. Super. 1988) (coordinate-jurisdiction rule not absolute where motions differ)
- Goldey v. Trustees of Univ. of Pa., 675 A.2d 264 (Pa. 1996) (later motion of a different kind may be decided despite prior judge's ruling)
- Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140 (Pa. 2003) (elements and standards for medical malpractice)
- Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990) (expert testimony requirement in malpractice cases)
- Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (relaxed increased-risk-of-harm causation standard in certain malpractice claims)
- Montgomery v. S. Phila. Med. Grp., Inc., 656 A.2d 1385 (Pa. Super. 1995) (defendant cannot escape liability because harm might have occurred absent negligence)
- Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991) (corporate negligence doctrine and hospital nondelegable duties)