In the case of Herr v. Myers, No. 30007 of 2023, C.A. (C.P. Lawr. Co. Dec. 4, 2024 Hodge, J.), the court sustained various Preliminary Objections asserted by medical malpractice Defendants.
In this case, the Plaintiff sued certain medical providers under a claim of medical battery arising from post-surgical home health care. According to the Plaintiff, a registered nurse removed his post-surgical wound vac contrary to the instructions of his physicians. The Plaintiff alleged that this removal of the post-surgical wound vac caused complications that required additional treatment and surgery.
The Plaintiff sued the registered nurse and her employer for negligence in medical battery. The Defendants responded with Preliminary Objections, asserting in part, that the Plaintiff’s claims for medical battery was legally insufficient because the Medical Care Availability and Reduction of Error Act (MCARE Act) did not provide a cause of action for medical battery against nurses, who are not responsible for obtaining informed consent. The Defendants also objected to the Plaintiff’s claim for punitive damages.
The court agreed that a nurse is excluded from the definition of a “healthcare provider” who must obtain a patient’s informed consent under both the common law and the MCARE Act.
However, the court noted that the removal of a wound vac did not constitute a surgical procedure and that the wound vac was not classified as a surgical device.
The court also noted that the Defendant healthcare provider who removed the wound vac was a registered nurse rather than a physician or a surgeon and that the registered nurse was, therefore, not required to obtain informed consent when providing routine medical treatment.
Accordingly, the court sustained the Defendants’ Preliminary Objections regarding Plaintiff’s claim for medical battery and struck this claim from the Complaint.
The court also found that the Plaintiff’s claims for punitive damages were legal insufficient as the Plaintiff’s Complaint only stated facts sufficient to assert a claim of negligence. The court found that the alleged facts were not sufficient to demonstrate a level of recklessness necessary to support an award of punitive damages. As such, the punitive damages claims was also stricken.
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Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (March 6, 2025).