stating that other independent causes of action may be available, such as defamation or intentional infliction of emotional distress, based on actions taken beyond the scope of the medical diagnosis and treatment
How later courts described this case
- stating that other independent causes of action may be available, such as defamation or intentional infliction of emotional distress, based on actions taken beyond the scope of the medical diagnosis and treatment
- duty to parents may arise when psychiatrist who treats child becomes “deeply enmeshed” in legal proceedings against the parents
Written by the judges who cited it.
The opinion
McEWEN, President Judge,
concurring and dissenting:
I rush to join the well-reasoned Opinion of the majority, for I agree that Dr. Cohen owed a duty of care to both Nicole and to her parents. I must, however, dissent from the disposition by the majority of the Althauses’ cross-appeal.
First, I am of the view that, under the circumstances if this case, it was error to refuse to submit the issue of punitive damages to the jury. Punitive damages may be awarded based upon a defendant’s reckless indifference to the rights of others. The record created over the course of this three-week trial contains evidence of outrageous behavior by Dr. Cohen, which if accepted as true by the jury, was more than sufficient to support an award of punitive damages. Specifically, Dr. Cohen, who had objected to the proposed independent psychiatric examination of Nicole, testified, as the majority states, to matters of abuse despite her knowledge that portions of the oral testimony of Nicole herself were false and untrue. See, e.g.: SHV Coal v. Continental Grain Corp., 526 Pa. 489, 493-95 , 587 A.2d 702, 704 (1991); Bannar v. Miller, 701 A.2d 232, 242 (Pa.Super.1997); Takes v. Metropolitan Edison *1160 Corp., 440 Pa.Super. 101, 116-18 , 655 A.2d 138, 146 (1995), rev’d on other grounds, 548 Pa. 92 , 695 A.2d 397 (1997). Thus, I would find that it was error to refuse to submit the issue of punitive damages.
Moreover, I am unable to agree 1 that where a party “has failed to cite any authority in support of a contention, the claim is waived.” However, while I would reach th merits of the first two issues presented in the Althauses’ appeal which the majority deems waived, I, nonetheless, concur in the disposition of the majority since I would find:
That appellants have not demonstrated that the trial court erred when it concluded that the good faith immunity provisions of the child protective services law, 23 P.C.S. § 6318, precluded the Althauses from using Dr. Cohen’s testimony from the various legal proceedings for the purpose of supporting their allegations of negligence, and
That appellants have not demonstrated that the trial court erred when it precluded the Althauses from submitting testimony relating to the results of Mr. Althaus’s lie detector test and to the fact that Dr. Cohen was aware that he had passed it, for surely the trial court in its discretion could properly conclude that the prejudicial effect of evidence of the lie detector test outweighed its probative value.
. Rule 2119(a) provides, in pertinent part, that the argument portion of the brief "shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type ...—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a)(emphasis supplied). The case cited by the majority as support for the finding of waiver, in turn, rely upon Bunt v. Pension Mortgage Associates, Inc., 446 Pa.Super. 359 , 666 A.2d 1091 (1995), wherein the Court held: “Arguments that are not appropriately developed are waived.” Id. at 368 , 666 A.2d at 1095 quoting Gallagher v. Sheridan, 445 Pa.Super. 266, 270 , 665 A.2d 485, 487 (1995), allo, denied, 544 Pa. 631 , 675 A.2d 1249 (1996)(emphasis in original).