J-A05023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE HANCOCK AND JOAN IN THE SUPERIOR COURT OF
HANCOCK, PENNSYLVANIA
Appellants
v.
FRIENDS HOSPITAL, PSYCHIATRIC
SOLUTIONS, INC., FRIENDS HOSPITAL
BEHAVIORAL HEALTH SYSTEMS, LP,
FRIENDS GP, LLC, LEAH E.
ROSENKRANTZ, D.O. AND LUIDMILA
LOBACH, M.D.,
Appellees No. 1666 EDA 2014
Appeal from the Order entered May 7, 2014,
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No(s): April Term, 2012 No. 01935
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 09, 2015
Spouses George and Joan Hancock, (“Mr. Hancock”, “Mrs. Hancock,”
or collectively, “Appellants”), appeal from the trial court’s order granting
summary judgment in favor of Friends Hospital, Psychiatric Solutions, Inc.,
Friends Hospital Behavioral Health Systems, LP, Friends GP, LLC, Leah E.
Rosenkrantz, D.O. and Luidmila Lobach, M.D., (“Dr. Lobach,” or collectively,
“Hospital”). We affirm.
The trial court detailed the factual and procedural history of this case
as follows:
On July 20, 2010, [Mr. Hancock] voluntarily presented himself at
Friends Hospital. He waited in the Main Lobby waiting area for
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approximately eight hours – from 2:30 p.m. to 10:30 p.m. Mr.
Hancock dozed and sat quietly until 4:00 p.m. when he was
interviewed by a nurse. He continued to sit quietly the
remainder of the evening. [Dr. Lobach] met with Mr. Hancock
for 45 minutes from 6:15 p.m. to 7:00 p.m. At 10:30 p.m.
when he was discharged, Mr. Hancock was referred to a social
service agency to get housing and medications. While Mr.
Hancock remained in the waiting area, he was being monitored
every 15 minutes.
On July 22, 2010, Mr. Hancock drove his van into his wife's
car, causing injuries to both of them. Mr. Hancock was arrested
and subsequently incarcerated.1
In April, 2012, [Appellants] initiated this litigation against
Friends Hospital, Dr. Lobach and others, claiming inter alia,
gross negligence and negligence because [Hospital] knew [Mr.
Hancock] needed a place to sleep, knew he had substance abuse
and mental health problems, and, that by failing to hospitalize
him on July 20th, it was foreseeable that Mr. Hancock would act
violently toward himself and his wife.
After litigation discovery was closed, [Hospital] filed
Motions for Summary Judgment, which were opposed by
[Appellants]. On April 7, 2014, this Court granted Summary
Judgment in Part, finding that as a matter of law the record does
not support gross negligence. The Motions based on negligence
were denied.
The April 7, 2014 Orders were vacated following Motions
for Reconsideration filed by all parties. Supplemental
Memoranda were submitted and oral argument was heard by
this Court. On May 6, 2014, this Court ruled from the bench and
provided the overview and analysis in support of Findings of Fact
and Conclusions of Law for the decisions: that all of [Hospital’s]
____________________________________________
1
In their statement of the case, Appellants further posit that “[t]wo days
after having been discharged from [Hospital], Mr. Hancock attempted to kill
himself by sticking a knife in his stomach; he then drove his van directly into
[his wife’s] car while she was inside her vehicle. Mr. Hancock was arrested,
charged with multiple felonies, spent an extended period of time in prison,
contracted MRSA while in prison, and was divorced by his wife of 27 years,
all as a direct result of this incident.” Appellants’ Brief at 5-6.
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Motions for Summary Judgment were granted, that [Appellants’]
Motion for Reconsideration was denied, and, that [Appellants’]
Complaint was Dismissed With Prejudice.
When considering the Mental Health Procedures Act,
Section 7114(a), [Hospital is] immune from civil liability
inasmuch as they all participated in the decision to discharge
[Mr.] Hancock on July 20, 2010.
In accordance with Rule 1925(a) of the Pennsylvania Rules
of Appellate Procedure, this Court respectfully refers the
Honorable Superior Court to the Hearing Transcript, dated May
6, 2014, as the reasons for the rulings.
Trial Court Opinion, 6/23/14, at 1-2. The trial court did not order Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellants present the following issues for our consideration:
A. Did the trial court err in granting the Motion for Summary
Judgment of [Hospital] and dismissing [Appellants’]
Complaint with Prejudice?
B. Did the trial court err in granting the Motion for Summary
Judgment of [Dr. Lobach] and dismissing [Appellants’]
Complaint with Prejudice?
Appellants’ Brief at 4.
Our scope of review … [of summary judgment orders] … is
plenary. We apply the same standard as the trial court,
reviewing all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record in
the light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Only where there is no
genuine issue as to any material fact and it is clear that the
moving party is entitled to judgment as a matter of law will
summary judgment be entered.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
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action. Summary judgment is proper if, after the completion of
discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of
proof at trial has failed to produce evidence of facts essential to
the cause of action or defense which in a jury trial would require
the issues to be submitted to a jury. Thus a record that
supports summary judgment will either (1) show the material
facts are undisputed or (2) contain insufficient evidence of facts
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury. Upon
appellate review we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions. The
appellate Court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012)
(internal citation omitted).
Initially, we note that Appellants’ argument does not adhere to our
rules of appellate procedure. See Pa.R.A.P. Rule 2119 (“The argument
shall be divided into as many parts as there are questions to be
argued …, followed by such discussion and citation of authorities as are
deemed pertinent.”) (emphasis supplied). Appellants present only two
questions for our review, yet they subdivide their argument into seven parts.
Appellants compound their procedural misstep by failing to develop all of
these subparts appropriately. Indeed, Appellants include in their argument
the contention that “[Appellants] have stated a viable claim under the
Emergency Medical Treatment and Active Labor Act (“EMTALA”) against
[Hospital].” Appellants’ Brief at 11. This argument is not articulated in
Appellants’ statement of questions. Moreover, while Appellants cite to the
record in support of their contention, Appellants do not cite any case law to
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buttress their EMTALA argument. See Appellants’ Brief at 22-26.
Accordingly, we find this issue waived for appellate review and we decline to
reach it. See Giant Food Stores, LLC v. THF Silver Spring
Development, L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (“Appellant’s
issue on appeal is waived because [Appellant] has failed to set forth in its
appellate brief any citation to legal authority pertaining to [Appellant’s]
argument”). Additionally, Appellants argue that Hospital is “legally
responsible for the actions of” Dr. Lobach, yet Appellants fail to cite a single
case for this proposition, and rely only on a citation to the “Pennsylvania
Suggested Standard Jury Instructions, 4th Ed. § 14.80.” Appellants’ Brief at
34-35. Again, Appellants’ failure to develop their argument effects waiver.
See Giant Food Stores, supra, at 444. Moreover, our finding that Hospital
is immune from liability as delineated more fully below renders unavailing
Appellants’ additional arguments regarding the viability of Mrs. Hancock’s
third party claim, Mrs. Hancock’s loss of consortium claim, Appellants’ joint
claim “for loss of their marital relationship,” and Mr. Hancock’s contention
that Hospital is “directly responsible for his arrest, incarceration and
ultimately for his guilty plea to aggravated assault.” See Appellants’ Brief at
26-33.
Appellants contend that the Mental Health Procedures Act, (“MHPA”),
50 P.S. § 7103 et seq, does not apply to this action, and that therefore,
Hospital is not entitled to the immunity from liability that the MHPA affords
mental health providers under 50 P.S. § 7114. See Appellants’ Brief at 8.
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Appellants’ counsel argued before the trial court:
The [Mental Health] Act establishes rights and procedures
for all involuntary treatment of mentally ill persons, whether
inpatient or outpatient, and for all voluntary inpatient treatment
of mentally ill persons.
Now, Mr. Hancock, everyone will concede [that] this was
not a case of involuntary treatment. He voluntarily presented
himself. I think that everyone else will also concede that Mr.
Hancock was never treated as an inpatient. So this is not a case
of voluntary inpatient treatment of a mentally ill person.
So, yes, Mr. Hancock wanted to be inpatient for treatment.
That’s why he was there. And if he had been admitted, we
wouldn’t be here today, but he wasn’t admitted.
N.T., 5/6/14, at 32-33. Appellants further argue that “[s]ince Mr. Hancock’s
treatment was voluntary and performed as an outpatient, his treatment was
not ‘encompassed within the protection of the Act.’ Therefore, the immunity
provisions of the Act do not apply to [Hospital].” Appellants’ Brief at 9. We
disagree.
The MHPA specifically provides:
Immunity from Civil and Criminal Liability.—(a) In the absence
of willful misconduct or gross negligence, a county
administrator, a director of a facility, a physician, a peace
officer or any other authorized person who participates in
a decision that a person be examined or treated under
this act, or that a person be discharged, or placed under
partial hospitalization, outpatient care or leave of absence, or
that the restraint upon such person be otherwise reduced, or a
county administrator or other authorized person who denies
an application for voluntary treatment or for involuntary
emergency examination and treatment, shall not be civilly or
criminally liable for such a decision or for any of its
consequences.
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50 P.S. § 7114(a) (emphasis supplied). Thus, based on a plain reading of
the statute, Hospital is immune from civil liability for the decision not to
admit Mr. Hancock for voluntary inpatient treatment, as well as for any of
the decision’s consequences such as Mr. Hancock’s attempted suicide, motor
vehicle accident, and the resulting personal injuries to Appellants. See In
re R.D.R., 876 A.2d 1009, 1016 (Pa. Super. 2005) (“[W]hen interpreting a
statute, the court must give plain meaning to the words of the statute. It is
not a court’s place to imbue the statute with a meaning other than that
dictated by the plain and unambiguous language of the statute.”); see also
1 Pa.C.S.A. § 1921(a)-(b) (“(a) The object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the
General Assembly. Every statute shall be construed, if possible, to give
effect to all its provisions. (b) When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”); compare Fogg v. Paoli Memorial
Hospital, 686 A.2d 1355, 1358 (Pa. Super. 1996) (hospital was not immune
from liability pursuant to 50 P.S. § 7114(a) for death of mentally ill patient
who presented to emergency room, but was never evaluated or treated prior
to patient’s suicidal fall from hospital window). Specifically, in affirming the
trial court’s determination that appellant/hospital was not entitled to
immunity, we reiterated that “[t]he decision making process referred to in
7114 was found to be one ‘which would take place within the context of
treatment, care, diagnosis or rehabilitation’.” Fogg, supra, at 1358 citing
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McNamara v. Schleifer Ambulance Serv., 556 A.2d 448, 449 (Pa. Super.
1989). We further explained:
In this case the trial court correctly noted that [patient] was not
yet being treated by Appellant[-hospital] at the time of
his injuries. Although he presented himself for treatment
at the emergency room, he was not examined or treated
by any hospital personal [sic] while in the emergency
room, and no decisions regarding his care or treatment
were made while [patient] was at Appellant[-hospital's]
facility. Since no one from Appellant-hospital who was trained
in the field of mental health was treating Appellant or making
decisions regarding his treatment at the time of the accident,
Appellant[-hospital] cannot avail itself of the immunity
protections of the MHPA.
Fogg, supra, at 1358.
Here, by contrast, following his voluntary presentation at Hospital’s
emergency room for treatment, Mr. Hancock was examined and treated by
various Hospital personnel who were trained in the field of mental health,
and made decisions regarding Mr. Hancock’s care and treatment while he
was at Hospital’s emergency room. It is undisputed that prior to his
discharge from Hospital, Mr. Hancock had been evaluated by a nurse, Denise
McClellan, and Dr. Lobach, a psychiatry resident physician, and was
discharged by an attending physician, Dr. Leah E. Rosenkrantz. See
generally Mr. Hancock’s Medical Records from Hospital, 7/20/12. It is
further undisputed that Mr. Hancock was diagnosed with non-acute
depressive disorder, and alcohol and drug dependency, and was referred to
an outside facility for follow-up. Id. Moreover, at the conclusion of oral
arguments, the trial court observed:
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Section 7114(a), I'm not focusing so much on treatment,
although I acknowledge that every 15-minute observation could
be characterized as treatment, so I don’t want to suggest that he
was not treated, but I believe that the participation and the
decision that a person be discharged, or any other authorized
person who denies an application for voluntary treatment, which
is what we have here, brings in the immunity and none of the
defendants can be civilly liable for those decisions or for those
consequences.
N.T., 5/6/14, at 49-50.
Our Supreme Court has determined:
Section [7]114 [of the MHPA] speaks of immunity of ones
“who participates in a decision that a person be examined or
treated under this act, ...” 50 P.S. § 7114. Treatment is defined
in the MHPA as follows:
Adequate treatment means a course of treatment designed
and administered to alleviate a person's pain and distress
and to maximize the probability of his recovery from
mental illness. It shall be provided to all persons in
treatment who are subject to this act. It may include
inpatient treatment, partial hospitalization, or
outpatient treatment. Adequate inpatient treatment
shall include such accommodations, diet, heat, light,
sanitary facilities, clothing, recreation, education and
medical care as are necessary to maintain decent, safe and
healthful living conditions.
Treatment shall include diagnosis, evaluation,
therapy, or rehabilitation needed to alleviate pain
and distress and to facilitate the recovery of a
person from mental illness and shall also include
care and other services that supplement treatment
and aid or promote such recovery.
50 P.S. § 7104.
Farago v. Sacred Heart General Hospital, 562 A.2d 300, 304 (Pa. 1989)
(emphasis supplied).
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While Appellants criticize the nature and extent of Mr. Hancock’s
treatment at Hospital, the record when viewed in the light most favorable to
Appellants reflects that Mr. Hancock was indeed treated by Hospital
personnel trained in mental health, and a decision was made regarding his
care by Hospital, which denied him admission for voluntary inpatient
treatment. Accordingly, Appellants’ argument that Hospital’s treatment of
Mr. Hancock falls outside of the purview of 50 P.S. § 7114(a) fails, and
Hospital is entitled to invoke the MHPA’s immunity provision.
Appellants further argue that “[e]ven if the [MHPA] were to apply to
this matter, [Appellants] have provided sufficient proof that [Dr. Lobach’s]
treatment constituted a gross departure from the standard of care.”
Appellants’ Brief at 9 (bold omitted). Again, we cannot agree. As set forth
in Albright v. Abington Memorial Hospital, 696 A.2d 1159 (Pa. 1997),
and relied upon by the trial court, our Supreme Court explained:
It appears that the legislature intended to require that
liability be premised on facts indicating more egregiously
deviant conduct than ordinary carelessness, inadvertence,
laxity, or indifference. We hold that the legislature
intended the term gross negligence to mean a form of
negligence where the facts support substantially more than
ordinary carelessness, inadvertence, laxity, or indifference.
The behavior of the defendant must be flagrant, grossly
deviating from the ordinary standard of care.
Bloom, 409 Pa.Super. at 98-99, 597 A.2d at 679.
We believe that this definition is a clear, reasonable, and
workable definition of gross negligence which is consistent with
the purpose and intent of the [MHPA]. []
***
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While it is generally true that the issue of whether a given
set of facts satisfies the definition of gross negligence is a
question of fact to be determined by a jury, a court may take the
issue from a jury, and decide the issue as a matter of law, if the
conduct in question falls short of gross negligence, the case is
entirely free from doubt, and no reasonable jury could find gross
negligence. See, e.g., Willett v. Evergreen Homes, Inc., et. al.,
407 Pa.Super. 141, 595 A.2d 164 (1991), alloc. denied, 529 Pa.
623, 600 A.2d 539 (1991) (summary judgment affirmed as to
employees of facility pursuant to Mental Health and Retardation
Act of 1966, 50 P.S. § 4603, which contains a limited immunity
provision similar to that found in the [MHPA] at issue and which
immunizes certain treatment decisions unless such decisions rise
to the level of, inter alia, gross negligence); 57A Am.Jur.2d §
256. []
***
To require mental health employees and their employers to
defend jury trials on the issue of gross negligence where the trial
judge finds as a matter of law that, at best, only ordinary
negligence has been established, would gut the limited immunity
provision of the [MHPA] of any meaning and unfairly subject
such employees and facilities to protracted and expensive
litigation. []
***
[] We cannot expect those covered by the [MHPA] to be
soothsayers, and the limited immunity provision of the [MHPA]
recognizes this understanding. The granting of summary
judgment is particularly appropriate here in light of the intent of
the [MHPA] to provide limited immunity from civil and criminal
liability to mental health personnel and their employers in
rendering treatment in this “unscientific and inexact field.”
Farago v. Sacred Heart General Hospital, 522 Pa. 410, 417, 562
A.2d 300, 304 (1989). The purpose of the [MHPA's] immunity
provision is to insulate mental health employees and their
employers from liability for the very determinations made by the
Hospital here.
In summary, we find that the lower courts applied a clear
and workable definition of gross negligence, which, for
purposes of the [MHPA], constitutes conduct substantially
more than ordinary carelessness, inadvertence, laxity, or
indifference; that is, behavior that is flagrant, grossly
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deviating from the ordinary standard of care. Moreover, we
find that when presented with facts that do not meet the
definition of gross negligence, as a matter of law, a court may
withdraw the factual determination of gross negligence from the
jury and decide the question as a matter of law.
Albright v. Abington Memorial Hospital, 696 A.2d 1159, 1164-1165;
1167 (Pa. 1997) (emphasis supplied).
Based on our careful scrutiny of the record in the light most favorable
to Appellants, we find that the trial court did not err in granting summary
judgment in favor of Hospital because Hospital was not grossly negligent.
Specifically, the trial court explained:
[] I just simply cannot find gross negligence [here].
And I looked at the expert report of [Appellants’ expert]
Dr. Schouten from Harvard, M.D., J.D. I looked at everything
that he said. I still can't find gross negligence here. And if,
indeed, we were at a nonsuit stage, I think we'd be in trouble,
[Appellants, I] really do, because he has just accumulated a
bunch of factors that, basically, poor Mr. Hancock just didn't
have a place to sleep and he needed a place to sleep that night.
That’s what I got out of it.
So, anyway, okay, the expert report of Dr. Schouten, in
some situations there are occasions when there's a summary
judgment motion where simply having a plaintiff’s expert report
is enough to overcome a summary judgment motion, but I've
read it and I don't see that here. So I'm certainly going to refer
to the quote that all of you have referred to. There are two
quotes. One is the Albright quote where the determination of
whether or not a factor, whether or not a situation involves gross
negligence is usually for a jury but may be removed when, as a
matter of law, the judge feels it’s free from doubt and there's no
possibility that a jury could find gross negligence, and I really do
believe this is that situation.
When we look at these factors here, you know, he was
estranged from his son, he was living in his car, he had medical
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problems, you know, those types of factors, that’s not enough to
find gross negligence.
And then I look also in the Albright case where they say,
therefore, what is gross negligence? It’s not just ordinary
carelessness or inadvertence or laxity or indifference. And
looking at Albright as a guide, I think that I feel comfortable that
there’s no gross negligence here.
N.T., 5/6/14, at 42-44.
Significantly, Mr. Hancock admitted changing his mind about wanting
to commit suicide prior to presenting at Hospital, and that he “wanted to
live.” See Memorandum of Law in Support of [Hospitals’] Response in
Opposition to [Appellants’] Motion for Reconsideration, 4/30/14, Exhibit E;
N.T., Mr. Hancock’s Deposition, Volume II, 4/18/13, at 154. Mr. Hancock
further acknowledged that he advised Hospital’s staff that he “d[id]n’t want
to commit suicide. I’m here to live.” Id. at 156. Mr. Hancock conceded he
“never told anyone that [he] wanted to harm or kill” his wife. Id. at 162.
Accordingly, the record reflects that in deciding not to admit Mr. Hancock for
voluntary inpatient treatment, Hospital’s actions did not constitute “conduct
substantially more than ordinary carelessness, inadvertence, laxity, or
indifference; that is, behavior that is flagrant, grossly deviating from the
ordinary standard of care.” Albright, supra, at 1167.
Based on the foregoing, we find that the trial court did not err in
granting summary judgment in favor of Hospital because Hospital was not
grossly negligent in treating Mr. Hancock, and was immune from liability
pursuant to 50 P.S. § 7114(a).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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