J. A15045/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
YVONNE HORSEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
THE CHESTER COUNTY HOSPITAL, :
WALEED S. SHALABY, M.D., AND :
JENNIFER AKINS, M.D., :
:
: No. 3066 EDA 2014
Appeal from the Order Entered September 24, 2014
In the Court of Common Pleas of Chester County
Civil Division No(s).: 2012-11537
BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2015
Appellant, Yvonne Horsey, appeals from the order entered in the
Chester County Court of Common Pleas granting Appellees’, The Chester
County Hospital, Waleed S. Shalaby, M.D., and Jennifer Akins, M.D.’s,
motion for summary judgment. Appellant avers the facts in this case
dispense with the need for a medical expert because the doctrine of res ipsa
loquitur is applicable, therefore, the court erred in granting summary
judgment. We affirm.
Appellant filed a complaint on January 10, 2013, asserting a
professional liability claim against all Appellees. Appellant’s Compl.,
*
Former Justice specially assigned to the Superior Court.
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1/10/13, at ¶ 5. Following Appellant’s surgery for an ovarian cyst, the drug
Dilaudid was administered to her “by means of a delivery system referred to
as a PCA[1] system.” Id. at ¶ 15. Appellant alleges Appellees were
negligent in the following respects:
a. Failure to properly set up the PCA equipment
b. Failure to properly program the PCA equipment
c. Failure to properly set the PCA equipment controls
d. Failure to use a proper concentration of Dilaudid
e. Failure to adequately monitor the patient
f. Failure to observe the patient
g. Failure to use apnea monitors
h. Failure to check blood pressure
i. Failure to verify PCA settings
j Failure to check the patient’s level of pain, alertness, vital
signs, rate and quality of respirations or failing to do so
with sufficient frequency
k. Failure to properly assess response to verbal or tactile
stimulation
l. Failure to check for factors that could increase the risk of
respiration depression or hypoxia and failure to employ
measures to prevent such consequences
1
PCA is defined as patient controlled analgesia. Vogelsberger v. Magee-
Womens Hosp. of UPMC Health Sys., 903 A.2d 540, 545 (Pa. Super.
2006); see also Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 159
n.15 (Pa. 2009).
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m. Failure to document PCA doses and patient monitoring
n. Failure to order and use a proper dose of Dilaudid
o. Failure to use morphine instead of hydromorphone
(Dilaudid)
p. Failure to use standard concentrations and standardizing
order forms
q. Failure to use dose error reduction software (DERS)
r. Failure to use or conduct an independent double-check
of the PCA programming[2]
Id. at ¶ 38(a)-(r).3 Appellant averred in the complaint that as a result of
Appellees’ negligence, Appellant sustained a permanent brain injury. Id. at
¶ 29.
On March 11, 2013, Appellant filed a motion to extend the time to file
a certificate of merit. Appellant averred, inter alia, as follows:
1. [Appellant] filed her Complaint alleging professional
negligence on January 10, 2013.
2
We note Appellees filed preliminary objections to the complaint. Averment
38(s), viz., “Otherwise acting in a negligent manner,” was stricken from the
complaint by the court pursuant to Connor v. Allegheny Gen. Hosp., 461
A.2d 600, 602 n.3 (Pa. 1983). Order, 8/16/13.
3
The complaint was filed by Robert E. Slota, Jr., Esq. He withdraw his
appearance on January 14, 2014. Subsequently, Melissa Ann Iacobucci,
Esq., an associate of Mr. Slota, represented Appellant. Order, 9/24/14, n.1.
Steven B. Barrett, Esq., entered his appearance on behalf of Appellant on
January 22, 2014. Ms. Iacobucci withdrew her appearance on July 8, 2014.
Current counsel, Norman Perlberger, entered his appearance for Appellant
on July 8, 2014.
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2. [Appellant] is aware of her duty to file a Certificate of
Merit as to [Appellees’] professional negligence in this
matter pursuant to Pennsylvania Rules of Civil Procedure
1042.3(a).[4]
* * *
6. Therefore, [Appellant] requests an extension of time of
sixty days in which to file a Certificate of Merit as to all
[Appellees] pursuant to Pennsylvania Rules of civil
Procedure 1042.3(d) which states in pertinent part, “[t]he
court, upon good cause shown, shall extend the time for
4
The rule provides:
(a) In any action based upon an allegation that a
licensed professional deviated from an acceptable
professional standard, the attorney for the plaintiff, or the
plaintiff if not represented, shall file with the complaint or
within sixty days after the filing of the complaint, a
certificate of merit signed by the attorney or party that
either
(1) an appropriate licensed professional has supplied a
written statement that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the
subject of the complaint, fell outside acceptable
professional standards and that such conduct was a cause
in bringing about the harm, or
(2) the claim that the defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals for whom this
defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed
professional is unnecessary for prosecution of the claim.
Pa.R.C.P. 1042.3(a)(1)-(3) (notes omitted).
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filing a certificate of merit for a period not to exceed sixty
days.”
Appellant’s Mot. to Extend Time to File a Certificate of Merit, 3/11/13, at 1, 2
(unpaginated).
On May 24, 2013, Appellees filed a notice of intention to enter
judgment of non pros within thirty days of the date of the filing if the
certificates of merit were not filed.5 On June 10, 2013, by agreement of the
parties, the court ordered, inter alia, that “[a]ny expert report of
[Appellant] shall be delivered to [Appellees] no later than June 30, 2014.”
Order, 6/10/13 (emphasis added). On June 27, 2013, Appellant filed
certificates of merit as to each Appellee. On August 16, 2013, the court
entered an order granting Appellant’s motion to extend time to file a
5
See Pa.R.C.P. 1042.6 Notice of Intent to Enter Judgment of Non Pros
for Failure to File Certificate of Merit. “Our rules of civil procedure
recognize the entry of a judgment of non pros . . . under [Pa.R.C.P.] 1042.7
for failure to file a certificate of merit . . . .” Estate of Denmark ex rel.
Hurst v. Williams, ___ A.3d ___, ___, 2015 WL 1912927 at *3 (Pa. Super.
2015). Rule 1042.7 provides, in pertinent part:
(a) The prothonotary, on praecipe of the defendant,
shall enter a judgment of non pros against the plaintiff for
failure to file a certificate of merit within the required time
provided that
(1) there is no pending motion for determination that
the filing of a certificate is not required or no pending
timely filed motion seeking to extend the time to file the
certificate,
(2) no certificate of merit has been filed . . . .
Pa.R.C.P. 1042.7.
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certificate of merit. The order provided Appellant “shall have an additional
sixty (60) days from the date of this Order in which to file Certificates of
Merit in compliance with Pa.R.C.P. 1042.3.[ ]” Order, 8/16/13. However,
the order further provided: “The court notes that [Appellant] filed
Certificates of Merit on June 27, 2013, while this Motion was pending. Since,
however, the Motion had not yet been decided, [Appellant’s] filing is deemed
premature and ineffective.” Order, 8/16/13, at 1 n.1. On October 15, 2013,
Appellant filed certificates of merit as to all Appellees. Appellant failed to
serve expert reports by the June 30, 2014 court-ordered deadline.
On August 6, 2014, Appellees filed a motion for summary judgment
contending that Appellant “cannot establish a prima facie case against
[Appellees] because she has failed to serve an expert report that is critical of
any care rendered by [Appellees].” Appellees’ Mot. for Summ. J., 8/6/14, at
2 (unpaginated). Appellant filed a response to the motion for summary
judgment contending an expert report was not required because Appellees’
“own records serve as an admission to the alleged negligence and, as such
provide a sufficient basis for a prima facie case.” Appellant’s Resp. to Mot.
for Summ. J., 8/18/14, at 1 (unpaginated). Appellant contended the
doctrine of res ipsa loquitur6 was applicable in the case sub judice.
6
The Restatement (Second) of Torts articulated the doctrine of res ipsa
loquitur as follows:
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Appellant’s Mem. of Law in Opp’n to Appellees’ Mot. for Summ. J., 8/18/14,
at 4 (unpaginated). On September 24, 2014, the court entered an order
granting Appellees’ motion for summary judgment
Meanwhile, on September 5, 2014, Appellees filed a motion to strike
certificates of merit pursuant to Rule 1042.3(a)(1) and for non pros based
upon Appellant’s contention that no expert report was needed. Appellees’
Mot. to Strike Certificates of Merit and for Judgment of Non Pros, 9/5/14, at
4 (unpaginated). Appellees aver a certificate of merit should have been filed
pursuant to Rule 1042.3(a)(3). Id. On September 25, 2014, the court
denied as moot Appellees’ motion to strike certificates of merit and for
judgment of non pros.
This timely appeal followed. Appellant filed a timely court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a responsive opinion.
(1) It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not
occur in the absence of negligence;
(b) other responsible causes, including the conduct of
the plaintiff and third persons, are sufficiently
eliminated by the evidence; and
(c) the indicated negligence is within the scope of the
defendant’s duty to the plaintiff.
Restatement (Second) of Torts § 328(D).
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Appellant raises the following issues for our review:
1. Where the hospital records of [Appellee] Hospital
concede that [Appellant] was administered excessive doses
of Dilaudid and that [Appellant] suffered injury therefrom,
did not these operative facts lend themselves to the
application of res ipsa loquitur, thereby dispensing with the
need for a medical expert, and was not the lower court’s
reliance on the Durkin[7] and Vasquez[8] cases erroneous?
2. Where prior counsel improvidently filed Certificates of
Merit asserting that he had expert opinions that
[Appellees] had deviated from the standard of care or
causation in treating [Appellant], but in reality, no expert
was required, was it not error to dismiss the case and take
it away from the trier-or-fact?
Appellant’s Brief at 4.
We address Appellant’s arguments together because they are
interrelated. Appellant contends the doctrine of res ipsa loquitur applies in
the instant case thus obviating the need for expert testimony to establish
Appellees’ negligence. Id. at 10. She argues the circumstances “are such
that a lay juror could recognize negligence just as well as any expert.” Id.
Appellant contends that there is no question that the administration of
Dilaudid was excessive and as a result she suffered harm, therefore, no
expert testimony was required. Id. at 12. Appellant avers “[i]t is without
debate or argument that the certificates filed by predecessor counsel were
filed under subsection (1) and not subsection (3).” Id. at 15. She
7
Durkin v. Equine Clinics, Inc., 459 A.2d 417 (Pa. Super. 1983).
8
Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395 (Pa. Super. 2012).
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concludes it was error for the trial court to grant summary judgment. Id. at
16.
Our review is governed by the following principles:
“Our scope of review of a trial court’s order granting or
denying summary judgment is plenary[.]” We may not
disturb the order of the trial court unless it is established
that the court committed an error of law or abused its
discretion.
In evaluating the trial court’s decision to enter
summary judgment, we focus on the legal standard
articulated in the summary judgment rule. Pa.R.C.P.
1035.2. The rule states that where there is no
genuine issue of material fact and the moving party
is entitled to relief as a matter of law, summary
judgment may be entered. Where the non-moving
party bears the burden of proof on an issue, he may
not merely rely on his pleadings or answers in order
to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the
burden of proof establishes the entitlement of the
moving party to judgment as a matter of law.
Lastly, we will review 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.
Summary judgment should be granted when the “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.”
Medical malpractice consists of a negligent or
unskillful performance by a physician of the duties
which are devolved and incumbent upon him on
account of his relations with his patients, or of a
want of proper care and skill in the performance of a
professional act. Because medical malpractice is a
form of negligence, to state a prima facie cause of
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action, a plaintiff must demonstrate the elements of
negligence: duty owed by the physician to the
patient, a breach of that duty by the physician, that
the breach was the proximate cause of the harm
suffered, and the damages suffered were a direct
result of harm. With all but the most self-evident
medical malpractice actions there is also the added
requirement that the plaintiff must provide a
medical expert who will testify as to the
elements of duty, breach, and causation.
Vazquez, 39 A.3d at 397-98 (some citations omitted and emphasis added).
In Durkin, this Court held that
no presumption of inference of negligence arises merely
because the medical treatment culminates in a bad result.
. . . . The question in this case involved a reaction to
certain types and dosages of drugs and the possible cause
of such a reaction. An adverse reaction to medication
may have many possible causes. Therefore, this was
not an appropriate case for an instruction on res ipsa
loquitur.
Durkin, 459 A.2d at 419 (emphasis added).
In the case sub judice, the trial court opined:
[Appellant’s] Complaint alleges a brain injury resulting
from the administration of the drug Dilaudid.
* * *
Because of her injury, [Appellant] cannot testify as to
the administration of this drug. [Appellant] must produce
a witness who can interpret and read a medical chart in
order for the jury to understand the issues of negligence.
An area of testimony for this individual would be, 1) was
the drug indicated for this condition; 2) what is the correct
dosage of the drug for a person with this condition; 3)
what is the correct dosage for a person of [Appellant’s]
height; 4) what is the correct dosage for a person of
[Appellant’s] weight; [5] how should the drug be
administered; 6) should the drug be administered once a
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day or multiple times a day; 7) should the drug be
administered through a PCA system; 8) what are the
contra indications of administering this drug; 9) what are
the side effect of administering this drug; 10) was the drug
administered in too high a quantity; 11) was the drug
administered over too short a period of time; or 12) was it
a combination of all of these factors. This testimony,
which may well be based upon an interpretation of
the medical charts, requires an expert.
Trial Ct. Op. at 2, 3 (emphasis added). We agree. Based upon Appellant’s
failure to produce expert reports, we discern no error of law or abuse of
discretion by the trial court in granting Appellees’ motion for summary
judgment. See Vazquez, 39 A.3d at 397-98.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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