J-A10022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BENJAMIN ARTHUR PINK, BY JOYCE IN THE SUPERIOR COURT OF
SMITH, HIS ATTORNEY-IN-FACT, PENNSYLVANIA
Appellant
v.
UPMC PRESBYTERIAN SHADYSIDE,
T/D/B/A WESTERN PSYCHIATRIC
INSTITUTE AND CLINIC,
Appellee No. 752 WDA 2015
Appeal from the Order Entered April 13, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): NP. GD12-020560
BENJAMIN ARTHUR PINK, BY JOYCE IN THE SUPERIOR COURT OF
SMITH, HIS ATTORNEY-IN-FACT, PENNSYLVANIA
Appellant
v.
UPMC PRESBYTERIAN SHADYSIDE,
T/D/B/A WESTERN PSYCHIATRIC
INSTITUTE AND CLINIC,
Appellee No. 753 WDA 2015
Appeal from the Order Entered April 27, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD12-020560
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2016
Appellant, Benjamin Arthur Pink, by Joyce Smith, his attorney-in-fact,
appeals from the order granting summary judgment in favor of Appellee,
J-A10022-16
UPMC Presbyterian Shadyside t/d/b/a Western Psychiatric Institute and
Clinic.1 After careful review, we affirm.
Appellant has been diagnosed with autism, mental retardation, and
impulse disorder. Appellant’s Brief at 7. In 2009, Appellant moved into a
group home “because he wanted to go and live independently or co-
dependently….” N.T. Deposition of Joyce Smith, 9/24/14, at 13. On August
24, 2010, he was involuntarily committed to Western Psychiatric Institute
and Clinic (WPIC) under Section 7302 of the Mental Health Procedures Act of
1976, 50 P.S. §§ 7101-7503, (MHPA), for aggressive behavior and
destruction of property. Id.
As summarized by the trial court in its opinion:
The “known” facts in this case are substantially undisputed.
[Appellant] alleges that he suffered two injuries while admitted
as an in-patient at [WPIC]. On or about October 26, 2010,
[Appellant] suffered an injury of unknown cause resulting in a
non-displaced or incomplete fracture of the left patella as well as
an injury to his left foot. On the afternoon of October 28, 2010,
less than two days after the first fall, [Appellant] fell on his left
arm, fracturing his elbow. [Appellant] is not competent to testify
as to the cause of his own injuries, there are no witnesses to the
circumstances that caused [Appellant’s] injuries, and no facts or
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1
We note that Appellant has also erroneously appealed from the order
denying his motion for reconsideration. He then filed with this Court an
Application for Consolidation, which we granted by per curiam order on June
8, 2015. It is well-settled that “the refusal of a trial court to reconsider,
rehear, or permit reargument of a final decree is not reviewable on appeal.”
Provident National Bank v. Rooklin, 378 A.2d 893, 897 (Pa. Super.
1977). Accordingly, we will address only the appeal from the order granting
summary judgment.
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records substantiating what negligent conduct, if any, by or on
behalf of [Appellee] contributed to [Appellant’s] injuries.
Trial Court Opinion (TCO), 5/22/15, at 1-2 (unpaginated) (citations to record
omitted).
Appellant instituted the underlying action on October 25, 2012, by Writ
of Summons. On January 10, 2013, Appellant filed a complaint and
certificate of merit, in which he alleged negligence on the part of Appellee
and sought damages for the alleged injuries he sustained while admitted as
an in-patient at WPIC. Appellant’s Brief at 7. Appellee filed preliminary
objections, followed by an answer and new matter, asserting immunity
based on the MHPA. After a period of discovery, a jury trial was scheduled
for March 13, 2015. On March 6, 2015, Appellee filed a motion for summary
judgment, which was granted by the trial court on April 13, 2015. Appellant
timely filed a motion for reconsideration. The trial court denied Appellant’s
motion on April 27, 2015, and on May 11, 2015, he filed a notice of appeal.
Herein, Appellant raises the following issues for our review:
I. Whether the lower court erred in granting [Appellee’s]
motion for summary judgment and denying the motion for
reconsideration where there were sufficient facts
developed in the record which would allow a jury to find
that [Appellee’s] psychiatric institution acted with gross
negligence or willful misconduct in the care and treatment
provided to [] Appellant resulting in his injuries and
damages?
II. Whether the report of Appellant’s expert witness sets forth
within medical certainty a prima facie cause of action
against [Appellee] for gross negligence?
III. Whether the lower court erred in granting summary
judgment and denying Appellant’s motion for
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reconsideration where a jury based upon the evidence and
the report of Appellant’s expert could find that the actions
of [Appellee] caused the harm suffered by Appellant in
accordance with Hamil v. Bashline, 392 A.2d 1280, 481
Pa. 256 (Pa. 1978)?
IV. Whether the lower court erred in denying Appellant’s
motion for reconsideration of summary judgment where
evidence available subsequent to the argument on
[Appellee’s] motion showed that [Appellee’s] policy and
practice of destroying staff notes concerning what
happened over each twenty-four hour period effectively
destroyed evidence that [] Appellant could have used to
reconstruct the incident and its causation which should
have entitled [] Appellant to an adverse inference
instruction to the jury?
Appellant’s Brief at 5-6 (unnecessary capitalization omitted).
Our standard of review with respect to a trial court’s decision to grant
or deny a motion for summary judgment is well-settled:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
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 it bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will 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.
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Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations
omitted).
Preliminarily, we note that the MHPA provides limited protection from
civil and criminal liability to mental health personnel and their employees in
rendering treatment. Farago v. Sacred Heart General Hospital, 562
A.2d 300, 304 (Pa. 1989). Specifically, Section 7114 provides immunity as
follows:
(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 decision or for any of its
consequences.
50 Pa.C.S. § 7114(a).
Our Supreme Court has determined that the immunity provided
by the MHPA extends to institutions, as well as natural persons,
that provide care to mentally ill patients. Farago …, 562 A.2d
[at] 303 []. Additionally, our Supreme Court has interpreted §
7114(a) to include not only treatment decisions, but also, “‘care
and other services that supplement treatment’ in order to
promote the recovery of the patient from mental illness.” Allen
v. Montgomery Hospital, 548 Pa. 299, 696 A.2d 1175, 1179
(1997).
Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525 (Pa.
Super. 2003). As a hospital that provides psychiatric care, we conclude that
the MHPA most certainly applies to Appellee in this case. “Simply stated,
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Appellant must prove willful misconduct or gross negligence to throw off the
blanket of limited immunity which protects [Appellee]….” Albright v.
Abington Memorial Hosp., 696 A.2d 1159, 1164 (Pa. 1997).
Here, Appellant does not dispute the protection provided to Appellee
by the MHPA, but rather asserts that the trial court erred in finding, as a
matter of law, that Appellant failed to establish gross negligence or willful
misconduct. Appellant’s Brief at 9. In Bloom v. Dubois Regional Medical
Center, 597 A.2d 671 (Pa. Super. 1978), this Court arrived at a definition of
gross negligence for purposes of the MHPA. This definition was later
adopted by our Supreme Court in Albright:
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.
Albright, 696 A.2d at 1164 (quoting Bloom, 597 A.2d at 679). “Willful
misconduct is conduct of such a nature that the actor desired to bring about
the result that followed or at least was aware that it was substantially
certain to follow.” Dudley v. USC Corp., 606 A.2d 916, 921-922 (Pa.
Super. 1992).
In the present case, Appellant avers that the evidence establishes
gross negligence on the part of Appellee for: 1) failing to protect Appellant;
2) inflicting suffering on Appellant through delay in treatment; and 3) failing
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to supervise Appellant following his knee injury. Appellant’s Brief at 12-19.
Appellant further avers that this matter should have been “determined by a
jury and not as a matter of law.” Id. at 12.
First, we note that we addressed the very issue of whether the jury
has the sole right to determine gross negligence in Downey:
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.
…
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 Act of any meaning and unfairly subject such
employees and facilities to protracted and expensive litigation.
Downey, 817 A.2d at 525-526 (quoting Albright, 696 A.2d at 1164-65).
In our review of the trial court’s conclusion that no reasonable jury could
find gross negligence based on the evidence presented, we remain mindful
that Appellee’s behavior must be determined to be flagrant and grossly
deviating from the ordinary standard of care. See Downey, 817 A.2d at
526.
Appellant asserts that during his course of stay at WPIC, he was
involved in numerous altercations with other patients and that Appellee did
nothing to protect him. Appellant’s Brief at 13. However, Appellant
acknowledges that Appellee transferred an abusive roommate to another
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room. Moreover, as we gleaned from the parties’ briefs and our review of
the record, Appellant had an individualized treatment plan, was regularly
monitored, and was examined daily by Dr. Russell M. Farr (“Dr. Farr”), the
staff psychiatrist. He participated in group activities, which took place in an
activity room with staff present, and spent time in the common lounge area
located in front of the nurse’s station.
Appellant further claims that Appellee was grossly negligent in
delaying treatment of his knee and by failing to supervise him following his
injury. Appellant’s Brief at 17-18. More specifically, Appellant states that he
was seen by Lori Lapina, P.A., at 3:00 p.m. on October, 26, 2010 for his
knee injury. Appellant asserts that because of his limited mental capacity
and verbal communication skills, he was unable to explain what happened.
“He could only say that his knee ‘hurts a lot’ and he had difficulty walking.
The P.A. noted an unsteady gait, unlike in the morning, and found swelling
with a loss of bony landmarks in the left knee with bruising and warmth in
the area of the knee. An x-ray of the knee was ordered at the same time
which was approved by Dr. Farr.” Id. at 14. Appellant baldly asserts that
after injuring his knee, Appellee made no provisions for his comfort and
safety and concludes that Appellee’s “failure to assess and provide proper
supervision of [Appellant] and others led to the injuries which began on
October 26th.” Id. at 16.
The record belies Appellant’s assertion that Appellee was grossly
negligent in delaying treatment of his knee. It is uncontradicted that
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Appellant was examined at 3:00 p.m. on the date of the alleged incident.
An x-ray was ordered during said examination and was then conducted at
8:28 p.m. that same night. Dr. Farr, examined Appellant the next morning
at approximately 8:30 a.m. At 12:20 p.m. on October 27, 2010, a
consultation with orthopedics was ordered. Later that same day,
orthopedics casted Appellant’s leg. As to the care of Appellant following his
knee injury, we gleaned from the record that Appellant was using a walker
and that the nursing staff encouraged Appellant to remain off his feet and
placed him on “level 2” fall precautions, which is Appellee’s highest level of
fall precaution. Appellant was clearly not “ignored” after his injury.
As delineated by the definition set forth above, gross negligence refers
to conduct that goes well beyond ordinary negligence, carelessness,
inadvertence, laxity or indifference. Here, Appellant has failed to establish
any facts whatsoever to support his allegations that Appellee acted in a
flagrant manner and grossly deviated from the standard of care. Thus, we
conclude that Appellant’s claims in this regard are meritless.
In further support of our conclusion that the facts in the present case
do not substantiate a finding of gross negligence, we look to this Court’s
decision in Downey. There, a mentally ill patient was admitted to a medical
center where it was determined that she required supervision of her daily
living activities, including bathing. Downey, 817 A.2d at 522. The medical
center was sued by the patient’s estate after she drowned as a result of the
center’s failure to directly supervise her while she was bathing. Id. This
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Court held that “the alleged failure to supervise the decedent while bathing
constituted nothing more than ordinary ‘carelessness, inadvertence, laxity or
indifference.’” Id. at 526. In examining the record, the Downey Court
noted that at no point did the expert report state what standard of care or
procedures or policies were ignored or violated by the staff. Id. Moreover,
a thorough review of the record led us to conclude that: “[T]he Decedent’s
death, while unfortunate, was accidental. There was no indication of gross
negligence … [a]t most, their failure to supervise Downey for the entire
period of bathing constituted ordinary carelessness, inadvertence, laxity or
indifference which fails to give rise to a cause of action under the MHPA.”
Id. at 527 (emphasis added).
Here, Appellant has failed to establish ordinary negligence,2 let alone
gross negligence, as he does not show any causal connection between
Appellee’s actions and his injuries. Based on our decision in Downey, even
if Appellant were able to prove that his injuries were a direct result of
Appellee’s failure to properly supervise him, that would at most give rise to a
finding of ordinary negligence. See also Albright, 696 A.2d at 1159
(applying immunity under the MHPA and holding that there was no gross
negligence on the part of the hospital where a patient receiving outpatient
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2
“Negligence is established by proving the following four elements: (1) a
duty or obligation recognized by law; (2) a breach of that duty; (3) a causal
connection between the conduct and the resulting injury; and (4) actual
damages.” Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005).
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care set fire to her home as a result of her mental health issues, and the
hospital was aware, prior to the incident, that the patient had not been
taking her medication, had missed her recent appointments, and that her
mental condition was deteriorating, but failed to have the patient
committed); Farago, 562 A.2d at 300 (affirming a finding that the MHPA
immunity applied and holding that plaintiff failed to establish gross
negligence where plaintiff claimed that she was sexually assaulted by
another patient as a result of the hospital’s failure to adequately supervise
and protect her).
While it is unfortunate that Appellant sustained the two injuries
described herein, he has failed to establish any facts whatsoever to support
his allegations that his injuries were caused by a flagrant and gross deviation
from the standard of care. Accordingly, we discern no abuse of discretion in
the trial court’s finding that Appellant has failed to establish gross
negligence.
Next, Appellant falsely equates corporate negligence with gross
negligence and asserts a claim of corporate negligence against Appellee for
its alleged lack of care for Appellant while residing as an in-patient in its
facility. Appellant’s Brief at 19. “Corporate negligence is a doctrine under
which the hospital is liable if it fails to uphold the proper standard of care
owed the patient, which is to ensure the patient’s safety and well-being
while at the hospital.” Thompson v. Nason Hospital, 591 A.2d 703, 707
(Pa. 1991). The Thompson Court adopted the doctrine of corporate
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negligence as a theory of hospital liability and noted “that for a hospital to
be charged with negligence, it is necessary to show that the hospital had
actual or constructive knowledge of the defect of procedures which created
the harm.” Id. at 708. “Furthermore, the hospital’s negligence must have
been a substantial factor in bringing about the harm to the injured party.”
Id.
Appellant relies on the expert testimony of James R. Merikangas, M.D.,
a renowned psychiatrist, in support of his claim of corporate negligence.3
Appellant argues that the expert report of Dr. Merikangas is sufficient to
support a prima facie case for gross negligence, as it establishes that
Appellee violated three of the corporate duties as set forth in the
Thompson case. Appellant’s Brief at 21. However, we previously
acknowledged an important distinction between Thompson and the present
case. “In Thompson, the Supreme Court did not consider the difference
between negligence and gross negligence. Instead, the Court only needed
to determine if material facts existed such that the hospital could be found
negligent.” Potts v. Step By Step, Inc., 26 A.3d 1115, 1120 (Pa. Super.
2011). Thus, we concluded “it is problematic to rely on Thompson for the
proposition that the acts in that case could not qualify as gross negligence.”
Id. In light of our conclusion herein that absent the finding of gross
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3
See Expert Report of James R. Merikangas, M.D., attached as Exhibit “D”
to Appellee’s Motion for Summary Judgment.
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negligence, Appellee is subject to the immunity provided under the MHPA,
we deem Appellant’s reliance on Thompson misguided and this issue
without merit.
In his third issue, Appellant avers that the trial court erred in granting
summary judgment and denying his motion for reconsideration where a
jury, based on the evidence of record and the expert report of Dr.
Merikangas, could have found that the actions of Appellee caused the harm
Appellant suffered. Appellant’s Brief at 21. Appellant mistakenly applies
Section 323(a) of the Restatement (Second) of Torts4 and alleges that
Appellee is liable under this section for the damages suffered by Appellant.
Appellant further argues that the Supreme Court’s decision in Hamil v.
Bashline, 392 A.2d 1280 (Pa. 1978) is controlling in this case. Again,
Appellant fails to take into account that Appellee is protected by immunity
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4
Section 323 provides:
§ 323. Negligent Performance of Undertaking to Render
Services.
One who undertakes, gratuitously or for consideration to render
services to another which he should recognize as necessary for
the protection of the other’s person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise care increases the risk of harm, or
(b) the harm is suffered because of the other’s reliance upon
the undertaking.
Restatement (Second) of Torts § 323 (1965).
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under the MHPA and, thus, cannot be held liable absent a finding of gross
negligence. Section 323(a) and the decision in Hamil are based merely on
a finding of ordinary negligence. Hence, this claim is also without merit.
Moreover, we note:
It is well settled in the law that except in rare situations … the
mere occurrence of an injury does not prove negligence and that
an admittedly negligent act does not necessarily entail liability;
rather even when it is established that the defendant breached
some duty of care owed the plaintiff, it is incumbent on a
plaintiff to establish a causal connection between defendant’s
conduct and the plaintiff’s injury. Stated another way, the
defendant’s conduct must be shown to have been the proximate
cause of plaintiff’s injury. Proximate cause is a term of art
denoting the point at which legal responsibility attaches for the
harm to another arising out of some act of defendant; and it
may be established by evidence that the defendant’s negligent
act or failure to act was a substantial factor in bringing about the
plaintiff’s harm. The defendant’s negligent conduct may not,
however, be found to be a substantial cause where the plaintiff’s
injury would have been sustained even in the absence of the
actor’s negligence.
Hamil, 392 A.2d at 1284 (citations omitted). After careful review, we agree
with the trial court’s finding that Appellant has failed to produce sufficient
facts to establish any causal connection whatsoever between Appellee’s
actions and Appellant’s injuries.
It is Appellant’s burden to establish causation through expert
testimony:
Normally a plaintiff may establish his case of causation with any
evidence, direct or circumstantial, which tends to show
defendant’s actions as the legal cause of his harm. Where,
however, the ultimate determinations lie beyond the knowledge
or expertise of the average layperson, expert testimony is
permitted (and sometimes required) to aid the jury in its
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understanding of the factors involved and the teaching of the
pertinent discipline with respect thereto. … [I]t is generally
acknowledged that the complexities of the human body place
questions as to the cause of pain or injury beyond the knowledge
of the average layperson. For a plaintiff to make out his cause
of action in such a case, therefore, the law requires that expert
medical testimony be employed. In addition to its bearing on
whether or not the defendant’s conduct was negligent, such
testimony is needed to establish that the injury in question did,
with a reasonable degree of medical certainty, stem from the
negligent act alleged.
Id. at 1285. The law provides that:
[E]xpert testimony is incompetent if it lacks an adequate basis in
fact. While an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not
competent evidence. This means that expert testimony cannot
be based solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence.
Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012).
Appellant produced only the expert testimony of Dr. Merikangas. In
his report, Dr. Merikangas summarized Appellant’s treatment plan and the
facts set forth herein regarding Appellant’s two injuries. Dr. Merikangas
concluded his report by opining that “[a]s a result of negligence and a
reckless disregard for his safety [Appellant] suffered not one, but two falls
resulting in injury, resulting in his condition and prospects to be substantially
worse as a result o[f] his hospitalization at WPIC.”5 However, Dr.
Merikangas failed to explain how Appellant fell, nor did he provide any
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5
Expert Report of Dr. Merikangas, attached as Exhibit “D” to Appellee’s
Motion for Summary Judgment, at 3.
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factual support for his conclusion that Appellee’s actions caused the injuries.
Thus, this expert report contained mere conjecture and failed to meet
Appellant’s burden of proof.
Finally, Appellant claims that Appellee’s policy and practice of
destroying staff notes concerning what happened over each twenty-four
hour period effectively destroyed evidence that Appellant could have used to
reconstruct each incident and its causation; thus, he was entitled to an
adverse inference instruction to the jury. Appellant’s Brief at 24. In
response, the trial court opined:
[Appellant’s] reliance upon these missing notes does not support
an adverse inference charge. There is no additional record
evidence regarding the nature of the notes, how they are
historically maintained, how they could have been properly
maintained, or how they might have been improperly disposed of
or destroyed in this case. There is nothing in the testimony
available in this case to support a suggestion that [Appellee], in
any way, uncharacteristically, improperly, or intentionally
handled or destroyed these notes. Of course, because they are
not available, we are without the benefit of [knowing] what
information is provided in the specific notes; but, more
importantly, the record does not reflect what type of information
is generically provided in these notes so as to permit even a
reasoned guess as to whether they might, or might not, be
meaningfully expected to speak to the question of whether
[Appellee] engaged in gross negligence and/or whether
[Appellee’s] conduct in any way caused or contributed to
[Appellant’s] injury.
TCO at 3 (unpaginated). We discern no abuse of discretion by the trial
court. Moreover, we note that the record includes daily Progress Notes
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signed by Dr. Farr, which appear to include a summary of the staff’s daily
notes regarding Appellant’s care and behavior.6
As Appellant failed to establish a genuine issue of material fact, we
conclude that the trial court did not commit an error of law or abuse its
discretion when it granted Appellee’s motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2016
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6
See Progress Notes, attached as Exhibit “A” to Appellee’s Motion for
Summary Judgment.
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