Concurring and Dissenting.
¶ 1 I agree with the Majority’s conclusion that the Pennsylvania Mental Health Procedures Act applies in this ease. I further support the Majority’s application of the definition of the term “gross negligence” as set forth by our Supreme Court in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 88, 597 A.2d 671 (1991) and in Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159, 1164 (1997). I depart from the Majority in its conclusion that the facts as developed in this case, including the expert report of Dr. Blumberg, are unable to support a finding of gross negligence as a matter of law.
¶ 2 The Majority makes much of the fact that the expert classified Crozer’s action as gross negligence only in his supplemental report. They assert he made no effort to supplement the facts on which he based his opinion, but only sought to modify his opinion as to the degree of negligence. Majority opinion at 528. I perceive of no need for Dr. Blumberg to have supplemented the facts. The facts established that Appellant’s decedent required direct supervision of her daily living activities and assistance with bathing. Despite a history of a prior accident requiring medical care while bathing, the decedent’s bathing activities were not monitored and she drowned while an inpatient at Appellee’s facility. Dr. Blumberg in his report wrote:
Although the staff at the Crozer-Ches-ter Medical Center adequately diagnosed her condition and were attempting to treat her behavioral difficulties, it is quite clear, even from their own records, that Ms. Downey required direct supervision of all of her activities, including bathing and showering. Her tendency to be confused and out of control of her behavior, along with problems of dizziness, orthostasis and a prior history of seizures required that she be directly supervised at all times. Her prior history in March, 1995 of fracturing her ankle while bathing placed the hospital on even greater notice that she was physically incapable of safely handling even bathing. The hospital staffs failure to directly monitor Ms. Downey, in my opinion, directly led to her death by drowning.
This report recounts the facts supporting Crozer’s responsibility for the decedent’s death. The fact that the initial report was unaccompanied by the expert’s conclusion that Crozer’s conduct resulted in gross *530negligence is of no moment. The ultimate classification of a defendant’s conduct is not for the expert to conclude, but rather it is either a matter of law in a clear case or a question for a jury. The Majority’s statement that we “are unable to afford any weight to what appears to be an upward modification of [the expert’s] earlier professional opinion,” Majority opinion at 527, is inappropriate in that “we” are not in the position to afford “weight” to the expert’s opinion,, for that is a matter for the jury. A court is to take the question of negligence away from a jury only where the issue can be decided as a matter of law, where the case is entirely free from doubt and no reasonable jury could find gross negligence. Albright, 696 A.2d at 1165. On the facts of this case, I don’t believe that such action is warranted.
¶ 3 In Albright the court concluded that no reasonable jury could have found that the Hospital acted in a grossly negligent manner. Id. at 1167. In so ruling it contrasted its case to the facts present in Willett v. Evergreen Homes, Inc., et al., 407 Pa.Super. 141, 595 A.2d 164 (1991). In Willett the Superior Court noted in dicta that the trial court had denied summary judgment in favor of Evergreen Homes because “the institution knew of the decedent’s history of seizures, knew of the importance of monitoring decedent, and yet, left the decent unattended in the bathtub.” Id. at fn. 8. The Albright Court found the circumstances in Willett different than the ones present before it. It stated:
The decedent in Willett was an inpatient under the direct and immediate care, supervision and control of Evergreen Homes, here, Mrs. Albright was an outpatient living at home. Also, as the decedent in Willett had epilepsy, Evergreen Homes was aware of the immediate need to constantly monitor the decedent’s bathing activities, where here, the Hospital had no information on which to believe that Mrs. Albright was a danger to herself or others.
Id.
¶ 4 The facts as developed in this case show the decedent was an inpatient who needed to be constantly monitored including direct supervision while bathing. Crozer failed to perform this task resulting in decedent’s drowning death. I believe the Albright decision supports my conclusion that under these facts summary judgment was not appropriate and the question of whether Crozer acted in a grossly negligent fashion should be left for a jury to decide.