J.   A25009/16

                                    2017 PA Super 11

SUSAN M. MARTIN, AS                                  IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF                            PENNSYLVANIA
DAWN M. MARTIN, AND
SUSAN M. MARTIN, INDIVIDUALLY
AND IN HER OWN RIGHT,

                             Appellant

                        v.                                 No. 311 MDA 2016

HOLY SPIRIT HOSPITAL


                   Appeal from the Order Entered February 1, 2016,
                 in the Court of Common Pleas of Cumberland County
                              Civil Division at No. 13 -2097


BEFORE:      FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*


OPINION BY FORD ELLIOTT, P.J.E.:                          FILED JANUARY 17, 2017

        Susan M. Martin appeals from the order entered February 1, 2016,

sustaining defendant/appellee's preliminary objections in the nature of           a


demurrer         and   dismissing   appellant's   third   amended   complaint   with

prejudice. After careful review, we reverse.

        In   a   prior opinion sustaining appellee's preliminary objections to

appellant's first complaint, the trial court summarized the facts of this

matter as follows:

                       The pertinent facts, viewed in the light most
                 favorable to [appellant] as the non -moving party,
                 can be summarized as follows:        The decedent,

* Former Justice specially assigned to the Superior Court.
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                   Dawn M.    Martin, had a history of mental health
                   problems. On 17 April 2012, the decedent was
                   brought by ambulance to [appellee] Holy Spirit
                   Hospital's Emergency Department (ER) following a
                   suicide attempt. The decedent sought a voluntary
                   201[1] commitment and, as a result of a "psych
                   diversion" from another hospital, was transported to
                   [appellee]'s ER. She was placed in an exam room
                   upon arrival at 9:24 pm.      While in the ER, the
                   decedent had several encounters with hospital
                   personnel; she voiced her suicidal intent several
                   times during these encounters. The decedent was
                   not seen by a physician or the crisis intervention
                   team during her time in the ER before eloping from
                   the hospital.

                          At some point during her stay in the ER, the
                   decedent changed into a hospital gown and slippers.
                   At approximately 10:45 pm, the decedent left her
                   exam room. She walked past the ER charge nurse's
                   station and the ER discharge and billing desk to get
                   to the ER exit door; the decedent then passed
                   through two ER exit doors and entered the ER lobby.
                   Once in the lobby, the decedent proceeded past the
                   ER triage nurses' station to exit the hospital through
                   open sliding glass doors, still wearing her hospital
                   gown and socks. At no point did any member of
                   [appellee]'s staff intervene or question the decedent
                   as she made her exit. The decedent subsequently
                   walked onto the nearby US Highway State Route 15
                   where she was struck and killed by passing motor
                   vehicles.

                         The      Commonwealth         of   Pennsylvania's
                   Department of Health investigated the April 17th
                   incident and reported that the decedent was the
                   ninth mental health crisis patient to elope from the
                   ER without any crisis intervention evaluation in a
                   31/2 month   period.     [Appellee] was cited by the
                   Commonwealth for having violated regulations
                   involving patient safety and protection and was
                   issued a fine for [its] non -compliance.

1    50 P.S.   §   7201.

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Trial court opinion, 10/18/13 at 2 -3 (footnotes omitted).

           On February 1, 2016, appellee's        preliminary objections to appellant's

third amended complaint were sustained, and the complaint was dismissed

with prejudice.          The       trial court determined2 that the Mental Health

Procedures Act ( "MHPA "), 50 P.S. §§ 7101 -7503, applied to this case, and

therefore, appellant had to prove willful misconduct or gross negligence.

The trial court then determined that at most, appellant's allegations rose to

the level of ordinary       negligence.3        As such, appellee was entitled to the

benefit of the MHPA's limited immunity provision.                  This timely appeal

followed on February 22, 2016. On March 7, 2016, appellant was ordered to

file   a    concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b) within 21 days; appellant complied on March 24, 2016,

and the trial court filed      a   Rule 1925(a) opinion on April 25, 2016.

           Appellant has raised the following issues for this court's review:

                 A.    Whether the trial court committed an error of
                       law when it applied the heightened Standard of
                       the [MHPA] to the admission of decedent,
                       Dawn M. Martin to [appellee], Holy Spirit
                       Hospital on April 17, 2012?

                 B.    Whether the trial court committed an error of
                       law by dismissing, with prejudice, [appellant]'s
                       Third Amended Complaint at the Preliminary
                       Objection phase of litigation by determining

2    The issue was decided by           a   divided three -judge panel, with one judge
dissenting. (Docket #28.)

3    There was no allegation that appellee engaged in willful misconduct.

                                               -3-
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                   Appellant had not pled sufficient facts to show
                   gross negligence pursuant to the [MHPA]?

Appellant's brief at 5.

        The standard of review we apply when considering      a   trial court's order

sustaining preliminary objections   is   well settled:

             [O]ur standard of review of an order of the trial court
             overruling or granting preliminary objections is to
             determine whether the trial court committed an error
             of law. When considering the appropriateness of a
             ruling on preliminary objections, the appellate court
             must apply the same standard as the trial court.

             Preliminary objections in the nature of a demurrer
             test the legal sufficiency of the complaint. When
             considering preliminary objections, all material facts
             set forth in the challenged pleadings are admitted as
             true, as well as all inferences reasonably deducible
             therefrom. Preliminary objections which seek the
             dismissal of a cause of action should be sustained
             only in cases in which it is clear and free from doubt
             that the pleader will be unable to prove facts legally
             sufficient to establish the right to relief. If any doubt
             exists as to whether a demurrer should be sustained,
             it should be resolved in favor of overruling the
             preliminary objections.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh,            Inc.,    107 A.3d 114,

118 (Pa.Super. 2014).

             In 1976, the General Assembly enacted the MHPA to
             provide procedures and treatment for the mentally ill
             in this Commonwealth. The policy of the MHPA is set
             forth in Section 102, which provides, in pertinent
             part:

                   [I]t  the policy of the Commonwealth of
                          is
                   Pennsylvania to seek to assure the
                   availability of adequate treatment to
                   persons who are mentally ill, and it is the


                                         -4
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                        purpose of this act to establish
                        procedures whereby this policy can be
                        effected. The provisions of this act shall
                        be interpreted in conformity with the
                        principles of due process to make
                       voluntary   and involuntary treatment
                       available where the need is great and its
                       absence could result in serious harm to
                       the mentally ill person or to others.
                       Treatment on a voluntary basis shall be
                       preferred to involuntary treatment; and
                       in every case, the least restrictions
                       consistent with adequate treatment shall
                       be employed.

Allen   v.    Montgomery Hosp., 696 A.2d 1175, 1178 (Pa. 1997), quoting

50 P.S.   §   7102.

                        The immunity provision of the MHPA provides
                in   pertinent part as follows:

                        §     7114.      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,    ...  shall not be
                                  civilly or criminally liable for
                                  such decision or for any of its
                                  consequences.

                50 P.S.    7114(a). Under the MHPA, a "facility" is
                              §
               "any mental health establishment, hospital, clinic,
               institution, center, day care center, base service
               unit, community mental health center, or part
               thereof, that provides for the diagnosis, treatment,
               care or rehabilitation of mentally ill persons, whether


                                                -5
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             as outpatients or inpatients."       50 P.S. § 7103.
             "Treatment" is defined as "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.

Downey      v.    Crozer- Chester Med. Ctr., 817 A.2d 517, 524 (Pa.Super.
2003) (en banc), appeal denied, 842 A.2d 406 (Pa. 2004).

                 OurSupreme 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 v. Sacred
             Heart General Hospital, 522 Pa. 410, 562 A.2d
             300, 303 (1989). 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, 817 A.2d at 525.          See also Farago v. Sacred Heart Gen.

Hosp., 562 A.2d 300, 303 (Pa. 1989) ( "Unquestionably, the clear intent of

the General Assembly in enacting Section 114 of the MHPA was to provide

limited civil and criminal immunity to those individuals and institutions

charged with providing treatment to the mentally ill. ").

        First, we address appellant's contention that the immunity provisions

of the MHPA do not apply because appellee was not providing mental health

"treatment" to the decedent at the time of her injury and death. Appellant

argues that the decedent had not yet been evaluated by any physicians,

crisis intervention personnel, or mental health professionals while in the ER,


                                      -6
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and no decisions regarding her care or treatment were made while the

decedent was at appellee's facility. (Appellant's brief at 17.) The decedent

had not been admitted to the hospital and had not been examined by a

physician or psychiatrist in the ER.        (Id.   at 16.)    Appellant contends that

because the decedent was not receiving "inpatient treatment" while                          a


"resident" at the facility, the MHPA does not apply.              (Id., citing    50 P.S.

§    7103    ( "This   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. "Inpatient treatment"

shall include all treatment that requires full or part -time residence in                   a


facility. ").)

        Appellant relies primarily on this court's decision in Fogg              v.   Paoli

Mem'/ Hosp., 686 A.2d 1355 (Pa.Super. 1996), in which this court held that

the immunity provisions of the MHPA did not apply because the defendant -

hospital had not been "treating" the plaintiff- decedent, Edward H. Fogg, for

his mental illness at the time of his injury.         We find Fogg to be factually

distinguishable.        In that case, Mr. Fogg's treating psychiatrist arranged for

him to be admitted to the psychiatric wing of Paoli Memorial Hospital.                Id.   at

1356.       Mr. Fogg had a history of psychiatric problems including anxiety,

depression, and audio /visual hallucinations.         Id.     When Mr. Fogg and his

parents arrived at the ER, they were instructed to have           a   seat in the waiting

room.       Id.   Mr. Fogg's parents told the registrar      that their son was having



                                          -7
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hallucinations and had     a   bed reserved for his admission in the psychiatric

ward.    Id.   Mr. Fogg did not receive any medical     treatment and was not seen

by any medical personnel. Id. at 1356 -1357.

        Eventually, after repeated inquiries by Mr. Fogg's parents, the registrar

directed them to the hospital admissions desk.            Id.   at 1357.     The Foggs

proceeded down the hallway unescorted.           Id.   At the end of the hallway was

a    large window, facing west into the setting sun.         Id.   Mr. Fogg became

agitated and ran down the hallway towards the setting sun, crashing through

the window and falling two stories onto      a   concrete driveway.    Id.    Mr. Fogg

died the following day. Id.

        In finding that the hospital was not entitled to limited immunity under

the MHPA, this court emphasized that Mr. Fogg had not been seen by any

health -care professionals while in the ER:

               In this case the trial court correctly noted that
               Mr. Fogg was not yet being treated by Appellant 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 Mr. Fogg was at Appellant'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 cannot avail itself of the
               immunity protections of the MHPA.

Id.   at 1358; see also McNamara v. Schleifer Ambulance Serv., 556

A.2d 448 (Pa.Super. 1989) (ambulance service not entitled to immunity



                                        -8
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under Section 7114 of the MHPA where                    a   patient was injured when he

jumped out of the rear doors of          a   moving ambulance which was transferring

him to    a   state hospital to receive court -ordered involuntary treatment).

        Here, it is undisputed that the decedent was never evaluated by                    a


physician or     a    psychiatrist. She was never formally admitted to the hospital,

nor were any treatment decisions made on her behalf.                     Compare Farago,

562 A.2d at 304 (decision by hospital staff to allow                a   female patient, who

alleged she was raped by          a   male patient in the bathroom, to remain in the

open ward on one -hour watch rather than on closer supervision, was                        a


"treatment decision" protected by the immunity provisions of the MHPA                     in

the absence of willful misconduct or gross negligence). However, unlike the

plaintiff- decedent in Fogg, the decedent              in   this case was seen by trained

nursing       staff    and   some     degree    of     professional     medical   care   was

administered. In her third amended complaint, appellant alleged, in relevant

part:

                 20.     Between 9:29 p.m. and 9:43 p.m. []
                         Defendant's [ER] nurse, Danielle Velgos,
                         recorded Decedent's history of a suicide
                         attempt an hour earlier including details of the
                         police having stopped her from jumping out of
                         a second story window at home.


                 21.     Defendant's   medical     records  document
                         Decedent's complaint as "CRISIS; SUICIDAL."

                 22.    Defendant's ER staff        also recorded Decedent's
                        psychiatric history         of depression, anxiety,
                        suicidal attempts, as       well as her active suicidal
                        thoughts given her          responding "Yes" to the


                                               -9
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                      question:    "Do you currently have                  any
                      thoughts of hurting yourself or others ?"

              23.     At 9:45 p.m. [] Defendant's records note
                      "protocol initiated."

              24.     At 10:18 p.m. [] Decedent's street clothes
                      were removed and replaced with a blue paper
                      hospital gown and slippers.

              25.     At 10:20 p.m. [] Defendant's medical records
                      note, "pt still actively suicidal stating she
                      wishes they would have let her jump."

              27.     At 10:20 p.m. [] Defendant's medical records
                      note, "pt made previous statement to EDT."

              28.     At 10:35 p.m. [] Defendant's medical records
                      note, "pt given OJ, resting in bed w/o
                      complaints."

              29.     At 10:45 p.m. [] Defendant's medical records
                      note, "pt resting on bed" and the entry
                      continued to another page and further notes,
                      "con't: pt cooperative and appropriate with
                      staff, suicidal ideations not verbalized to RN
                      curtain open.         Still awaiting   physician
                      evaluation."

Plaintiff's   Third   Amended        Complaint,    8/19/15       at   ¶¶   20 -25,   27 -29

(punctuation corrected).

        Therefore, in contrast to Mr. Fogg, who did not interact with anyone at

the hospital other than the registrar, the decedent in this case was seen by

ER    nursing staff who documented her psychiatric history and her recent

suicide attempt.       The decedent was given         a   bed,    a   hospital gown and

slippers, and orange juice.          While appellant obviously disagrees with the

level of treatment provided, we cannot say that the decedent was not being


                                          - 10 -
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"treated" for purposes of the   MHPA, which includes diagnosis and evaluation

by any authorized person. See     Allen, 696 A.2d at 1179 (consistent with the
purposes of the MHPA, "treatment is given     a   broader meaning in the MHPA

to include medical care coincident to mental health care ").        For these

reasons, we agree with the trial court that appellee was entitled to invoke

the immunity provision of Section 7114 of the MHPA, unless its actions in

treating the decedent constituted willful misconduct or gross negligence.

        We now turn to appellant's second issue, in which she argues that the

third amended complaint adequately pled "gross negligence," as that term

has come to be defined under the MHPA, to permit further discovery.         We

agree.

             Our supreme court adopted this court's definition of
             gross negligence in Albright v. Abington Memorial
             Hosp., 548 Pa. 268, 696 A.2d 1159 (1997):

                   '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.'

             Id. at 278, 696   A.2d at 1164, quoting Bloom v.
             DuBois Regional Medical Center, 409 Pa.Super.
             83, 597 A.2d 671, 679 (1991).
J.   A25009/16


Walsh v. Borczon, 881 A.2d        1, 7 (Pa.Super.   2005).

               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.

Albright, 696 A.2d at 1164 -1165.
        With   regard to gross negligence, appellant leveled the following

allegations, in pertinent part:

               30.   Due to understaffing, Defendant's ER nurse,
                     who should have been checking on Decedent,
                     abandoned Decedent and left her completely
                     unattended in order to transfer another patient
                     to a floor elsewhere in the hospital.

               31.   No  replacement nurse or security guard of any
                     type was assigned by Defendant to watch or
                     care for Decedent in the interim and it was at
                     this time Decedent took advantage of the fact
                     she was not being supervised and eloped.

               32.   Video from Defendant Holy Spirit Hospital
                     reveals that at approximately 10:50 p.m. []
                     Decedent walked out of the [ER], passed [sic]
                     three nurses['] stations in a hospital gown and
                     slippers.

               33.   Decedent's exam room #4 was directly across
                     from, and in full view of, the ER charge nurse's
                     station - --a centralized nursing unit and
                     communications hub for nurses, physicians,
                     residents, unit secretaries, hospital aides and
                     other staff.




                                       - 12 -
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             34.   Not   a single nurse, physician, resident, unit
                   secretary, aide or hospital staff member
                   challenged, stopped, intervened, or questioned
                   Decedent as she walked past the charge
                   nurses' station while gripping her head with
                   both hands and proceeded to exit through a
                   first set of unlocked emergency room doors.

             35.   After Decedent passed the charge nurses'
                   station unchallenged, Decedent was next in
                   direct and open view of the ER discharge and
                   billing desk.

             36.   While still gripping her head with both of her
                   hands and wearing only a blue paper gown and
                   socks on her feet, Decedent opened the
                   unlocked ER exit door which lacked any badge
                   swipe or security alarm system that would
                   prevent the inappropriate departure of mental
                   crisis patients from the hospital's premises,
                   and walked out unnoticed to a small vestibule.

             37.   While still in full view of the ER discharge and
                   billing desk, Decedent opened a second
                   unlocked ER exit door, which lacked any badge
                   swipe or security alarm system that would
                   prevent the inappropriate departure of mental
                   crisis patients from the hospital's premises,
                   and walked out unnoticed into the ER lobby
                   still gripping her head with both of her hands
                   and wearing only a blue paper gown and socks
                   on her feet.

             38.   Not   a single nurse, physician, receptionist,
                   secretary, resident, billing clerk[,] security
                   guard or hospital staff member challenged,
                   stopped, intervened, or questioned Decedent
                   as she walked out of the unlocked emergency
                   room doors while still gripping her head with
                   both of her hands and wearing only the blue
                   paper gown and socks on her feet.

             39.   While in full view of the ER lobby, ER reception
                   area and ER triage nurses' station, Decedent


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                  walked out of the emergency          department
                  unnoticed through open sliding       glass doors
                  while still gripping her head with   both of her
                  hands and wearing only the blue      paper gown
                  and socks on her feet.

            40.   Not   a single nurse, physician, receptionist,
                  secretary, security guard or hospital staff
                  member challenged, stopped, intervened, or
                  questioned [decedent] as she walked out of
                  the ER while still gripping her head with both of
                  her hands and wearing only the blue paper
                  gown and socks on her feet.

            41.   Defendant's inside surveillance video cameras
                  reveal shocking footage of Decedent wearing a
                  hospital wrist ID band, a blue paper gown and
                  socks on her feet, gripping her pounding head
                  with both her hands (right hand gripping her
                  forehead and left hand gripping the back of her
                  head), walking past the three (3) separate
                  nurses' stations, opening two (2) sets of
                  unlocked doors, reaching the glass sliding front
                  doors of the emergency department and
                  walking out of the ER into the night.

            42.   Directly outside of Defendant Holy Spirit
                  Hospital's ER entrance[] were at least three (3)
                  exterior mounted surveillance cameras and
                  two (2) additional outside surveillance cameras
                  mounted on an adjacent hospital building at
                  210 Senate House.

            43.   At approximately 11:00 p.m., Harrisburg Police
                  were dispatched to a grisly scene on US 15
                  where Decedent was pronounced dead as a
                  result of a motor vehicle collision.

            44.   The Harrisburg Area Police Report concluded
                  the death was an apparent suicide and the
                  Cumberland County Coroner[']s Office ruled
                  the death a suicide.
J.   A25009/16

            45.    At 11:05 p.m. [] Defendant's medical records
                   note, "pt not in room when checked by RN,
                   security notified, staff and security searching
                   premises."

            46.    At 11:13 p.m. [] Defendant's medical records
                   note, "pt not on premises, east pennsboro
                   police notified of patient elopement."

            47.    Defendant's staff did not notice that Decedent
                   was gone until 11:05 p.m. and then waited
                   until 11:13 p.m. to notify police that their
                   patient was missing.

            48.    Based on the knowledge of her suicide attempt
                   and repeated, voiced intention to end her life,
                   Defendant had a duty to keep her safe.

            49.    Defendant made no attempt to move any
                   non -suicidal patients out of Defendant's psych
                   unit to make room for Decedent.

             50.   None     of the nurses who recorded that
                   Decedent remained actively suicidal had any
                   psychiatric ward experience or mental health
                   crisis training.

             51.   Decedent was placed in a regular open ER
                   room because the blocked off psychiatric unit
                   rooms (with locked doors, protected windows
                   and security) were fully occupied.

             52.   No 1:1   observation was ordered or provided.

             59.   Decedent was left unsupervised, was never
                   seen by any mental health care professional,
                   did not receive a psychiatric evaluation, was
                   not placed in a secure location, was not seen
                   by any ER physician, crisis intervention was
                   never called, she was not treated or medicated
                   and      was        left     completely    alone,
                   unsupervised - -- -all contrary to the hospital's
                   own policies,       and   in   violation of the
                   Professional Hospital Security Management


                                      - 15 -
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                   Regulations, Pennsylvania State Department
                   Health Codes, and multiple Federal Patient
                   Safety Regulations.

             60.   Decedent was kept waiting in exam room #4
                   for 11/2 hours without being seen by any
                   physician, medical student, resident or crisis
                   intervention staff.

             67.   An    investigation by the Commonwealth of
                   Pennsylvania's Department of Health exposed
                   that in the short 3 1/2 month interval between
                   January 1, 2012 and April 17, 2012, Decedent
                   was the hospital's ninth (9th) mental health
                   crisis patient who came to Defendant's [ER]
                   looking for help but was left in an unsecured
                   area, unsupervised and was allowed to elope
                   from the emergency room without any crisis
                   intervention evaluation.

             68.   Averment 67 is pled to prove Defendant had
                   notice that mental health patients eloped from
                   their facility on at least 8 occasions prior to
                   Decedent.

             69.   Despite Defendant's awareness of repeat
                   problems     existing   in    their   emergency
                   department concerning mentally ill patients
                   eloping out of the ER without crisis intervention
                   evaluations (at least 8 prior to Decedent's and
                   possibly more), no corrective action was taken
                   to protect the safety and well -being of future
                   mental health patients, specifically Decedent.

             72.   Defendant's ER staff consciously, with full
                   knowledge      of     potential     consequences,
                   outrageously disregarded the hospital's own
                   Quality Assurance        protocols,    Emergency
                   Department protocols, Crisis Management
                   protocols and Clinical Nurse Protocols that
                   were in effect at the time.

             73.   Defendant Holy Spirit Hospital's Clinical Nurse
                   Practice   protocols     entitled       "Suicide


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                     Precautions" which required that mental crisis
                     patients, such as Decedent, receive monitoring
                     with close 1:1 observation was breached.

Plaintiff's Third Amended Complaint, 8/19/15 at ¶¶ 30 -52, 59 -60, 67 -69, &

72 -73.

        Appellant alleged that appellee grossly deviated from the accepted

standard of mental -health care in failing to place the decedent in         a   secure

location, failing to provide nursing supervision to   a   suicidal patient, failing to

implement    a   "fail safe system" of preventing the elopement of mental- crisis

patients from the     ER   with door locks, alarms, badge -swipe systems, etc.,

failing to follow its own protocols for suicidal patients, failing to call crisis

intervention to evaluate the decedent, and failing to act upon security

surveillance footage showing the decedent eloping from the          ER.   (Id. at   pp.

12 -13, ¶ 84.)      In addition, appellant alleged that appellee knew it had          a


problem with mental crisis patients eloping from its facility and failed to take

any action to protect future patients such as the decedent.          (Id. at    pp. 13-

14, ¶¶ 85 -87.)

        We find this court's decision in   Bloom to   be instructive.     We briefly

summarized the facts of that case as follows:

             On October 24, 1986, plaintiff appellant Cindy Bloom
             was voluntarily admitted to the psychiatric unit of
             DuBois Regional Medical Center (the "Hospital ").
             The    next     evening,  Mrs.     Bloom's   husband
             (co- appellant) came to visit his wife. He found her
             hanging by the neck from shoestrings behind a
             bathroom door adjacent to her hospital room in an



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              evident suicide attempt.      Fortunately, Mrs. Bloom's
              attempt failed.

Bloom, 597 A.2d at 673.        Mr. and Mrs. Bloom brought a complaint alleging,

inter alla, failure   to adequately test, diagnose, and supervise Mrs. Bloom.

Id. at    673 -674.   This court found that the complaint "sufficiently pleaded

acts that could, upon further development of the facts and production of

evidence, be found by      a   jury to constitute gross negligence." Id. at 677
(footnote omitted).

              The complaint alleged that the defendants, who held
              themselves out as competent to provide psychiatric
              treatment to one in the position of Mrs. Bloom,
              completely failed to diagnose her mental condition
              and treat her in a manner that would protect her
              from serious physical harm. It further averred that
              upon admission the defendants were informed of
              Mrs. Bloom's mental disorder and nevertheless failed
              to take adequate precautions to assure her safety.
              These allegations encompass the potential of
              showing conduct on the part of the defendants that
              might be considered grossly negligent. Based on the
              complaint, it is not certain whether the plaintiffs can
              develop evidence that will demonstrate that the
              defendants' failure was flagrant enough to be
              characterized as a gross deviation from the
              applicable standard of care.

Id. at 679.
         Importantly, as   in the case   sub judice, this court   in   Bloom was
reviewing the trial court's grant of the defendants' preliminary objections,

before the plaintiffs had the opportunity to fully develop their case:

              We further note that the determination of whether
              an act or failure to act constitutes negligence, of any
              degree, in view of all the evidence has always been


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               particularly committed to determination by a jury. It
               is an issue that may be removed from consideration
               by a jury and decided as a matter of law only where
               the case is entirely free from doubt and there is no
               possibility that a reasonable jury could find
               negligence. In this case, the trial court not only
               prevented the issue of the proper characterization of
               the defendant's conduct from going to a jury, but
               foreclosed plaintiffs -appellants from moving past the
               pleading stage of their case. This was error. Thus,
               the dismissal of Dr. Fugate on immunity grounds at
               this stage of the case must be reversed.

Id. at 679 -680 (citations        and footnote omitted).           Similarly, here, appellant

claims that appellee failed to take adequate precautions to assure the

decedent's safety.       Appellant alleges that according to appellee's own

protocols,     the   decedent should           have     received    close    monitoring       with

1:1 observation.      (Plaintiff's Third Amended Complaint, 8/19/15 at                    ¶   73.)

The decedent waited        11/2       hours in the ER without being evaluated by                 a


physician, psychiatrist, or crisis intervention staff. (Id. at               ¶   60.) According

to appellant, the decedent was the ninth mental- crisis patient in the past

31/2   months to elope from the         ER.   (Id. at   ¶   67.) Yet, appellee failed to take

any measures to protect future mental- crisis patients such as installing door

locks and alarms.      (Id. at    ¶    71.) We determine that based on the facts pled

in     appellant's third amended complaint,             a   jury could find that appellee's
actions constituted gross negligence, as they could                         be interpreted      as

"flagrant, grossly deviating from the ordinary standard of care." Albright,

696 A.2d at 1164; see also Potts v. Step By Step,                       Inc.,     26 A.3d 1115

(Pa.Super. 2011) (where the complaint alleged that facility's staff members


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J.   A25009/16

ignored nurse's specific instructions to contact her immediately if the

decedent vomited or had problems holding down fluids, and no staff member

performed CPR and there was                 a   delay in contacting 9 -1 -1, the trial court

erred in granting judgment on the pleadings and the complaint sufficiently

pled    facts      that     a   jury could find           constituted    gross   negligence   or

incompetence).

        Appellee attempts to distinguish Bloom on the basis that the decedent

in   the instant case was             a   voluntary commitment.            (Appellee's brief at

31 -32.)       However, in Bloom, the patient was also              a   voluntary commitment.

Bloom, 597 A.2d at 673.                   In addition, appellee's characterization of the

decedent as        a   "voluntary" presentation, while perhaps technically accurate,

is a   distortion of the alleged facts.            As recounted above, according to the

complaint, the decedent attempted suicide and had to be pulled from the

second -story window by police.                   (Plaintiff's Third Amended Complaint,

8/19/15 at ¶¶          7 -8.)   EMS was dispatched and police           informed the decedent

that they intended to involuntarily commit her pursuant to Section 302.

50 P.S.    §   7302. (Id. at      ¶   11.) However, the decedent indicated she wanted

to go as       a   voluntary Section 201 commitment and would cooperate with

EMS.       (Id.)       In context, this can hardly be fairly characterized as                  a


"voluntary" presentation. The decedent was suicidal and was told she could

either go voluntarily or be involuntarily committed.




                                                 - 20 -
J.   A25009/16

           Similarly, appellee's contention, that as             a   "voluntary commitment," the

decedent "was free to leave on her own accord,"                          is   contradicted by the facts

as alleged by appellant.             Decedent presented at the hospital as                       a    mental -

crisis patient with      a   history of   a   recent suicide attempt. The medical records

documented her as "CRISIS; SUICIDAL."                           (Id. at       ¶   21.)    The decedent's

records noted, "protocol initiated," and her street clothes were removed.

(Id. at      ¶¶ 23 -24.)          According to appellant's complaint, appellee's own

protocols mandate close observation of mental- crisis patients. (Id. at                                ¶   73.)

Clearly, the decedent was not "free to leave," as though she arrived at the

ER    complaining of         a   scraped elbow.          This was    a    woman in serious mental

distress. Furthermore, if she were free to leave at any time, as suggested

by appellee, there would be no reason for hospital staff to alert the police

that   a   mental- crisis patient had "eloped."

           Both the trial court and appellee cite the MHPA's mandate to impose

the least         restrictive alternatives consistent with affording the patient

adequate treatment for his/her condition.                             50       P.S.      §§   7102,     7107.

Presumably, however, the "least restrictive alternative" does not include

allowing      a   mental- crisis patient with        a   recent history of         a   suicide attempt to

walk out of the        ER in     her socks and hospital gown while clutching her head

in   obvious distress. In fact, this          is   the gravamen of appellant's complaint.

           For these reasons,         we conclude that 1)                     appellee was       a     facility

providing "treatment" to the decedent,                   a   mentally ill patient, and, therefore,



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is   entitled to limited immunity under the MHPA; and 2) appellant's factual

allegations in the third amended complaint could, upon further development,

be found by a    jury to constitute gross negligence. Therefore, the trial court
erred in granting appellee's preliminary objections.     It   is   important to note

that this court     is   not holding that appellant's allegations conclusively

establish gross negligence as      a   matter of law; rather, the facts pled      in

appellant's third amended        complaint are sufficient to move past the

preliminary objections stage of the proceedings.

        Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 1/17/2017




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