J-S03032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TYRONE GRANT                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RAMESH AGARWAL, M.D. AND                   :   No. 1077 WDA 2019
    UNIVERSITY OF PITTSBURGH                   :
    MEDICAL CENTER                             :

                 Appeal from the Order Entered June 10, 2019
      In the Court of Common Pleas of Blair County Civil Division at No(s):
                                 2018-2049


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                        FILED FEBRUARY 25, 2020

        Tyrone Grant (Grant) appeals pro se from the order denying his petition

to open the judgment of non pros entered against him and in favor of Ramesh

Agarwal, M.D. (Dr. Agarwal) and the University of Pittsburgh Medical Center

(UPMC). We affirm.

        We take the following factual background and procedural history from the

trial court’s August 14, 2019 opinion and our independent review of the certified

record.    Grant is incarcerated at the Greene State Correctional Institution in

Waynesburg, Pennsylvania. He filed a Complaint on July 18, 2018, related to

Dr. Agarwal’s performance of oral surgery on him at UPMC on August 10, 2016.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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After Grant was unable to serve the Complaint, he filed a Praecipe for

Reinstatement of the Complaint on November 5, 2018. He filed an Amended

Complaint on December 10, 2018, and a second Amended Complaint on March

5, 2019.

      The Amended Complaint averred that Dr. Agarwal performed an open

reduction of the right orbital floor fracture with an implant.    (See Amended

Complaint, at Paragraphs 7-8).     Grant asserts that the implant was to be a

titanium plate but that Dr. Agarwal implanted an internal fixation of Gelfoam

under general anesthesia instead. (See id. at Paragraph 8). He underwent a

subsequent surgery with Dr. Jenny Yea of UPMC to address the orbital floor “blow

out.” (Id. at Paragraphs 13-15).

      Based on the foregoing facts, Grant asserted eight counts against Dr.

Agarwal, three of which he withdrew. The remaining five counts included: (1)

Battery—Lack of Informed Consent regarding general anesthesia; (2) Battery—

Lack of consent regarding surgery of open reduction internal fixation of Gelfoam;

(3) Battery—Placing Grant under general anesthesia a second time; (4)

Misrepresentation regarding the nature of the surgery; and (5) Breach of

Contract. (See id. at Paragraphs 18-27). He maintains that because of Dr.

Agarwal’s actions, he suffered injuries including loss of consciousness,

permanent facial disfigurement, lid lag, eye infection, loss of smell and use of

nose, emotional distress, orbital tissue atrophy, increased double vision, loss of

sensation, significant exophthalmos, and permanent globe restriction of the right

eye. (See id. at Paragraph 17).

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        Neither the original Complaint nor the Amended Complaints contained a

certificate of merit pursuant to Pennsylvania Rule of Civil Procedure 1042.3.1

____________________________________________


1   Rule 1042.3 provides, in pertinent part:

        (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.

                                         *     *     *

        (d) The court, upon good cause shown, shall extend the time for
        filing a certificate of merit for a period not to exceed sixty days. A
        motion to extend the time for filing a certificate of merit must be
        filed by the thirtieth day after the filing of a notice of intention to
        enter judgment of non pros on a professional liability claim under
        Rule 1042.6(a) or on or before the expiration of the extended time
        where a court has granted a motion to extend the time to file a
        certificate of merit, whichever is greater. The filing of a motion to
        extend tolls the time period within which a certificate of merit must
        be filed until the court rules upon the motion.

Pa.R.C.P. 1042.3(a), (d).

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      On March 28, 2019, Dr. Agarwal and UPMC filed Preliminary Objections to

Grant’s Amended Complaint. On April 5, 2019, they filed a 30-Day Notice of

Intention to Enter Judgment of Non Pros on the basis that Grant failed to include

a certificate of merit pursuant to Rule 1042.3. In response, on April 25, 2019,

Grant filed a Motion Seeking Determination by the Court [of] the Necessity of

Filing a Certificate of Merit, arguing that his Amended Complaint asserted a claim

for medical battery, not medical malpractice, and, therefore, no certificate of

merit was required. Dr. Agarwal and UPMC filed a reply to the Motion and the

court held oral argument on May 8, 2019. On May 9, 2019, the court entered

an order denying Grant’s Motion and granting permission to Dr. Agarwal and

UPMC to enter the Judgment of Non Pros. Judgment of Non Pros was entered

on May 16, 2019.

      On May 17, 2019, Grant filed a Petition to Open Judgment of Non Pros in

which he agreed that he was required to file a certificate of merit pursuant to

Rule 1042.3, but maintained that he was not able to do so because he is a state

prisoner and his mailing privileges were suspended at the relevant time due to

Governor Wolfe’s lockdown on the Pennsylvania Department of Corrections

(DOC). (See Petition to Open Judgment of Non Pros, 5/17/19, at 1). On May

31, 2019, two weeks after the Judgment of non pros had been entered, he filed

a Certificate of Merit dated May 25, 2019, in which he certified that “expert

testimony of an appropriate licensed professional is unnecessary for prosecution

of the claim against [Dr. Agarwal].” (Certificate of Merit, 5/31/19, at 1). Dr.

Agarwal and UPMC filed a Reply and Brief in response to the Petition to Open on

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June 3, 2019. The court denied the Petition on June 10, 2019. Grant timely

appealed.2,   3   Both he and the court complied with Rule 1925. See Pa.R.A.P.

1925.

        On appeal, Grant argues that he was not required to file a certificate of

merit because his action is based on medical battery, not lack of informed

consent. (See Grant’s Brief, at 5) (page numbering proved). However, in his

Petition to Open, Grant expressly admitted that a certificate of merit was

required and maintained that he was unable to file one because the prison was

on lockdown during the relevant time-period. (See Petition to Open Judgment

of Non Pros, 5/17/19, at 1-2) (page numbering provided). “It is a fundamental

principle of appellate review that we will not reverse a judgment or decree on a

theory that was not presented to the trial court.” Pops PCE TT, LP v. R&R

____________________________________________


2 This Court issued a Rule to Show Cause to Grant for an explanation of whether
his appeal was timely filed because it was docketed on July 12, 2019, and the
certificate of service referenced the date of June 5, 2019, five days before the
trial court issued its order. Grant explained that he mistakenly wrote the June
date instead of July, and that, necessarily, he mailed the Notice of Appeal from
the prison at least two days before it was docketed on July 12, 2019. The
envelope accompanying the Notice of Appeal in the certified record contains the
date of June 10, 2019. Therefore, the Notice is deemed timely filed on that date.
See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019)
(“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”)
(citation omitted).

3 “Our standard of review regarding the denial of a petition to open a judgment
of non pros is whether the trial court abused its discretion.” Merlini ex rel.
Merlini v. Gallatzin Water Auth., 980 A.2d 502, 504 (Pa. 2004) (citation
omitted).



                                               -5-
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Restaurant Group, LLC, 208 A.3d 79, 87 (Pa. Super. 2019) (citation omitted).

Therefore, Grant’s issue is waived for our review.4

        Similarly, Grant’s     Rule 1925(b) Statement claims that the court

erroneously found that his excuse for not filing a certificate of merit (prison

lockdown) was unreasonable where he filed a different document during the

relevant time period. (See Rule 1925(b) Statement, 8/04/19). It is well-settled

that “[a]n appellant’s failure to include an issue in his 1925(b) statement waives

that issue for purposes of appellate review.” McKeeman v. Corestates Bank,

N.A., 751 A.2d 655, 658 (Pa. Super. 2000) (citation omitted); see Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

Therefore, this issue is waived for our review on this basis as well.

        Moreover, we briefly note that Grant’s issue would lack merit. Grant raised

the medical battery issue he presents here in his Motion Seeking Determination

by the Court to the Necessity of Filing a Certificate of Merit. (See Motion Seeking

____________________________________________


4   We recognize that Grant is proceeding pro se. However:

        While this court is willing to liberally construe materials filed by a pro
        se litigant, we note that [he] is not entitled to any particular
        advantage because []he lacks legal training. As our supreme court
        has explained, any layperson choosing to represent [himself] in a
        legal proceeding must, to some reasonable extent, assume the risk
        that [his] lack of expertise and legal training will prove [his] undoing.

Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006)
(citation omitted).



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Determination by the Court to the Necessity of Filing a Certificate of Merit,

4/25/19, at 1, Paragraphs 7, 8). He is claiming that it is not necessary because

it sounds in “medical battery”5 and not “medical malpractice.”

        In Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005), we said

that:

        A medical malpractice claim is distinguished by two defining
        characteristics. First, medical malpractice can occur only within the
        course of a professional relationship. Second, claims of medical
        malpractice necessarily raise questions involving medical judgment.
        Claims of ordinary negligence by contrast, raise issues that are
        within the common knowledge and experience of the factfinder.
        Therefore, a court must ask two fundamental questions in
        determining whether a claim sounds in ordinary negligence or
        medical malpractice: (1) whether the claim pertains to an action
____________________________________________


5   “Medical Battery” arises out of the informed consent doctrine. It:

        [R]equires physicians to provide patients with “material information
        necessary to determine whether to proceed with the surgical or
        operative procedure or to remain in the present condition.” Sinclair
        by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137, 1140 (1993).
        We have on several occasions defined the nature of this “material
        information”. We have stated that the information provided by a
        physician must give the patient “a true understanding of the nature
        of the operation to be performed, the seriousness of it, the organs
        of the body involved, the disease or incapacity sought to be cured,
        and the possible results.” Gray v. Grunnagle, 423 Pa. 144, 223
        A.2d 663, 674 (1966). Thus, a physician must “advise the patient
        of those material facts, risks, complications and alternatives to
        surgery that a reasonable person in the patient’s situation would
        consider significant in deciding whether to have the operation.”
        Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331, 334 (1992). A claim
        that a physician failed to obtain the patient’s informed consent
        sounds in battery. Id.; see also Morgan v. MacPhail, 550 Pa.
        202, 704 A.2d 617 (1997).

Duttry v. Patterson, 565 Pa. 130, 134–35, 771 A.2d 1255, 1258 (2001).
(footnote omitted).

                                               -7-
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      that occurred within the course of a professional relationship; and
      (2) whether the claim raises questions of medical judgment beyond
      the realm of common knowledge and experience. If both of these
      questions are answered in the affirmative, the action is subject to
      the procedural and substantive requirements that govern medical
      malpractice actions.

      In this case, the answer to both of those “fundamental questions”

determines that this is a medical malpractice action. Grant’s claim arose out of

a “professional relationship” in that he sought medical treatment for a right

orbital floor fracture and it raises a “claim [that] involves a question of medical

judgment” in that his central claim is that Dr. Agarwal treated him by implanting

an internal fixation of Gelfoam rather than a titanium plate. Because his claim

was a medical malpractice claim, it is subject to the procedural requirements of

medical malpractice actions, specifically, the filing of a certificate of merit as

required by Rule 1042.3. Because Grant failed to do so, the trial court properly

dismissed his action.

      Moreover, in denying Grant’s Motion, the trial court explained that the

record reflects that Grant consented to the surgery performed by Dr. Agarwal,

an open reduction of the right orbital floor fracture with implant, and Dr. Agarwal

advised him of the risks associated therewith.        (See Trial Court Opinion,

5/09/19, at 2-3) (page numbering provided); (Amended Complaint, at Exhibit A

(Consent to Surgery Form), Exhibit B (Operative Note)). Because whether this

consent fully advised Grant of the associated risks and the possible alternatives




                                       -8-
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is also an issue that required expert testimony, lack of a certificate of merit

warranted dismissal.6, 7

       We conclude that the trial court properly exercises its discretion and affirm

its June 10, 2019 order denying Grant’s Petition to Open Judgment of Non Pros.

See Morrell Beer Distributors, Inc., supra at 25.

       Order affirmed.


____________________________________________


640 P.S. § 1303.504 of the Medical Care Availability and Reduction of Error Act
(MCARE) provides, in pertinent part:

       (a) Duty of physicians.—Except in emergencies, a physician owes
       a duty to a patient to obtain the informed consent of the patient or
       the patient’s authorized representative prior to conducting the
       following procedures:

              (1) Performing surgery, including the related administration of
              anesthesia.

                                         *      *    *

              (4) Inserting a surgical device or appliance.

                                         *      *    *

       (c) Expert testimony.—Expert testimony is required to determine
       whether the procedure constituted the type of procedure set forth in
       subsection (a) and to identify the risks of that procedure, the
       alternatives to that procedure and the risks of these alternatives.

40 P.S. § 1303.504(a)(1), (4), (c).

7 For sake of completeness, we also note that the trial court properly exercised
its discretion in denying Grant’s Petition to Open on the basis that he failed to
provide a reasonable excuse for his failure to file a certificate of merit. The
record reflects that although Grant argued that he was unable to file the
document during the relevant time, he filed his Motion Seeking Determination
by the Court to the Necessity of Filing a Certificate of Merit during this time
period.
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




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