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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JERALD L. DITLOW, INDIVIDUALLY AND :            IN THE SUPERIOR COURT OF
ON BEHALF OF MARCY S. DITLOW,      :                 PENNSYLVANIA
DECEDENT,                          :
                     APPELLANT     :
               v.                  :
                                   :
CHELTENHAM YORK ROAD NURSING       :
AND REHABILITATION CENTER AND      :
ALBERT EINSTEIN MEDICAL CENTER     :
                                   :            No. 905 EDA 2016

              Appeal from the Order Entered February 22, 2016
            In the Court of Common Pleas of Philadelphia County
                      Civil Division at No(s): 140201708

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 29, 2017

     Appellant, Jerald L. Ditlow, appeals from the Order granting summary

judgment in favor of Cheltenham York Road Nursing and Rehabilitation

Center   (“Cheltenham”)   and   Albert   Einstein   Medical   Center   (“AEMC”)

(collectively, “Appellees”) in this medical negligence action.    After careful

review, we affirm.

     The trial court set forth the facts and procedural history as follows:

         In 2008, [Decedent] Mrs. Ditlow, was admitted to
         [Cheltenham] after having received a course of treatment
         at Abington Hospital for bilateral lower extremity
         contractions and recovery from hip surgery. [Appellant,
         Decedent’s husband] alleges that after [Decedent’s]
         admission to Cheltenham, Cheltenham’s negligence over
         the next several years caused [Decedent] to suffer from
         the following conditions, among others: “see through”
         bones, anemia, diminished lung function, punctured lung
         and persistent cough.
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         On February 9, 2012, [Decedent] was transported from
         Cheltenham to [AEMC], presenting with breathing
         problems. [Appellant] alleges that while [Decedent] was
         at Einstein, certain procedures should have been
         performed, but were not; other procedures were
         performed incompetently. On February 10, [Decedent]
         was intubated; [Appellant] alleges that [ ] [D]ecedent was
         intubated without her consent or that of her next of kin.
         [Appellant] alleges further that [Decedent] suffered a
         broken femur, that her esophagus and lung both were
         punctured, and that she suffered severe [edema] while in
         [AEMC’s] care.     [Decedent] died minutes after the
         ventilator was removed on February 16, 2012. [Decedent
         was 64 years old.] Her death certificate states that the
         cause of death was hypoxic respiratory failure due to, or as
         a consequence of, septic shock related to pneumonia.

Trial Ct. Op., 5/24/16, at 2-3 (citations to Appellant’s Amended Complaint

omitted).

      On February 18, 2014, Appellant commenced this matter by filing a

Writ of Summons, naming AEMC and Cheltenham as defendants. On April

17, 2014, Appellant filed a Motion for Leave to Conduct Pre-Complaint

Discovery in Lieu of Certificate of Merit, which the trial court denied on May

15, 2014.

      On May 29, 2014, Appellant filed a Complaint and Certificates of Merit

against Appellees, raising the following claims: (i) Medical Negligence; (ii)

Corporate Liability; (iii) Lack of Informed Consent; (iv) Negligent Infliction of

Emotional   Distress;   (v)   Fraudulent/Negligent     Misrepresentation;    (vi)

Wrongful Death Action; (vii) Survival Action; and (viii) Punitive Damages.

      On June 19, 2014, both Appellees filed separate Preliminary Objections

to Appellant’s Complaint. On August 12, 2014, the trial court sustained in


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part and overruled in part Appellees’ Preliminary Objections, dismissing

Appellant’s claim of Negligent Infliction of Emotional Distress with prejudice,

and Fraudulent/Negligent Misrepresentation Claims without prejudice.       The

court also granted Appellant leave to file an Amended Complaint addressing

Appellees’ objections to the Complaint’s lack of specificity.

      On August 22, 2014, Appellant filed an Amended Complaint, advancing

claims of: (i) Medical Negligence; (ii) Corporate Liability; (iii) Lack of

Informed Consent; (iv) Fraudulent/Negligent Misrepresentation; (v) Punitive

Damages; (vi) Wrongful Death; and (vii) Survival Action against Appellees.

      On September 10, 2014, AEMC filed an Answer and New Matter, to

which Appellant filed a Reply on October 1, 2014. On September 11, 2014,

Cheltenham filed Preliminary Objections to Appellant’s Amended Complaint.

      On October 8, 2014, the court struck Appellant’s Fraudulent/Negligent

Misrepresentation Claim against Cheltenham for failure to state a cause of

action.

      The parties concluded discovery on September 8, 2015, but Appellant

failed to file any expert reports.

      On October 30, 2015, and November 2, 2015, AEMC and Cheltenham,

respectively, filed Motions for Summary Judgment. Appellant filed Answers

to both Motions.

      Following a February 10, 2016 hearing, the trial court granted

Appellees’ Motions for Summary Judgment on February 22, 2016, and



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dismissed all claims against both Appellees.     Appellant timely appealed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises one issue for our review:

         Was an error of law committed when the [t]rial [c]ourt
         granted    [Appellees’]  Summary     Judgment      Motions
         preempting [Appellant] from proceeding to trial of the
         instant matter via application of res ipsa loquitur in
         conjunction with 231 Pa.C.S. § 1042(a)(3) [sic][.]

Appellant’s Brief at 15.

      Appellant argues that, because Decedent’s “deplorable condition is the

kind of condition [that] does not occur in the absence of negligence[,]” the

trial court erred in failing to apply the doctrine of res ipsa loquitur, which

would have relieved Appellant of the obligation to provide testimony of an

expert in order to make out a prima facie negligence claim.1 Id. at 20.

      Our Supreme Court has clarified our role in reviewing summary

judgment determinations as follows:

         . . . [A]n appellate court may reverse a grant of summary
         judgment if there has been an error of law or an abuse of
         discretion. But the issue as to whether there are no
         genuine issues as to any material fact presents a question
         of law, and therefore, on that question our standard of
         review is de novo. This means we need not defer to the
         determinations made by the lower tribunals. To the extent
         that this Court must resolve a question of law, we shall
         review the grant of summary judgment in the context of
         the entire record.


1
   Appellant does not challenge the portions of the trial court’s Orders
dismissing Appellant’s Fraudulent/Negligent Misrepresentation or Wrongful
Death claims, claim for Punitive Damages, or claim under the Survival Act.



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Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations and quotation omitted).

      A trial court may grant summary judgment “only in those cases where

the record clearly demonstrates that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.”

Id. (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2(1).

“When considering a motion for summary judgment, the trial court must

take all facts of record and reasonable inferences therefrom in a light most

favorable to the non-moving party.”    Summers, supra at 1159 (citation

omitted). “In so doing, the trial court must resolve all doubts as to the

existence of a genuine issue of material fact against the moving party, and,

thus, may only grant summary judgment where the right to such judgment

is clear and free from all doubt.” Id. (citation and internal quotation marks

omitted).

      For purposes of deciding a Motion for Summary Judgment, the record

includes the pleadings, depositions, answers to interrogatories, admissions,

and affidavits.   Bailets v. Pennsylvania Tpk. Comm’n, 123 A.3d 300,

3014 (Pa. 2015) (citing Pa.R.C.P. 1035.1(1), (2)). “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.”        Truax v.

Roulhac, 126 A.3d 991, 997 (Pa. Super. 2015), appeal denied, 129 A.3d

1244 (Pa. 2015) (citation and quotation omitted). “Further, failure of a non-



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moving party to adduce sufficient evidence on an issue essential to his case

and on which he bears the burden of proof establishes the entitlement of the

moving party to judgment as a matter of law.”      Id. (citation and internal

quotation marks omitted).    “If there is evidence that would allow a fact-

finder to render a verdict in favor of the non-moving party, then summary

judgment should be denied.” Id. (citation and quotation omitted).

      Where a plaintiff has raised claims of Medical Negligence, Corporate

Negligence, and Informed Consent, in order to make out a prima facie case,

he is required to present expert testimony. See Quinby v. Plumsteadville

Family Practice, 907 A.2d 1061, 1070-71 Pa. (2006). (explaining that, in a

medical malpractice action, a plaintiff must present a medical expert to

establish the applicable standard of care, the deviation from that standard,

causation, and the extent of the injury); Welsh v. Bulger, 698 A.2d 581,

585-86 (Pa. 1997) (noting that a corporate negligence claim requires an

expert to identify a defendant medical institution’s standard of care, and the

ways in which the defendant’s departure from those standards led to the

plaintiff’s injuries); Moure v. Raeuchle, 604 A.2d 1003, 1008 (Pa. 1992)

(holding that a lack of informed consent claim requires “expert information

as to the nature of the harm attendant to the procedure, and the probability

of that harm occurring.”).

      A medical malpractice plaintiff is relieved of his burden to provide a

medical expert who will testify only if he can prove “that he has been injured



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by a casualty of a sort that normally would not have occurred in the absence

of the defendant's negligence.” Quinby, 907 A.2d at 1071. The application

of this doctrine—res ipsa loquitur—is appropriate when

         (a) the event is of a kind which ordinarily does not occur in
         the absence of negligence;

         (b) other responsible causes, including the conduct of the
         plaintiff and third persons, are sufficiently eliminated by
         the evidence; and

         (c) the indicated negligence is within the scope of the
         defendant's duty to the plaintiff.

Id. (quoting Rest. (2d) Torts § 328(D)(1)).

      “It is the function of the court to determine whether the inference [of a

defendant’s negligence] may reasonably be drawn by the jury, or whether it

must necessarily be drawn.” Id. (quoting Rest. (2d) Torts § 328(D)(2)).

      In concluding that Appellant failed to make out a prima facie case, the

trial court noted the following:

         The record in this case is sparse. The court has before it
         the docket, prior orders, the amended complaint,
         [Appellees’] respective answers thereto, [Appellant’s]
         response to [AEMC’s] malpractice interrogatories, four
         defense expert reports and excerpts from the defense
         deposition taken of Leslie Ditlow, Esq., counsel for
         [Appellant] and daughter of [Appellant] and [D]ecedent.
         There are no admissions and there are no affidavits. There
         is no deposition testimony from any defense witness. The
         record contains no evidence that [Appellant]
         conducted any discovery.          Most important, the
         record contains no expert evidence in support of
         [Appellant’s] claims, and at oral argument,
         [Appellant’s] counsel made clear that one was not
         forthcoming.



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                                       ***

          As far as can be gleaned from [Appellant’s] own
          [A]mended [C]omplaint and his [A]nswers to [AEMC’s
          I]nterrogatories,    [Decedent]   presented     a   complex
          constellation of medical challenges.     They included bi-
          lateral lower extremity contractures and surgically repaired
          hip fracture, proper medications and/or physical therapy,
          depression, cardiac and blood pressure history, anemia,
          bone disease, scoliosis, a bone fracture with indications for
          amputation, respiratory ailments, pneumothorax, edema,
          esophageal and lung injuries and medical procedures such
          as defibrillation and intubation.

          [Appellees’] experts reported that upon [D]ecedent’s
          admission to Cheltenham in 2008, she was already
          suffering “depression, anxiety, hypercholesterolemia,
          hypertension,     bilateral   knee    contractures,    diffuse
          myopathy” and had been “non-ambulatory for greater than
          one year.” She had “restrictive lung disease, fractured
          femur, contractures, depressive disorder, hypertension,
          gastroesophageal      reflux,   scoliosis,  and    was     not
          ambulatory.     Upon her admission to [AEMC] she was
          diagnosed with “a past history of severe kyphoscoliosis,
          chronic obstructive lung disease and depression” and
          “hypercapnic respiratory failure,” tachycardia and atrial
          fibrillation. Her pulmonary problems upon admission to
          [AEMC] included “atrial fibrillation and atelectasis of her
          left bronchial tree.” As far as can be discerned from the
          record, the procedures that were performed on [Decedent]
          included     a   thoracentesis,   blood    transfusion     and
          intubation.”

Trial Ct. Op., 5/24/16, at 4-7 (footnotes and citations omitted) (emphasis

added).

      The trial court considered Appellees’ Motions for Summary Judgment

on Appellant’s Medical Negligence, Corporate Negligence, and Informed

Consent claims with Decedent’s complicated and extensive medical history.

It concluded as follows:


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         The record, then, shows that [D]ecedent suffered from an
         array of pulmonary, cardiac, and bone diseases when she
         came into [Appellees’] care.          Against this picture,
         [Appellant] failed to present any expert testimony of the
         respective standards of care [] in treating these
         aggregated conditions or any evidence showing how
         [Appellees’] conduct deviated from those standards.
         [Appellant’s] record, such as it is, consists of conclusory
         allegations of neglect, starvation and dehydration that are
         unsupported by evidence and are merely lay opinions;
         they are insufficient to sustain any prima facie case on
         medical negligence, corporate negligence, or informed
         consent that can be given to a jury.

Id. at 7 (citations omitted).

      With respect to Appellant’s claim that the doctrine of res ipsa loquitur

is applicable in this case, and that Appellant could proceed without an

expert, the trial court noted:

         it is plain from the complicated medical history and status
         of the decedent that res ipsa loquitur is an unavailable
         theory in this case. Toogood v. Rogal, 824 A.2d 1140,
         1150 (Pa. 2003) [(plurality)] (stating “[w]e reiterate that
         the degree of care and skill [of a medical professional] can
         only be proven by the testimony of experts” and that res
         ipsa loquitur is inapplicable where such care and skill is
         challenged).

Id. at 7-8.

      We agree with the trial court that, in light of the complex and

numerous medical problems Decedent presented to Appellees, the doctrine

of res ipsa loquitur is not applicable to this matter.    The court correctly

concluded that Appellant failed to satisfy the first and second prongs of the

test to determine the applicability of the doctrine i.e. that Appellant did not



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establish that Decedent could not have died absent any negligence on the

part of Appellees, and that Appellant did not sufficiently eliminate by the

evidence other responsible causes of Decedent’s death.

     Because    the    facts   rendered   the   doctrine   of   res   ipsa   loquitur

inapplicable, Appellant was required to provide expert testimony to establish

a prima facie case of Medical Negligence, Corporate Negligence, and lack of

Informed Consent. Appellant did not provide such testimony. Accordingly,

the trial court properly granted summary judgment in Appellees’ favor.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/29/2017




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