J-S10033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENISE R. BRADLEY,             :               IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF :                    PENNSYLVANIA
WALTER BRADLEY, DECEASED       :
                               :
              Appellant        :
                               :
                               :
         v.                    :
                               :               No. 2915 EDA 2017
                               :
THOMAS JEFFERSON HEALTH SYSTEM :
AND HCR MANOR CARE HEALTH      :
SERVICES                       :

                Appeal from the Orders Entered August 4, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                        No(s): 04435 August Term 2015


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                             FILED JULY 17, 2018

        Appellant Denise R. Bradley, administrator of the estate of Walter

Bradley, deceased (Decedent), appeals from the orders granting summary

judgment in favor of Appellees Thomas Jefferson Health System (TJHS) and

Manor Care Health Services (MCHS). Appellant claims the trial court erred in

concluding that there was insufficient evidence of causation and that the

statute of limitations barred Appellant’s claims.1 We affirm in part, reverse in

part, and remand for further proceedings consistent with this memorandum.

        According to Appellant’s amended complaint, Decedent suffered a stroke

on March 17, 2013, and was admitted as an inpatient to “Jefferson,” a health

____________________________________________


1   We have reordered Appellant’s arguments for the purpose of this appeal.
J-S10033-18



care facility owned and operated by TJHS. At that time, Decedent suffered

from an ulcer on his right foot and a general lack of skin integrity. According

to Appellant, Jefferson failed to treat Decedent’s skin conditions properly,

which resulted in the deterioration of the ulcer on his foot and the formation

of at least two additional bedsores. Decedent was discharged from Jefferson

on April 10, 2013.

       That same day, Decedent was transferred from Jefferson to a facility

owned, operated, and maintained by MCHS. Appellant averred that at the

MCHS facility, Decedent failed to receive necessary care, which resulted in a

deterioration of his bedsores.

       On April 15, 2013, Decedent was transferred from the MCHS facility to

Fitzgerald Mercy Hospital (Fitzgerald) for surgery on the ulcer. At that point,

Decedent was suffering from stage four bedsores that affected his bone tissue.

       On April 24, 2013, Decedent was discharged from Fitzgerald and

readmitted to the MCHS facility. On May 23, 2013, Decedent was transferred

back to Fitzgerald due to suspected pneumonia and an infected sacral

decubitus ulcer.

       Decedent was subsequently discharged from Fitzgerald to his home.2

Fitzgerald reported that Decedent was clinically stable at the time of this

discharge and that his sacral ulcer needed no further intervention.

____________________________________________


2 Appellant did not specify when Decedent was discharged from Fitzgerald to
his home.


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J-S10033-18



        Decedent passed away on September 3, 2013.            A death certificate

indicated that the cause of death was “cerebral vascular accident” and

“hypertension.” MCHS’s Mot. Summ. J., 5/1/17, Ex. C. Appellant was granted

letters of administration on December 13, 2013.

        On September 2, 2015, Appellant commenced the instant action by writ

of summons. Appellant filed a complaint on October 15, 2015. On October

27, 2015, Appellant discontinued her action against Fitzgerald. On November

30, 2015, Appellant filed an amended complaint against TJHS and MCHS.

Appellant asserted claims of corporate negligence against each defendant

(counts 1 and 2), as well as a wrongful death action (count 3), and a survival

action (count 4).3
____________________________________________


3   In her amended complaint, Appellant alleged:

        17. The negligent defendant [TJHS] directly and proximately
        caused [Decedent] to suffer the following injuries and damages:

           a. delay in diagnosis of ulcer formation risk factors;

           b. formation of additional ulcers and bedsores;

           c. severe pain, suffering and discomfort;

           d. change in mental status;

           e. fear and anxiety;

           f. economic damages.

Am. Compl., 11/30/15, ¶17. Additionally, with respect to her survival action
Appellant asserted the following:




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       Appellees filed preliminary objections to Appellant’s amended complaint,

which the trial court overruled.        Appellees filed separate answers and new

matter raising various affirmative defenses.       At the close of pleadings and

discovery, Appellees filed motions for summary judgment seeking dismissal

of all claims against them with prejudice.

       Of relevance to this appeal, Appellees asserted that Appellant’s claims

were barred by the two-year statute of limitations pursuant to 42 Pa.C.S. §

5524. TJHS’s Mot. for Summ. J., 4/26/17, ¶ 43; MCHS’s Mot. for Summ. J. ¶

49, 58. Appellees also argued that the report of Appellant’s sole expert, John

N. Cardello, R.N., Esq., failed to establish that their conduct caused Decedent’s



____________________________________________


       39. As a direct and proximate result of the aforesaid acts of
       negligence, [Decedent] suffered and defendants are liable for the
       following damages:

          a. [D]ecedent’s pain and suffering between the time of his
          injuries and the time of his death;

          b. [D]ecedent’s total estimated future earning power less his
          estimated cost of personal maintenance;

          c. [D]ecedent’s loss of retirement and Social Security income;

          d. [D]ecedent’s other financial losses suffered as a result of his
          death;

          e. [D]ecedent’s loss of enjoyment of life.

Id. ¶ 39.




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J-S10033-18



death or increased the risk of harm or death.4 TJHS’s Mot. for Summ. J. ¶¶

75-76.; MCHS’s Mot. for Summ. J. ¶¶ 29-32. MCHS attached to its motion for

summary judgment a copy of Decedent’s death certificate that listed the cause

of death as cerebral vascular accident and hypertension.

       In response to TJHS’s summary judgment motion, Appellant asserted

that Cardello’s expert report contained sufficient opinions to create a factual

issue that the negligence with respect to the creation and exacerbation of the

bedsores caused death. Appellant claimed that portions of Cardello’s report

implicated an increased risk of harm while Decedent was receiving care at

Jefferson. Appellant did not address TJHS’s statute of limitations claim.

       In response to MCHS’s summary judgment motion, Appellant also

asserted that Cardello’s causation opinion was adequate for a factfinder to

determine the negligence with respect to bedsores as the cause death, and

cited Klein v. Aronchick, 85 A.3d 487 (Pa. Super. 2014).5 Appellant further

____________________________________________


4 Both Appellees raised additional defenses in their motions for summary
judgment. For example, TJHS asserted that (1) it did not provide any
treatment to Decedent and was not a proper defendant, and (2) Cardello failed
to state his opinion to a reasonable degree of medical certainty and relied on
speculation. MCHS also claimed that (1) it was an improperly named
defendant, (2) service was improper, and (3) Cardello failed to state his
opinions to the requisite degree of certainty. As discussed below, the trial
court did not rule on these alternative grounds for summary judgment.

5 Appellant did not seek to strike the death certificate attached to MCHS’s
motion or respond to the allegation that bedsores were not a listed cause of
death.




                                           -5-
J-S10033-18



claimed that she was entitled to file her claims within two years of Decedent’s

death based on section 5524(2), as well as 40 P.S. § 1303.513, the “statute

of repose” contained in the Medical Care Availability and Reduction of Error

Act (MCARE).6

       The trial court entered orders granting Appellees’ motions for summary

judgment on July 24, 2017, which the court amended on August 7, 2017. The

court concluded Appellant failed to proffer adequate evidence that Appellees’

negligence caused Decedent’s death.              The court further concluded that

Appellant’s claims were barred because Appellant failed to file her action

within two years of the bedsores. The court did not consider any other basis

for granting summary judgment in favor of Appellees.

       Appellant timely appealed on August 21, 2017. The trial court did not

order a Pa.R.A.P. 1925(b) statement, but filed an opinion suggesting that it

properly granted summary judgment in favor of Appellees based on the issues

of causation and the applicable statute of limitations.

       Appellant presents the following questions for review, which we have

reordered as follows:

       Whether the [trial c]ourt erred in granting summary judgment to
       the Appellees where [Appellant’s] medical expert provided a
       report that explained the causal relationship between the
       negligence of each of the Appellees and [D]ecedent’s death?


____________________________________________


6 The Medical Care Availability and Reduction of Error Act, 40 P.S. §§
1303.101-1303.910.


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      Whether the [trial c]ourt erred in granting summary judgment to
      the Appellees where the litigation against each of them was
      initiated within the applicable statute of repose of the MCARE Act?

Appellant’s Brief at 6.

      The standards governing our review of a trial court’s grant of summary

judgment are well settled.

      Summary judgment is appropriate, inter alia, where there is no
      genuine issue of any material fact as to a necessary element of
      the cause of action or defense that could be established by
      additional discovery. See Pa.R.C.P. No. 1035.2(1). In considering
      the merits of a motion for summary judgment, the record is
      viewed in the light most favorable to the non-moving party, and
      doubts as to the presence of a genuine issue of material fact are
      resolved against the moving party. The appellate review is for
      errors of law or abuse of discretion.

Wilson v. El-Daief, 964 A.2d 354, 359 (Pa. 2009). “Summary judgment

should be granted when the ‘party who will bear the burden of proof at trial

has failed to produce evidence of facts essential to the cause of action or

defense which in a jury trial would require the issues to be submitted to a

jury.’” Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395, 397 (Pa. Super.

2012) (citation omitted).

      With respect to claims of medical malpractice,

      a plaintiff must demonstrate the elements of negligence: a duty
      owed by the physician to the patient, a breach of that duty by the
      physician, that the breach was the proximate cause of the harm
      suffered, and the damages suffered were a direct result of harm.
      With all but the most self-evident medical malpractice actions
      there is also the added requirement that the plaintiff must provide
      a medical expert who will testify as to the elements of duty,
      breach, and causation.




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J-S10033-18



Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 154-55 (Pa. 2009) (citation

omitted).

      To establish the causation element in a professional negligence
      action, the plaintiff is not required to show that the defendant’s
      negligence was the actual “but for” cause of the plaintiff’s harm.
      Rather, under the “increased-risk-of-harm” standard, the plaintiff
      must introduce sufficient evidence that the defendant’s conduct
      increased the risk of the plaintiff’s harm.

Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007) (citation omitted)

(emphasis in original).

      Evidence regarding the increased risk of harm standard involves two

prongs. Klein, 85 A.3d at 492 (Pa. Super. 2014). First, the plaintiff’s expert

must be able testify to a reasonable degree of medical certainty that the

negligence could have caused the type of harm suffered. Id. Second, the

negligence must have been able to cause the actual harm. Id. In cases of

death, the increased risk of harm standard permits a case to proceed where

there was “any substantial possibility of survival and the defendant has

destroyed it.” Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978).

      It is also helpful to provide a brief overview of the distinctions between

wrongful death and survival actions.

      A survival claim and a wrongful death claim are separate and
      distinct even though they originate from the same wrongful act.
      [U]nder the Pennsylvania wrongful death statute, recovery passes
      to the limited group of beneficiaries defined in 42 Pa.C.S. §
      8301(b), “the spouse, children or parents of the deceased.”

         An action for wrongful death may be brought by the
         personal representative of those persons entitled to receive
         damages for wrongful death under the statute. . . .


                                       -8-
J-S10033-18


         Wrongful death damages are established for the purpose of
         compensating the spouse, children, or parents of a
         deceased for pecuniary loss they have sustained as a result
         of the death of the decedent. . . .

         A survival action, on the other hand, is brought by the
         administrator of the decedent’s estate in order to recover
         the loss to the estate of the decedent resulting from the tort.
         ...

         These two actions are designed to compensate two different
         categories of claimants[,] the spouse and/or members of
         the decedent’s family for wrongful death of the decedent,
         and the decedent herself through the legal person of her
         estate.

      Thus, in a wrongful death suit, claims are brought for and on
      behalf of the statutory beneficiaries to obtain compensation for
      their loss resulting from the deceased’s death. A wrongful death
      claim belongs exclusively to the decedent’s beneficiaries and is
      meant to cover pecuniary and emotional loss suffered by those
      beneficiaries as a result of the death. By contrast, a survival claim
      is simply the action the decedent could have brought for the
      injuries he suffered prior to his death and is generally for the
      benefit of the estate.

Rickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299, 305-06 (Pa. Super.

2017) (en banc) (citations omitted).

      Mindful of the foregoing principles, we proceed to consider Appellant’s

arguments that the trial court erred in granting summary judgment in favor

of Appellees.

      Appellant first claims that Cardello’s report provided sufficient bases for

a factfinder to find an increased risk of harm of death. Appellant emphasizes

that Cardello opined that “negligence was at root of [Decedent’s] downward

spiral.” Appellant’s Brief at 22. Additionally, Appellant contends that Cardello




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J-S10033-18



attached to his report literature indicating that pressure sores “present a

‘serious problem’ that can ‘lead to sepsis or death.’” Id. at 22-23.

       Following our review of the record, we agree with the trial court that

Cardello’s passing reference to a “downward spiral” failed to raise a genuine

issue of fact for the jury to decide. The causal connection from bedsores to

sepsis to death is not so self-evident that expert testimony was not required.

See Stimmler, 981 A.2d at 154–55. Similarly, Appellant cannot simply rely

on the literature indicating bedsores could result in sepsis and lead to death

as a substitute for a proper expert opinion that the negligent treatment of the

bedsores alleged herein increased the risk of sepsis and death. Thus, even

reviewing the record in a light most favorable to Appellant as the non-moving

party, we discern no abuse of discretion or error of law in the trial court’s

ruling.

       Because Appellant failed to adduce adequate allegations that the alleged

negligence caused death, we affirm the trial court’s ruling dismissing

Appellant’s wrongful death action set forth in Appellant’s amended complaint.

For the same reasons, we agree with the trial court that Appellant cannot

maintain a survival action based on the claims that Appellees caused or

increased the likelihood of Decedent’s death.

       Nevertheless, a survival action may include injuries Decedent suffered

short of death, for example, the bedsores themselves.7      See 42 Pa.C.S. §
____________________________________________


7See supra note 3 (indicating Appellant sought damages including pain and
suffering prior to death in her survival action).

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J-S10033-18



8302 (prescribing that “[a]ll causes of action . . . real or personal” survive the

death of the plaintiff); cf. Rickard, 173 A.3d at 306 (“a survival claim is

simply the action the decedent could have brought for the injuries he suffered

prior to his death and is generally for the benefit of the estate”). Therefore,

we must consider the trial court’s ruling that the statute of limitations barred

Appellant’s action.

      Appellant claims the MCARE Act created a separate statute of limitation

in section 1303.513(d) that preempts the general statute of limitations in

section 5524. Appellant’s Brief at 16-17. Appellant thus suggests that section

1303.513 permitted her to commence her action within two years of

Decedent’s death. Id. at 18.

      Appellant’s claim raises a question of statutory interpretation.        Our

review, therefore, is de novo and plenary. See Bulebosh v. Flannery, 91

A.3d 1241, 1243 (Pa. Super. 2014).

      Section 5524(2) provides that “[a]n action to recover damages for

injuries to the person or for the death of an individual caused by the wrongful

act or neglect or unlawful violence or negligence of another” must be

commenced within two years. 42 Pa.C.S. § 5524(2). “The time within which

a matter must be commenced” is generally computed “from the time the cause

of action accrued.” 42 Pa.C.S. § 5502(a). A cause of action generally accrues

when an injury is inflicted. Wilson, 964 A.2d at 361.

      Section 1303.513 states:




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      (a) General rule.--Except as provided in subsection (b) or (c),
      no cause of action asserting a medical professional liability claim
      may be commenced after seven years from the date of the alleged
      tort or breach of contract.

      (b) Injuries caused by foreign object.--If the injury is or was
      caused by a foreign object unintentionally left in the individual’s
      body, the limitation in subsection (a) shall not apply.

      (c) Injuries of minors.--No cause of action asserting a medical
      professional liability claim may be commenced by or on behalf of
      a minor after seven years from the date of the alleged tort or
      breach of contract or after the minor attains the age of 20 years,
      whichever is later.

      (d) Death or survival actions.--If the claim is brought under
      42 Pa.C.S. § 8301 (relating to death action) or 8302
      (relating to survival action), the action must be
      commenced within two years after the death in the absence
      of affirmative misrepresentation or fraudulent concealment of the
      cause of death.

      (e) Applicability.--No cause of action barred prior to the
      effective date of this section shall be revived by reason of the
      enactment of this section.

      (f) Definition.--For purposes of this section, a “minor” is an
      individual who has not yet attained the age of 18 years.

40 P.S. § 1303.513 (emphasis added). The MCARE Act defines a “medical

professional liability claim” as “[a]ny claim seeking the recovery of damages

or loss from a health care provider arising out of any tort or breach of contract

causing injury or death resulting from the furnishing of health care services

which were or should have been provided.” 40 P.S. § 1303.103.

      The Pennsylvania Supreme Court recently discussed the interaction

between section 5524(2) and section 1303.513 in Dubose v. Quinlan, 173




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A.3d 634 (Pa. 2017).8        The decedent in Dubose suffered from bedsores that

deteriorated during a 2005 stay at a nursing home. She developed additional

bedsores after her admission to a hospital. One of the sores became infected

in July of 2007.      The infection resulted in sepsis, and the decedent was

readmitted to the hospital in September 2007. One month later, the decedent

died from septic shock caused by multiple bedsores and dehydration.

       The administrator of the decedent’s estate in Dubose commenced an

action against the nursing home and the hospital in August of 2009 and

asserted claims of negligence and wrongful death. The administrator then

filed a second action against the nursing home and hospital administrators

asserting wrongful death and survival actions. The administrator of the estate

prevailed at trial.

       The appellants in Dubose—the nursing home and the hospital—

appealed, arguing, in relevant part, that the action was barred by the two-

year statute of limitations pursuant to section 5524(2).        The appellants

asserted that the trial court erred in relying on section 1303.513(d) to “revive

causes of action that the statute of limitations barred.” Dubose, 173 A.3d at

637-38.     This Court affirmed the trial court’s ruling on the statute of

limitations. Id. at 639 (discussing Dubose v. Quinlan, 125 A.3d 1231 (Pa.

Super. 2015)). The Pennsylvania Supreme Court granted allowance of appeal.



____________________________________________


8The Pennsylvania Supreme Court decided Dubose on November 22, 2017,
one month after the trial court authored its Rule 1925(a) opinion.

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      In   Dubose,    the   Pennsylvania       Supreme   Court   recognized   that

traditionally, “a statute of limitations creates ‘a time limit for suing in a civil

case, based on the date when the claim accrued.’ Measured by this standard,

a claim accrues in a personal-injury or property-damage action ‘when the

injury occurred or was discovered.’” Id. at 643-44 (citations omitted). With

respect to survival actions, the Court noted the traditional view that:

      [t]he statute [of limitations] will, of course, begin to run prior to
      death with respect to injuries that the afflicted individual should
      reasonably have “discovered” while alive, and, for this reason, it
      was held in [Anthony v. Koppers Co., 436 A.2d 181, 185 (Pa.
      1981)] that the survival statute begins to run, “at the latest,” at
      death. The explanation for this lies in the nature of the survival
      cause of action, for, as stated in Anthony, “the survival statutes
      do not create a new cause of action; they simply permit a personal
      representative to enforce a cause of action which has already
      accrued to the deceased before his death.” . . . [T]he “accrual”
      concept was expressly recognized in Anthony; hence, the statute
      of limitations was regarded as running, at the latest, from the time
      of death, unless it had earlier “accrued” through the fact that the
      victim knew, or should reasonably have known, of his injury.

                                       ***

      In the context of survival actions, which, as heretofore discussed,
      merely permit a personal representative to pursue a cause of
      action that had already accrued to a victim prior to death, the
      Pocono[ International Raceway v. Pocono Produce, Inc., . .
      . 468 A.2d 468 ( [Pa.] 1983),] rule causes the statute of
      limitations to commence to run on the date when the victim
      ascertained, or in the exercise of due diligence should have
      ascertained, the fact of a cause of action. In no case, however,
      can that date be later than the date of death; hence, the statute
      runs, at the latest, from death. Because death is a definitely
      ascertainable event, and survivors are put on notice that, if an
      action is to be brought, the cause of action must be determined
      through the extensive means available at the time of death, there
      is no basis to extend application of the discovery rule to permit


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      the filing of survival actions, or wrongful death actions, at times
      beyond the specified statutory period.

Id. at 645-46 (some citations and emphasis somitted).

      The Dubose Court, however, determined that section 1303.513(d)

constituted a statute of limitation that modified the traditional accrual date for

survival actions. See id. at 643, 648. The Court first reasoned that the text

of section 1303.513(d) mirrored the traditional statute of limitation because

it focused “not on the defendant’s conduct but the time within which the

plaintiff must sue.” Id. at 647. Moreover, unlike statutes of repose that were

not subject to equitable tolling, section 1303.513(d) contained an equitable

tolling provision based on “‘affirmative misrepresentation or fraudulent

concealment of the cause of death.’” Id. (quoting 40 P.S. § 1303.513(d)).

      The   Dubose     Court   next   determined    that   section   1303.513(d)

“prevail[ed] over the general statute of limitations for personal injuries actions

contained in [section 5524(2)].” Id. The Court noted that it was within the

General Assembly’s province to enact a “more specific statute of limitations

for medical professional liability that results in death.” Id. at 648.

      If the General Assembly wanted to set a statute of repose of two
      years from the date of decedent’s death, it could have provided,
      similar to Section 513(a), “no cause of action for wrongful death
      or survival may be commenced after two years from the death.”
      It did not; instead, it created a statute of limitations for medical
      professional liability cases resulting in death, which accrues at the
      time of decedent's death.

Id.

      The Court thus concluded that the intent of section 1303.513(d) was to

create a new statute of limitations for medical professional liability cases

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resulting in death and thereby modify the traditional common law principle

that the survival action accrued at the time of the injury. Id.       In the final

statement of its holding, the Dubose Court declared: “In conclusion, we hold

that [section 1303.513(d)] establishes a two-year statute of limitations for

medical professional liability cases in the form of wrongful death or survival

actions, which accrues at the time of the decedent’s death.” Id.

      The remaining question in this appeal is whether the statute of limitation

in section 1303.513(d) is limited to cases resulting in death.            Section

1303.513(d) does not distinguish between a survival action based on death or

an injury short of death. See 40 P.S. § 1303.513(d) (“[i]f the claim is brought

under . . . [section] 8302 (relating to survival action), the action must be

commenced within two years after the death”; see also 40 P.S. § 1303.103

(defining a medical professional liability claim as including claims for injury or

death). Therefore, although Dubose involved a survival claim resulting in

death, the plain language of section 1303.513(d) compels the conclusion that

the same statute of limitation be applied to all survival actions, including

actions involving injuries short of death. Accordingly, we are constrained to

conclude that Appellant had two years from the date of death to bring her

survival claims for injuries that did not result in death.

      Thus, we reverse the trial court’s ruling to the extent that Appellant’s

claim for injuries short of death were barred because Appellant failed to

commence her action within two years of the injuries. Because the court did

not address Appellees’ remaining arguments in support of their motions for

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summary judgment, we             vacate    the     orders   and remand for   further

consideration of Appellees’ motions with respect to Appellant’s remaining

survival claim for damages based on the bedsores.9

       Orders affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




____________________________________________


9 The trial court, following remand, may consider whether Appellant’s failure
to respond to TJHS’s motion for summary judgment constitutes waiver.

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