J-A20039-18

                                  2018 PA Super 359

    KATHRYN F. LEIGHT AND JOHN L.              :   IN THE SUPERIOR COURT OF
    LEIGHT, HER HUSBAND,                       :         PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                v.                             :
                                               :
                                               :
    UNIVERSITY OF PITTSBURGH                   :
    PHYSICIANS, UPMC, UNIVERSITY OF            :
    PITTSBURGH OF THE                          :
    COMMONWEALTH SYSTEM OF                     :
    HIGHER EDUCATION, SUSAN SHICK,             :
    AND PHILLIP L. CLARK,                      :
    ADMINISTRATOR OF THE ESTATE OF             :
    JOHN F. SHICK, DECEASED                    :      No. 1912 WDA 2017

               Appeal from the Order Entered December 15, 2017
               in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): No. GD12-9942

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                            FILED DECEMBER 31, 2018

       Kathryn F. Leight (“Kathryn”) and John L. Leight, her husband

(collectively “the Leights”), appeal from the Order dismissing with prejudice

all of their claims against UPMC and University of Pittsburgh of the

Commonwealth System of Higher Education (“Pitt”), thereby allowing the

Leights to file an appeal from the Order sustaining the Preliminary Objections

filed by Pitt and University of Pittsburgh Physicians (“UPP”), and dismissing

the Leights’ Mental Health Procedures Act (“MHPA”) claims. 1 We affirm.

____________________________________________


1 The Leights’ other claims against Susan Shick (“Susan”), John F. Shick’s
(“Shick”) mother, and Phillip L. Clark, Administrator of the Estate of John F.
J-A20039-18


       This appeal arises from the March 8, 2012 shooting incident, wherein

Shick killed one person and injured several others, including Kathryn, at

Western Psychiatric Institute and Clinic (“WPIC”). In the Leights’ Second and

Third Amended Complaints,2 they pleaded the following, in relevant part:

       28. … [A]t all times that each and every physician who was an
       employee, servant and/or agent of Defendants UPMC, UPP and/or
       Pitt provided medical services to Shick as described below, they
       and each of them had the ability to access all of Shick’s medical
       records documenting treatment provided by all physicians who
       were the agents, servants and/or employees of Defendants UPMC,
       UPP and/or Pitt.

       29. Unless otherwise stated below, Shick’s Pennsylvania treating
       physicians and their practices’ respective staff members and
       administrators were the agents, servants and/or employees of
       Defendants UPMC, UPP and/or Pitt at all times pertinent to this
       cause of action, and those physicians identified as resident
       physicians were the employees of Defendant Pitt.

       30. In 2007, [Kathryn] began and continued to perform the
       functions of the outpatient receptionist in the [WPIC] lobby. …

       49. On February 24, 2005, Shick first engaged in behaviors
       causing peace officers and physicians to believe that he was
       suffering from severe mental illness causing him to be an
       imminent threat of danger to himself or others, requiring his
       involuntary treatment in a psychiatric hospital, including the
       involuntary administration of antipsychotic medications. …
____________________________________________


Shick, deceased, were disposed of in prior Orders. We further note that while
UPMC had filed the Preliminary Objections at issue in this case with Pitt and
UPP, UPMC is not a party to this appeal. Indeed, the Leights filed a Notice of
Non-Participation, stating that Susan, Phillip L. Clark, and UPMC had no
interest in the outcome of this proceeding.

2In their Third Amended Complaint, the Leights incorporated the vast majority
of their averments in their Second Amended Complaint, and substituted or
added six averments. Thus, we will cite to both Complaints in addressing this
appeal.

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     51. On that date, Shick, then 24 years old, was brought to the St.
     Luke’s - Roosevelt Hospital (“St. Luke’s”) emergency room in
     handcuffs by emergency medical providers and members of the
     New York City Police Department (“NYPD”), where he was placed
     in restraints and medicated intramuscularly in the psychiatric
     emergency room due to his uncooperative and combative
     behaviors, including attempts to elope (run away) from the
     facility. …

     53. Involuntary [c]ourt[-]approved commitment and involuntary
     antipsychotic medication proceedings were initiated, and both
     were approved and began. …

     60. On April 27, 2005, the antipsychotic medication had improved
     Shick’s condition to the point that he was much less paranoid, was
     no longer an acute danger to himself or others, was stable for
     discharge, and Shick agreed to be followed by the Mobile Crisis
     Team at his home to ensure his apartment would be in livable
     condition, and to undergo further treatment at Metropolitan
     Center for Mental Health. …

     62. [On May 3, 2005,] Shick was again taken to St. Luke’s ER,
     where he was offered and spit out oral Risperdal, and he was again
     involuntarily committed and medicated intramuscularly, and the
     emergency room psychiatrist signed applications for his
     involuntary commitment and treatment, as he was a danger to
     himself and others. …

     85. … Susan and Shick became aware of his need to undergo
     ongoing psychiatric treatment, including an appropriate
     antipsychotic drug regimen, in order to control his schizophrenia
     and prevent him from being a danger to himself or others. …

     89. Shick was involuntarily committed to the New York-
     Presbyterian Cornell Medical Center [], where he remained under
     court[-]ordered involuntarily treatment, including involuntary
     antipsychotic medication administration, until June 10, 2008. …

     101. In April 2009, Shick was admitted to [the Chemistry Ph.D.
     program at Portland State University in Oregon] as a student and
     graduate teaching assistant for the Fall 2009 quarter, and moved
     to Portland. …


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J-A20039-18


     117. Shick was involuntarily treated, including involuntary
     administration of antipsychotic medications at [Providence
     Portland Medical Center] until February 10, 2010, when he was
     transferred for additional inpatient psychiatric care at Blue
     Mountain Recovery Center, a state mental institution located in
     Pendleton, Oregon. …

     120. Shick was discharged from Blue Mountain on May 12,
     2010, …. …

     138. On March 30, 2011, Shick was accepted into the [Duquesne
     University Doctoral] program [in the Department of Biological
     Sciences], and was granted a graduate teaching assistantship. …

     140. On June 23, 2011, Shick began to establish a patient-primary
     care physician relationship with UPP doctors at UPMC Shadyside
     Family Health Center (“Shadyside Family”).

     141. Shick provided Shadyside Family with the requested
     executed authorization to obtain the records of his most recent
     treating physician, Barry Egener, M.D., from LMG Northwest Clinic
     [(“LMG”)] in Portland, Oregon.

     142. Shadyside Family staff requested and LMG staff provided
     Shick’s treatment records to Shadyside Family on July 13, 2011.

     143. From review of the LMG records, it was apparent that on
     Shick’s first visit with LMG on April 14, 2011, Shick claimed to
     have been diagnosed with depression, and did not take sufficient
     medication to efficaciously treat that condition. …

     147. On July 22, 2011, nine days after Shadyside Family’s receipt
     of the LMG records, Shick was evaluated as a new patient by the
     resident family practice physician assigned to that task by UPP at
     Shadyside Family, Thomas Weiner, M.D., with complaints of neck
     and ankle pain, elevated cholesterol and depression.

     148. Dr. Weiner, as all residents in the practice did, at least briefly
     conferred with an experienced physician designated to monitor
     the residents’ progress and training before referring Shick to
     physical therapy and a UPP pain management practice,
     prescribing non-steroidal anti-inflammatory medication, a muscle
     relaxer, and continuation of previously[-]prescribed Prozac.


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J-A20039-18


     149. On August 16, 2011, Shick … returned to be seen by Dr.
     Weiner, complaining of neck, shoulder and ankle pain and seeking
     narcotics, for which he was again prescribed physical therapy. …

     155. … [O]n September 22, Shick was again seen by Dr. Weiner,
     with complaints of chest and neck pain, belching, vomiting and
     depression.

     156. Dr. Weiner ordered an electrocardiogram, again referred him
     to pain management, and ordered a calcium channel blocker used
     to relax the muscles of the heart and blood vessels. …

     160. Shick was next evaluated by Dr. Weiner six days later[,] on
     October 17, 2011, with complaints of severe headaches, neck and
     back pain, stable depression, and requesting cholesterol level
     blood testing.

     161. Dr. Weiner detected an unusual optic disc in Shick’s eye
     during examination, referred Shick to an ophthalmologist for
     further evaluation, ordered Imitrex, which narrows blood vessels
     around the brain to treat migraine[s], ordered the requested blood
     testing, and again referred Shick to pain management for the neck
     and back pain.

     162. On that date, Dr. Weiner first recorded his impression that
     the pain complaints might be due to mental illness, that another
     psychiatric diagnosis besides depression was very likely, that he
     was unsure of the primary psychiatric diagnosis, and that Shick
     may benefit from a psychiatric referral at some point. …

     172. Three days later, on October 24, 2011, Shick was first seen
     by UPP pain management specialist Edward Heres, M.D.[,] of
     UPMC Pain Management, with complaints of pain in his chest, back
     and shoulder, claiming that the pain began after a heart event one
     year previously, his personal care physician would not write any
     more medication for him, and seeking a prescription for the
     narcotic pain analgesic Hydrocodone.

     173. Dr. Heres reviewed Shick’s past medical history on UPP’s
     electronic system, including the depression diagnosis, noted that
     the patient’s affect was flat, and noted the inconsistency between
     the pain complaints and his examination.




                                   -5-
J-A20039-18


     174. Dr. Heres changed Shick’s [non-steroidal anti-inflammatory
     drug] medication and recommended trigger point injections for
     diagnostic and treatment purposes, which Shick underwent in his
     right trapezius and deltoid on October 31, 2011.

     180. On November 4, 2011, Shadyside Family staff set up an
     appointment for Shick to be evaluated by [WPIC] personnel.

     181. On November 9, 2011, Shick underwent a psychiatric
     diagnostic evaluation by a [WPIC] licensed clinical social worker.

     182. Shick denied prior psychiatric treatment, was a very poor
     historian, was very guarded and disconnected, and reported
     severe pain all over because he wanted a wife.

     183. Shick denied a long list of prior psychiatric history symptoms
     or diagnoses with a very animated smile and stating “thank you
     for asking” in response to each of those questions.

     184. Shick … stated that a psychologist friend had told him that
     he was bipolar.

     185. Shick acknowledged that he had been discharged from the
     Duquesne program as the result of harassment charges because
     of unacceptable interactions with women ….

     186. Shick stated he was there for male erectile dysfunction and
     wanted medications to address that problem.

     187. The social worker encouraged him to follow up with his PCP
     for that medication, but Shick said his PCP was out of town and
     he needed to see a psychiatrist.

     188. Shick signed the requested authorization allowing [WPIC]
     personnel to communicate with Susan, and received a November
     28 appointment with a [WPIC] psychiatrist.

     189. The next day, November 10, Shick called Shadyside Family
     seeking pain alleviation.

     190. After consulting with Dr. Weiner, the Shadyside Family staff
     member called Shick, advised him of his elevated cholesterol
     levels, that he should keep his appointment with the psychiatrist,


                                    -6-
J-A20039-18


     and that Dr. Weiner had refused his request to prescribe pain
     medication or increased dosages of statin medications. …

     193. … [O]n November 14, Shick was seen by UPP family practice
     resident physician Juan Bautista, M.D.[,] at Shadyside Family. …

     194. Dr. Bautista ordered comprehensive blood and urine testing,
     ordered [] Celebrex, gave Shick a consult to the UPMC pain clinic,
     ordered the histamine-2 blocker Zantac for treatment of reflux,
     recommended a return in three days, and refused the requested
     kidney test.

     195. Dr. Bautista’s treatment note expressed concern over the
     patient’s statement about getting fired from his job since he was
     recorded as being unemployed on the chart, and refused the
     request for a Prozac refill because the chart indicated he had
     remaining refills available for one year.

     196. [On] November 15, 2011, Shick called Shadyside Family
     seeking his test results.

     197. Later that day, Shick called Shadyside Family requesting a
     Flexeril refill from Dr. Weiner, which the nurse refilled on the order
     of the doctor covering in Dr. Weiner’s absence.

     198. … [O]n November 17, Dr. Bautista called Shick, spoke with
     him, advised [him] of abnormal test results indicating elevated
     cholesterol and potassium levels, agreed to and did send Shick
     written notice of the abnormal blood work and, in response to
     Shick’s complaint that bills from that practice had been sent to
     Shick under the wrong name, Shick was referred to billing.

     199. The next day, November 18, Shick called Shadyside Family
     asking for a referral to dermatology.

     201. Four days later, on November 25, Shick went to the
     emergency room at 1 UPMC Magee Woman’s Hospital with
     gastrointestinal complaints, including belching and vomiting, as
     well as various upper body pains, was agitated, rude and
     uncooperative with the staff, and demanded multiple radiological
     and blood tests.

     202. Shick … was referred to the UPMC gastrointestinal clinic.


                                     -7-
J-A20039-18


     203. The next day, November 26, Dr. Weiner called and spoke
     with Shick to advise him of his elevated cholesterol and slightly
     elevated potassium levels in his blood work results.

     204. Dr. Weiner noticed Shick’s pressured speech and encouraged
     him to be treated by a psychiatrist, which Shick rejected.

     205. Two days later, on November 28, Shick underwent the
     recommended evaluation by UPP psychiatrist Jatinder Babbar,
     M.D.[,] at Western Psych.

     206. Shick denied prior psychiatric treatment, answered almost
     no questions in a straightforward manner, had very poor insight
     and disorganized thoughts, and denied suicidal or homicidal
     ideations.

     207. Dr. Babbar called Susan, who advised that Shick had five
     prior psychiatric admissions, including one for three months in
     Portland in 2010.

     208. Because Susan advised that Abilify and individual psychiatric
     therapy had been effective in the past, Dr. Babbar strongly
     encouraged Shick to start that medication and begin therapy,
     which Shick refused to do[,] and left. …

     209. Dr. Babbar furnished Susan with the numbers for the [WPIC]
     clinic and for resolve, the program within [WPIC] that, among
     other functions, takes and responds to calls about involuntary civil
     commitments, and sends mobile teams to evaluate and transport
     individuals requiring the same.

     210. Dr. Babbar diagnosed Shick as being schizophrenic and
     noncompliant with his medications.

     211. Shick was then scheduled for further psychiatric evaluation
     and treatment by Konsale Prasad, M.D.[,] of UPP’s Department of
     Psychiatry.

     212. The next day, November 29, Dr. Weiner called from
     Pennsylvania and first spoke with Susan, who advised that Shick
     had been diagnosed as schizophrenic, had seen Dr. Babbar, but
     refused to be treated by him again.




                                    -8-
J-A20039-18


     213. On that same day, Dr. Weiner sent an email to UPP
     psychiatrist Stephanie Richards, M.D., who was on the staff of
     Shadyside Family, explaining[ Shick’s behavior.] …

     219. A week later, on December 20, pursuant to the ER doctor’s
     referral, Shick was seen by Christine Gulati, M.D.[,] of UPP’s
     Division of Gastroenterology, Hepatology & Nutrition, self-
     diagnosing a duodenal ulcer due to episodes of vomiting his
     Zantac and aspirin (but not the Prozac), as well as excessive gas,
     belching, nausea, abdominal pain, and a history of depression,
     requesting a prescription for the anti-ulcer medication Carafate. …

     221. On that same day, Shick was seen by Jody Maranchie, M.D.
     [(“Dr. Maranchie”)] of UPP’s Department of Urology, with
     complaints of an elevated potassium test result, intense bilateral
     lower quadrant pain that he attributed to passing kidney stones,
     as well as a history of gastroesophageal reflux disease, an ulcer,
     migraine headaches, chronic muscle back spasms, “ischemic
     stroke” resulting in left ankle pain, and intermittent chest pain,
     but no evidence of myocardial infarction.

     222. Dr. Maranchie performed a physical examination and
     reviewed Shick’s laboratory data, advised Shick (and noted to Dr.
     Weiner) that there was no evidence of urologic pathology. …

     225. [On] December 23, Shick was seen by Dr. Weiner about his
     one[-]time elevated potassium level, with Shick stating his belief
     he had the ability to control his own potassium level, and with
     complaints of regular severe headaches and pain, which he was
     unable to characterize.

     226. Shick accused Dr. Weiner of being like his mother in asking
     about the pain, and said he could only articulate his pain in essay
     form, which he would provide to Dr. Weiner in February, and
     would appreciate it if Dr. Weiner would edit it.

     227. Dr. Weiner recommended that Shick begin taking anti–
     psychotic medication, with Shick responding in a grandiose and
     dismissive fashion, both as to Dr. Weiner and as to Dr. Babbar.

     228. Dr. Weiner recognized that the body pain complaints were
     “most likely” psychosomatic due to Shick’s schizophrenia, referred
     him to Dr. Richards[,] and recommended anti-psychotic


                                    -9-
J-A20039-18


     medications, all of which Shick refused, while continuing to deny
     his schizophrenia and prior treatment for it.

     [234-271. Detailing Shick’s contact with various UPP physicians
     between December 29, 2011, and January 23, 2012.]

     272. …[O]n January 25, Shick was first evaluated by UPP primary
     care physician James Jarvis, M.D.[(“Dr. Jarvis”),] of Stull, Jarvis
     and Spinola Internal Medicine Associates-UPMC with complaints of
     ankle pain, two ischemic strokes, diabetes, pancreatic and liver
     diseases and peptic ulcer disease, indicated his belief that
     Simvastatin provided him pain relief, and requested a prescription
     for the pain treatment drug Tramadol.

     273. Dr. Jarvis checked the chart, recognized that Shick’s
     overriding defect was clearly psychiatric in nature, and refused to
     treat the patient, referring him to the doctors who had ordered
     the numerous tests so that he could obtain the test results.

     274. On that same date, Shick went to undergo the CT scan
     recommended by Dr. [Swaytha] Ganesh and refused the
     prescribed iodinated contrast study; after consultation with the
     radiologist, Dr. Ganesh ordered the scan to proceed without
     contrast, and that occurred. …

     276. Dr. Weiner noted that the patient was “floridly psychotic at
     the moment,” will discuss with psych, “I do not think he meets
     criteria for [involuntary commitment] but will discuss this with
     them; patient believes he suffered an ‘ischemic stroke’ and this
     was due to inadequate statin dose.” …

     278. [On] February 2, Shick initiated treatment with UPP family
     practitioner Ya’aqov Abrams, M.D. [(“Dr. Abrams”)] from Squirrel
     Hill Family Health Center with complaints of vomiting and
     abdominal pain, and requesting specific testing for treatment of
     his self-diagnosed pancreatitis and diabetes.

     279. On that date, Dr. Abrams, using an authorization executed
     by Shick and information provided by him, had available for review
     copies of Shick’s prior medical records from another Portland
     physician, Dr. Iverson, reflecting the depression diagnosis, which
     had been received on January 29. …




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J-A20039-18


     284. Two days after Shick’s visit with Dr. Abrams, on February 4,
     Shick went to the UPMC Presbyterian Hospital emergency
     department, complaining of nausea, abdominal pain, vomiting and
     “white stringy things” in his stool.

     285. The UPP ER doctor reviewed the patient’s UPMC chart,
     recognized the multiple previous medical interactions, that the
     patient had not been engaged in any activities or been in any
     locations where parasitic infections would be likely, and found no
     support for the same on physical exam. …

     287. The next day, February 5, Shick went to the UPMC
     Presbyterian Hospital emergency room with complaints of nausea
     and vomiting and worms in his stool, was given Zofran for the
     nausea, and he then refused further evaluation or taking of vital
     signs and left.

     288. The next day, February 6, Shick was evaluated by UPP
     podiatrist Patrick Burns, D.P.M., with complaints of a hole in his
     left ankle, causing him problems with running and walking, … and
     requesting prescriptions for Lisinopril, Simvastatin and home
     oxygen.

     289. Shick also advised Dr. Burns that he had undiagnosed
     diabetes, recurrent transient ischemic attacks, a possible
     cerebrovascular accident, possible chronic obstructive pulmonary
     disease, high cholesterol, vascular disease, peripheral arterial
     disease, nausea, puss on his abdomen (which was not there),
     migraines, fluid in his ears, coughing with blood in his sputum,
     diarrhea and change in the texture of his stools. …

     291. Based upon previous x-rays, Dr. Burns confirmed the
     existence of an osteocondrolesion of the left talus in Shick's ankle,
     explained that Shick’s vascular supply was good and the testing
     he requested was inappropriate, refused Shick’s requests for
     prescription medications or home oxygen, and referred him back
     to his PCP.

     292. … [O]n February 8, Shick returned to see Dr. Abrams with
     complaints of diabetes and demanding Glucotrol.

     293. Dr. Abrams explained that his recent lab results did not
     confirm Shick’s suspicion of diabetes and asked if he would


                                    - 11 -
J-A20039-18


     consider a referral to a psychiatrist, at which point Shick became
     angry and left the office.

     294. On that same date, Shick sent Dr. Ganesh a letter advising
     the doctor to be very careful this February.

     295. The next day, February 9, Shick returned to be seen by Dr.
     Kirby, demanding testing.

     296. Dr. Kirby’s impression was that Shick was acutely psychotic,
     delusional, but not threatening, the patient refused psychological
     evaluation or medications, and will monitor for commitment.

     297. Dr. Kirby determined [sic] to speak with Shadyside Family’s
     director, UPP family practitioner Gregory Gallick, D.O.

     298. Dr. Gallick spoke with Philip Phelps [(“Phelps”)], Defendant
     UPMC’s Director of Behavioral Science curriculum, about
     involuntary mental health evaluation and treatment commitment,
     with [] Phelps advising that Shick was not a current candidate.

     299. Later that day, Shick called Shadyside Family and reported
     to the nurse that he went to pick up prescriptions from the
     pharmacy that Dr. Kirby had ordered but none were there; Dr.
     Kirby documented that he did not order new prescriptions, the
     patient is acutely psychotic and delusional, and he tried to call
     Shick but received no answer.

     300. The next day, Friday, February 10, Shick appeared at
     Shadyside Family to have blood drawn for testing, and
     inappropriately brandished a baseball bat in a threatening
     manner, causing the nurse to be upset. …

     303. Dr. Weiner advised [resolve’s Jeffery Mcfadden
     (“McFadden”)] that Shick had come into Shadyside Family that
     morning, banged a baseball bat on the counter, waved it around
     in a threatening manner, had been increasingly psychotic and
     intimidating in recent visits, believed he could control the
     electrolytes in his body, has various nonexistent diseases, and
     that UPMC security was called and removed Shick from the
     premises. …




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     304. [] McFadden dispatched a mobile team from resolve to pick
     up Shick and take him to [WPIC] for a mental health wellness
     check and possible commitment. …

     307. The mobile team met with Shick and attempted to assess
     him, but he refused, obtaining the assessor’s name, advising that
     they were not welcome and shut the door to his apartment. …

     321. [On February 17, 2012, a]t 11:35 a.m., Dr. Weiner called
     resolve and spoke with clinician Nedra Williams, asking to have
     involuntary commitment papers faxed to him to accomplish the
     involuntary commitment of Shick.

     322. The clinician informed Dr. Weiner that Western Psych does
     not fax involuntary commitment papers, and suggested that Dr.
     Weiner go to Western Psych to fill out the forms.

     323. At 12:51 p.m., one of the Shadyside Family staff members
     called and spoke with resolve clinician Amanda Dunmire,
     requesting information on the involuntary commitment process,
     and how a doctor completes an involuntary commitment form,
     which information was provided. …

     329. Two days later, on February 20, Shick was evaluated by UPP
     orthopedic foot & ankle surgeon Victor Prisk, M.D. [(“Dr. Prisk”),]
     with a similar history to the one given to Dr. Burns on February 6,
     but adding an additional stroke that morning. …

     331. Shick admitted to depression but denied any other
     psychiatric problems, and wrote the word “green” on the
     psychiatric intake sheet.

     332. Dr. Prisk recognized that Shick clearly had uncontrolled
     schizophrenia upon examination and review of his medical
     records, and really needed psychiatric care.

     333. Dr. Prisk made an effort to contact personnel he referred to
     as “the case managers” for psychiatric help, who he documented
     were unable to come. …

     335. On that same day, February 20, at 3:55 p.m. Dr. Kirby called,
     on an emergent basis, and spoke with resolve clinician Valerie
     Krieger, seeking assistance to have Shick involuntarily committed.
     …

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J-A20039-18



     341. Dr. Kirby did not attempt to or file a commitment petition the
     next day or at anytime thereafter. …

     350. One week after he had failed to file the commitment papers,
     on Tuesday, February 28, Dr. Kirby sent Shick a letter on behalf
     of Shadyside Family notifying him that the practice would no
     longer provide medical care to him effective thirty days from that
     date.

     351. A week later, on March 7, Shick called for and received
     emergency care at his residence for his complaints of shortness of
     breath, vomiting blood[,] and parasites in his intestines and eyes.

     352. Shick was taken to UPMC Presbyterian Hospital's emergency
     department, where he repeated that history, demanded pain
     medication, refused to discuss his medications with the examining
     physicians, and left.

     353. The next day, March 8, 2012, Shick went to Western Psych.

     354. He brought with him loaded Makarov and Beretta 9mm
     semiautomatic handguns and extra ammunition he had purchased
     a year previously in New Mexico.

     355. In the unguarded Western Psych lobby, he shot and injured
     [Kathryn] at the unprotected receptionist’s desk, and shot several
     other people, killing one of them, before he was himself shot and
     killed by an armed Pitt police officer stationed nearby, but not in
     or assigned to Western Psych, who responded to reports of the
     incident.

     356. As the direct result of the bullets Shick fired at and into
     [Kathryn], she suffered physical injuries in the nature of gunshot
     wounds to the left chest and abdomen, including entry wounds
     there and exit wounds from her back, and related internal injuries
     to her muscles, ligaments, nerves and internal organs, and
     complications including pneumothorax and respiratory failure.

     357. As the direct result of her receipt of appropriate treatment
     for her bullet wounds, including intubation and exploratory
     surgery, it was necessary for [Kathryn] to undergo significant
     emergency and long term initial and subsequent hospitalizations,


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      surgeries and other medical procedures, nursing care and
      treatment.

      358. [Kathryn] also suffers from severe post-traumatic stress
      disorder as the direct result of the shooting.

Second Amended Complaint, 9/16/13, at ¶¶ 30-358; Third Amended

Complaint, 2/25/14, at ¶¶ 28-29, 238, 245.

      On June 6, 2012, the Leights filed a Complaint against Phillip L. Clark,

Administrator of the Estate of Shick. Thereafter, the Leights filed an Amended

Complaint, adding UPP, UPMC, Pitt, and Susan as defendants. After the filing

of Preliminary Objections by UPP, UPMC, Pitt, the Leights filed a Second

Amended Complaint. In the Second Amended Complaint, the Leights alleged,

inter alia, negligence claims against Pitt and UPP. On October 7, 2013, UPMC,

UPP and Pitt filed Preliminary Objections to the Second Amended Complaint,

arguing, inter alia, that there was no duty to warn or protect Kathryn from

Shick and that there was no duty owed to Kathryn under the MHPA.           The

Leights filed Preliminary Objections to the Preliminary Objections filed by

UPMC, UPP and Pitt, arguing that UPP acted with gross negligence under the

MHPA in its treatment decision regarding Shick. The Leights also filed a Third

Amended Complaint, adopting most of the Second Amended Complaint, and

adding, inter alia, that the physicians who interacted with Shick were agents

of UPP, UPMC, and Pitt, and vicarious liability claims against Pitt and UPMC.

      On May 27, 2014, following a hearing, the trial court entered an Order

sustaining in part and overruling in part the Preliminary Objections filed by


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UPP and UPMC.3 Relevantly, the trial court dismissed the MHPA claims, finding

that the MHPA does not apply to voluntary outpatient treatment.4 The Leights

filed a Motion for Clarification/Correction and Certification, seeking to clarify

Pitt’s omission from the May 27, 2014 Order, and seeking a certification to

immediately appeal the May 27, 2014 Order.5 On April 2, 2015, the trial court

amended its May 27, 2014 Order, dismissing all claims, except for the

premises liability claims, against Pitt. The trial court also denied the Motion

for Certification.

       Thereafter, the parties conducted discovery regarding the ownership

and control of the security measures at WPIC. On December 15, 2017, the

Leights filed a Motion for Leave to Discontinue in Part, seeking to discontinue


____________________________________________


3 In this Order, the trial court dismissed all claims against UPP and all claims,
except those related to premises liability, against UPMC. The trial court
erroneously excluded Pitt from the Order. Further, in the Order, the trial court
granted the Preliminary Objections filed by Susan, and dismissed the Leights’
claims regarding Susan’s negligent exercise of control over Shick.

4 We note that while the Second and Third Amended Complaints appear to
raise common law negligence claims against UPP and Pitt, the Leights focused
their entire argument on whether the MHPA imposes a duty upon UPP and Pitt.
See, e.g., Trial Court Opinion, 5/27/14, at 21 (stating that the Leights “are
not contending that common law tort law recognizes any cause of action by
persons injured as a result of the failure of the physicians to begin the
commitment process.”); N.T., 12/5/13, at 5 (in response from a question from
the court asking whether the liability is based upon statute or some other
duty, the Leights’ attorney stated that they were proceeding “[s]olely on
statute, … the [MHPA].”).

5 In the interim, the trial court approved a joint tortfeasor agreement between
all of the deceased and injured parties and Shick’s estate and its liability
insurer.

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the remaining claims in the case to allow an appeal of the dismissal of the

MHPA claims. The trial court granted the Motion and dismissed the remaining

claims against Pitt and UPMC. The Leights filed a timely Notice of Appeal.

      On appeal, the Leights raise the following question for our review:

      Where the Complaint alleged that:

      a. treating primary care physicians observed and determined that
         their paranoid schizophrenic psychotic patient was severely
         mentally disabled, in need of immediate treatment, and an
         imminent danger to others;

      b. the physicians decided their patient must undergo the
         involuntary emergency examination and treatment process
         under Section 302 of the [MHPA];

      c. the physicians contacted the facility where such examinations
         and treatment occurred within the County to discover the steps
         necessary to cause the process to occur;

      d. the physicians affirmatively decided to initiate the process in
         regard to the dangerous patient and communicated their intent
         to do so to the treatment facility’s staff, but then grossly
         negligently failed or refused to do so; and,

      e. the patient soon thereafter engaged in a shooting spree in the
         lobby of the examination and treatment facility, causing severe
         injuries to [Kathryn], the facility’s receptionist;

      did the lower court err as a matter of law by sustaining preliminary
      objections of the physicians’ employers/principals, erroneously
      deciding that the physicians’ decisions to initiate involuntary
      examination and treatment proceedings, followed by their grossly
      negligent decisions to fail or refuse to do so, did not constitute
      participation in decisions that a severely mentally disabled person
      in need of immediate treatment be examined or treated under
      Section 7114 of the Act?

Brief for Appellants at 3-5.




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             [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.

Shafer Elec. & Const. v. Mantia, 67 A.3d 8, 10–11 (Pa. Super. 2013)

(citation omitted).

      We will address the Leights’ claims together as they all relate to whether

they have a viable cause of action under the MHPA against Pitt and UPP. The

Leights contend that the trial court erred in concluding that the physicians who

provided voluntary outpatient medical care were not liable under the MHPA as

a matter of law. Brief for Appellants at 32, 34-35; see also id. at 38-40

(asserting that the trial court failed to examine the pleadings in a light most

favorable to the Leights).    The Leights argue that the trial court erred in

“finding that the absence of mention of voluntary outpatient treatment in the

[MHPA’s] scope language [under section 7103] immunized physicians

providing voluntary outpatient medical treatment from their grossly negligent

involuntary examination decisions.” Id. at 33; see also id. (claiming that

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there is no ambiguity in section 7114, “which imposes [the] duty and potential

liability upon any physician participating in a determination that a person be

involuntarily examined for potential commitment.”). The Leights argue that

the trial court’s interpretation of the MHPA is flawed, as a determination that

an involuntary commitment examination is necessary is involuntary, not

voluntary, treatment. Id. at 35. The Leights assert that the pleadings in this

case aver that the physicians were “grossly negligent” in determining that

Shick be involuntarily examined for potential commitment and treatment, but

failing to follow through to accomplish the evaluation. Id. at 31, 33, 35, 39-

41; see also id. at 40 (stating that section 7302 of the MHPA authorizes

physicians treating mentally ill persons to be involuntarily examined through

four different methods). The Leights argue that physicians may be held liable

for the consequences of these actions under section 7114. Id. at 35.

      The Leights further claim that the trial court erred in “attempting to graft

the [s]ection 7103 scope language onto the [s]ection 7114 language

establishing   liability for   grossly   negligent   participation in   involuntary

examination determinations[.]” Id. at 36-37. The Leights argue that under

section 7114, physicians are given the same duty of care as peace officers.

Id. at 37. The Leights contend that a peace officer’s potential liability would

only result from “gross negligence” in determining whether a mentally ill

person be involuntarily examined. Id. The Leights assert that under the trial

court’s interpretation of sections 7103 and 7114, a peace officer could never


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be liable for such a decision because the officer would not handle a voluntary

inpatient or involuntary outpatient or inpatient person. Id. at 37. The Leights

thus argue that the physician, like the peace officer, may be held liable under

the MHPA for their determination of whether a mentally ill person be

involuntarily examined. Id. at 37-38.

      Because the issue of whether the Leights may bring an action against

Pitt and UPP pursuant to the MHPA is “one of statutory construction—a pure

question of law—our standard of review is de novo and our scope of review is

plenary.” Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC,

146 A.3d 232, 238 (Pa. 2016).

      In interpreting a statute, this Court endeavors to ascertain and
      effectuate the intention of the General Assembly. Because,
      generally, the best indicator of legislative intent is
      the plain language of the statute, we begin our inquiry by
      considering the words of the statute.             In doing so,
      we construe words and phrases according to their common and
      approved usage or, as appropriate, their peculiar and appropriate
      or statutorily provided meanings. Finally, we bear in mind that
      words and phrases must be viewed not in isolation, but
      with reference to the context in which they appear.

Id. (citations, ellipses, and quotation marks omitted).

      “[T]he General Assembly enacted the MHPA to provide procedures and

treatment for the mentally ill in this Commonwealth.” Martin v. Holy Spirit

Hosp., 154 A.3d 359, 362 (Pa. Super. 2017); see also 50 P.S. § 7102 (stating

that “[i]t is the policy of the Commonwealth of Pennsylvania to seek to assure

the availability of adequate treatment to persons who are mentally ill, and it

is the purpose of this act to establish procedures whereby this policy can be

                                    - 20 -
J-A20039-18


effected.”). “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.” 50 P.S. § 7103;6 see

also id. (stating that “[i]npatient treatment” shall include all treatment that

requires full or part-time residence in a facility.”).

       The immunity provision of the MHPA provides as follows:

       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, or that a person
       be discharged, or placed under partial hospitalization, outpatient
       care or leave of absence, or that the restraint upon such person
       be otherwise reduced, or a county administrator or other
       authorized person who denies an application for voluntary
       treatment or for involuntary emergency examination and
       treatment, shall not be civilly or criminally liable for such decision
       or for any of its consequences.

Id. § 7114(a); see also Farago v. Sacred Heart Gen. Hosp., 562 A.2d 300,

304 (Pa. 1989) (stating that the clear intent for enacting Section 7114 of the

MHPA was “to provide limited protection from civil and criminal liability to

mental health personnel and their employers in rendering treatment in this

unscientific and inexact field.”).       Section 7114(a) has been interpreted “to

include not only treatment decisions, but also, care and other services that



____________________________________________


6 The General Assembly recently amended various sections of the MHPA,
including section 7103, to be effective on April 22, 2019. See MENTALLY ILL
PERSONS—TREATMENT, 2018 Pa. Legis. Serv. Act 2018-106 (H.B. 1233).
However, the cited language of section 7103 remains the same in the
amended version of section 7103.

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J-A20039-18


supplement treatment in order to promote the recovery of the patient from

mental illness.”   Martin, 154 A.3d at 363 (citation and quotation marks

omitted). While section 7114(a) provides immunity to parties treating persons

under the MHPA, it also provides for an affirmative cause of action upon a

showing of gross negligence or willful misconduct.     See Goryeb v. Com.,

Dep’t of Pub. Welfare, 575 A.2d 545, 548–49 (Pa. 1990).

      Here, a plain reading of the statutes demonstrates that while a plaintiff

may maintain a cause of action where the parties treating or examining a

patient under the MHPA have acted with gross negligence, the MHPA only

applies to all involuntary inpatient or outpatient treatment, and voluntary

inpatient treatment of mentally ill persons. See 50 P.S. § 7103; see also

McNamara by McNamara v. Schleifer Ambulance Serv., Inc., 556 A.2d

448, 449 (Pa. Super. 1989) (stating that the MHPA “establishes rights and

procedures for all involuntary treatment and voluntary inpatient treatment of

mentally ill persons.”) (emphasis omitted). Thus, the immunity and cause of

action provisions under section 7114 of the MHPA do not apply to voluntary

outpatient treatment. See McKenna v. Mooney, 565 A.2d 495, 496 (Pa.

Super. 1989) (holding that section 7103 clearly states that the MHPA does not

apply to voluntary outpatient treatment); see also DeJesus v. U.S. Dep’t of

Veterans Affairs, 479 F.3d 271, 284 (3d Cir. 2007) (noting that

“Pennsylvania courts have held that the MHPA does not apply to voluntary

outpatient treatment.”).


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      In the instant case, the Leights do not allege that UPP or Pitt was

negligent in its examination or treatment of Shick while he was an involuntary

inpatient or outpatient, or a voluntary inpatient at any facility. Further, the

Leights do not raise any allegations regarding a decision to discharge Shick to

outpatient care.   Instead, the Leights attempt to expand the scope of the

MHPA by asserting that treatment decisions on a voluntary outpatient basis

established a duty on UPP and Pitt to protect Kathryn from Shick. However,

because the “physicians never started the process for seeking an emergency

examination …, no decision was ever made as to whether Shick should be

involuntarily examined and receive involuntary treatment.”         Trial Court

Opinion, 5/27/14, at 23; see also 50 P.S. § 7302(a) (noting that an

application for examination may be undertaken upon the certification of a

physician stating the need for such examination; or upon a warrant issued by

the county administrator authorizing such examination; or without a warrant

upon application by a physician or other authorized person who has personally

observed conduct showing the need for such examination.”). In point of fact,

while Shick was evaluated by WPIC staff, the Leights do not allege that there

was treatment or examination under the dictates of the MHPA.         While we

sympathize with the Leights’ argument, this Court cannot conclude that the

mere thought or consideration of initiating an involuntary examination during

voluntary outpatient treatment falls within the explicit scope of the MHPA.

See Fogg v. Paoli Mem’l Hosp., 686 A.2d 1355, 1358 (Pa. Super. 1996)


                                    - 23 -
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(noting that while a patient presented himself for treatment at an emergency

room, he was not examined or treated by anyone in the field of mental health,

and no decision regarding his treatment was made, the hospital could not

“avail itself of the immunity protections of [section 7114 of] the MHPA.”); see

also Herman v. Cty. of York, 482 F. Supp. 2d 554, 567–68 (M.D. Pa. 2007)

(concluding that the MHPA was inapplicable where no proceedings for an

involuntary examination or treatment were instituted and the patient was not

receiving any voluntary inpatient treatment). Thus, the Leights cannot sustain

a cause of action under the MHPA, and the trial court properly granted the

Preliminary Objections filed by UPP and Pitt.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/2018




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