J-A05023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GEORGE HANCOCK AND JOAN                          IN THE SUPERIOR COURT OF
HANCOCK,                                               PENNSYLVANIA

                           Appellants

                      v.

FRIENDS HOSPITAL, PSYCHIATRIC
SOLUTIONS, INC., FRIENDS HOSPITAL
BEHAVIORAL HEALTH SYSTEMS, LP,
FRIENDS GP, LLC, LEAH E.
ROSENKRANTZ, D.O. AND LUIDMILA
LOBACH, M.D.,

                           Appellees                  No. 1666 EDA 2014


                   Appeal from the Order entered May 7, 2014,
              in the Court of Common Pleas of Philadelphia County,
               Civil Division, at No(s): April Term, 2012 No. 01935


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED MARCH 09, 2015

      Spouses George and Joan Hancock, (“Mr. Hancock”, “Mrs. Hancock,”

or collectively, “Appellants”), appeal from the trial court’s order granting

summary judgment in favor of Friends Hospital, Psychiatric Solutions, Inc.,

Friends Hospital Behavioral Health Systems, LP, Friends GP, LLC, Leah E.

Rosenkrantz, D.O. and Luidmila Lobach, M.D., (“Dr. Lobach,” or collectively,

“Hospital”). We affirm.

      The trial court detailed the factual and procedural history of this case

as follows:

      On July 20, 2010, [Mr. Hancock] voluntarily presented himself at
      Friends Hospital. He waited in the Main Lobby waiting area for
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       approximately eight hours – from 2:30 p.m. to 10:30 p.m. Mr.
       Hancock dozed and sat quietly until 4:00 p.m. when he was
       interviewed by a nurse.      He continued to sit quietly the
       remainder of the evening. [Dr. Lobach] met with Mr. Hancock
       for 45 minutes from 6:15 p.m. to 7:00 p.m. At 10:30 p.m.
       when he was discharged, Mr. Hancock was referred to a social
       service agency to get housing and medications. While Mr.
       Hancock remained in the waiting area, he was being monitored
       every 15 minutes.

             On July 22, 2010, Mr. Hancock drove his van into his wife's
       car, causing injuries to both of them. Mr. Hancock was arrested
       and subsequently incarcerated.1

             In April, 2012, [Appellants] initiated this litigation against
       Friends Hospital, Dr. Lobach and others, claiming inter alia,
       gross negligence and negligence because [Hospital] knew [Mr.
       Hancock] needed a place to sleep, knew he had substance abuse
       and mental health problems, and, that by failing to hospitalize
       him on July 20th, it was foreseeable that Mr. Hancock would act
       violently toward himself and his wife.

             After litigation discovery was closed, [Hospital] filed
       Motions for Summary Judgment, which were opposed by
       [Appellants]. On April 7, 2014, this Court granted Summary
       Judgment in Part, finding that as a matter of law the record does
       not support gross negligence. The Motions based on negligence
       were denied.

             The April 7, 2014 Orders were vacated following Motions
       for Reconsideration filed by all parties.          Supplemental
       Memoranda were submitted and oral argument was heard by
       this Court. On May 6, 2014, this Court ruled from the bench and
       provided the overview and analysis in support of Findings of Fact
       and Conclusions of Law for the decisions: that all of [Hospital’s]
____________________________________________


1
  In their statement of the case, Appellants further posit that “[t]wo days
after having been discharged from [Hospital], Mr. Hancock attempted to kill
himself by sticking a knife in his stomach; he then drove his van directly into
[his wife’s] car while she was inside her vehicle. Mr. Hancock was arrested,
charged with multiple felonies, spent an extended period of time in prison,
contracted MRSA while in prison, and was divorced by his wife of 27 years,
all as a direct result of this incident.” Appellants’ Brief at 5-6.



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      Motions for Summary Judgment were granted, that [Appellants’]
      Motion for Reconsideration was denied, and, that [Appellants’]
      Complaint was Dismissed With Prejudice.

            When considering the Mental Health Procedures Act,
      Section 7114(a), [Hospital is] immune from civil liability
      inasmuch as they all participated in the decision to discharge
      [Mr.] Hancock on July 20, 2010.

            In accordance with Rule 1925(a) of the Pennsylvania Rules
      of Appellate Procedure, this Court respectfully refers the
      Honorable Superior Court to the Hearing Transcript, dated May
      6, 2014, as the reasons for the rulings.

Trial Court Opinion, 6/23/14, at 1-2. The trial court did not order Appellant

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

Pa.R.A.P. 1925(b).

      Appellants present the following issues for our consideration:

      A. Did the trial court err in granting the Motion for Summary
         Judgment of [Hospital] and dismissing [Appellants’]
         Complaint with Prejudice?

      B. Did the trial court err in granting the Motion for Summary
         Judgment of [Dr. Lobach] and dismissing [Appellants’]
         Complaint with Prejudice?

Appellants’ Brief at 4.

             Our scope of review … [of summary judgment orders] … is
      plenary.    We apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to judgment as a matter of law will
      summary judgment be entered.

             Motions for summary judgment necessarily and directly
      implicate the plaintiff’s proof of the elements of his cause of

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      action. Summary judgment is proper if, after the completion of
      discovery relevant to the motion, including the production of
      expert reports, an adverse 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. Thus a record that
      supports summary judgment will either (1) show the material
      facts are undisputed or (2) contain insufficient evidence of facts
      to make out a prima facie cause of action or defense and,
      therefore, there is no issue to be submitted to the jury. Upon
      appellate review we are not bound by the trial court’s
      conclusions of law, but may reach our own conclusions. The
      appellate Court may disturb the trial court’s order only upon an
      error of law or an abuse of discretion.

Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012)

(internal citation omitted).

      Initially, we note that Appellants’ argument does not adhere to our

rules of appellate procedure.    See Pa.R.A.P. Rule 2119 (“The argument

shall be divided into as many parts as there are questions to be

argued …, followed by such discussion and citation of authorities as are

deemed pertinent.”) (emphasis supplied).        Appellants present only two

questions for our review, yet they subdivide their argument into seven parts.

Appellants compound their procedural misstep by failing to develop all of

these subparts appropriately. Indeed, Appellants include in their argument

the contention that “[Appellants] have stated a viable claim under the

Emergency Medical Treatment and Active Labor Act (“EMTALA”) against

[Hospital].”   Appellants’ Brief at 11.   This argument is not articulated in

Appellants’ statement of questions. Moreover, while Appellants cite to the

record in support of their contention, Appellants do not cite any case law to


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buttress       their   EMTALA     argument.     See    Appellants’     Brief   at   22-26.

Accordingly, we find this issue waived for appellate review and we decline to

reach    it.      See     Giant   Food   Stores,      LLC   v.   THF    Silver      Spring

Development, L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (“Appellant’s

issue on appeal is waived because [Appellant] has failed to set forth in its

appellate brief any citation to legal authority pertaining to [Appellant’s]

argument”).            Additionally, Appellants argue       that Hospital is “legally

responsible for the actions of” Dr. Lobach, yet Appellants fail to cite a single

case for this proposition, and rely only on a citation to the “Pennsylvania

Suggested Standard Jury Instructions, 4th Ed. § 14.80.” Appellants’ Brief at

34-35.     Again, Appellants’ failure to develop their argument effects waiver.

See Giant Food Stores, supra, at 444. Moreover, our finding that Hospital

is immune from liability as delineated more fully below renders unavailing

Appellants’ additional arguments regarding the viability of Mrs. Hancock’s

third party claim, Mrs. Hancock’s loss of consortium claim, Appellants’ joint

claim “for loss of their marital relationship,” and Mr. Hancock’s contention

that Hospital is “directly responsible for his arrest, incarceration and

ultimately for his guilty plea to aggravated assault.” See Appellants’ Brief at

26-33.

         Appellants contend that the Mental Health Procedures Act, (“MHPA”),

50 P.S. § 7103 et seq, does not apply to this action, and that therefore,

Hospital is not entitled to the immunity from liability that the MHPA affords

mental health providers under 50 P.S. § 7114. See Appellants’ Brief at 8.

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     Appellants’ counsel argued before the trial court:

           The [Mental Health] 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.

           Now, Mr. Hancock, everyone will concede [that] this was
     not a case of involuntary treatment. He voluntarily presented
     himself. I think that everyone else will also concede that Mr.
     Hancock was never treated as an inpatient. So this is not a case
     of voluntary inpatient treatment of a mentally ill person.

           So, yes, Mr. Hancock wanted to be inpatient for treatment.
     That’s why he was there. And if he had been admitted, we
     wouldn’t be here today, but he wasn’t admitted.

N.T., 5/6/14, at 32-33. Appellants further argue that “[s]ince Mr. Hancock’s

treatment was voluntary and performed as an outpatient, his treatment was

not ‘encompassed within the protection of the Act.’ Therefore, the immunity

provisions of the Act do not apply to [Hospital].” Appellants’ Brief at 9. We

disagree.

     The MHPA specifically provides:

     Immunity from Civil and Criminal Liability.—(a) In the absence
     of willful misconduct or gross negligence, a county
     administrator, a director of a facility, a physician, a peace
     officer or any other authorized person who participates in
     a decision that a person be examined or treated under
     this act, 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 a decision or for any of its
     consequences.



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50 P.S. § 7114(a) (emphasis supplied). Thus, based on a plain reading of

the statute, Hospital is immune from civil liability for the decision not to

admit Mr. Hancock for voluntary inpatient treatment, as well as for any of

the decision’s consequences such as Mr. Hancock’s attempted suicide, motor

vehicle accident, and the resulting personal injuries to Appellants. See In

re R.D.R., 876 A.2d 1009, 1016 (Pa. Super. 2005) (“[W]hen interpreting a

statute, the court must give plain meaning to the words of the statute. It is

not a court’s place to imbue the statute with a meaning other than that

dictated by the plain and unambiguous language of the statute.”); see also

1 Pa.C.S.A. § 1921(a)-(b) (“(a) The object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly. Every statute shall be construed, if possible, to give

effect to all its provisions. (b) When the words of a statute are clear and

free from all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.”); compare Fogg v. Paoli Memorial

Hospital, 686 A.2d 1355, 1358 (Pa. Super. 1996) (hospital was not immune

from liability pursuant to 50 P.S. § 7114(a) for death of mentally ill patient

who presented to emergency room, but was never evaluated or treated prior

to patient’s suicidal fall from hospital window). Specifically, in affirming the

trial court’s determination that appellant/hospital was not entitled to

immunity, we reiterated that “[t]he decision making process referred to in

7114 was found to be one ‘which would take place within the context of

treatment, care, diagnosis or rehabilitation’.” Fogg, supra, at 1358 citing

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McNamara v. Schleifer Ambulance Serv., 556 A.2d 448, 449 (Pa. Super.

1989). We further explained:

      In this case the trial court correctly noted that [patient] was not
      yet being treated by Appellant[-hospital] at the time of
      his injuries. Although he presented himself for treatment
      at the emergency room, he was not examined or treated
      by any hospital personal [sic] while in the emergency
      room, and no decisions regarding his care or treatment
      were made while [patient] was at Appellant[-hospital's]
      facility. Since no one from Appellant-hospital who was trained
      in the field of mental health was treating Appellant or making
      decisions regarding his treatment at the time of the accident,
      Appellant[-hospital] cannot avail itself of the immunity
      protections of the MHPA.

Fogg, supra, at 1358.

      Here, by contrast, following his voluntary presentation at Hospital’s

emergency room for treatment, Mr. Hancock was examined and treated by

various Hospital personnel who were trained in the field of mental health,

and made decisions regarding Mr. Hancock’s care and treatment while he

was at Hospital’s emergency room.           It is undisputed that prior to his

discharge from Hospital, Mr. Hancock had been evaluated by a nurse, Denise

McClellan, and Dr. Lobach, a psychiatry resident physician, and was

discharged by an attending physician, Dr. Leah E. Rosenkrantz.              See

generally Mr. Hancock’s Medical Records from Hospital, 7/20/12.             It is

further undisputed that Mr. Hancock was diagnosed with non-acute

depressive disorder, and alcohol and drug dependency, and was referred to

an outside facility for follow-up.   Id.   Moreover, at the conclusion of oral

arguments, the trial court observed:

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     Section 7114(a), I'm not focusing so much on treatment,
     although I acknowledge that every 15-minute observation could
     be characterized as treatment, so I don’t want to suggest that he
     was not treated, but I believe that the participation and the
     decision that a person be discharged, or any other authorized
     person who denies an application for voluntary treatment, which
     is what we have here, brings in the immunity and none of the
     defendants can be civilly liable for those decisions or for those
     consequences.

N.T., 5/6/14, at 49-50.

     Our Supreme Court has determined:

           Section [7]114 [of the MHPA] speaks of immunity of ones
     “who participates in a decision that a person be examined or
     treated under this act, ...” 50 P.S. § 7114. Treatment is defined
     in the MHPA as follows:

        Adequate treatment means a course of treatment designed
        and administered to alleviate a person's pain and distress
        and to maximize the probability of his recovery from
        mental illness. It shall be provided to all persons in
        treatment who are subject to this act. It may include
        inpatient treatment, partial hospitalization, or
        outpatient treatment.        Adequate inpatient treatment
        shall include such accommodations, diet, heat, light,
        sanitary facilities, clothing, recreation, education and
        medical care as are necessary to maintain decent, safe and
        healthful living conditions.

        Treatment shall include diagnosis, evaluation,
        therapy, or rehabilitation needed to alleviate pain
        and distress and to facilitate the recovery of a
        person from mental illness and shall also include
        care and other services that supplement treatment
        and aid or promote such recovery.

     50 P.S. § 7104.

Farago v. Sacred Heart General Hospital, 562 A.2d 300, 304 (Pa. 1989)

(emphasis supplied).



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     While Appellants criticize the nature and extent of Mr. Hancock’s

treatment at Hospital, the record when viewed in the light most favorable to

Appellants reflects that Mr. Hancock was indeed treated by Hospital

personnel trained in mental health, and a decision was made regarding his

care by Hospital, which denied him admission for voluntary inpatient

treatment.   Accordingly, Appellants’ argument that Hospital’s treatment of

Mr. Hancock falls outside of the purview of 50 P.S. § 7114(a) fails, and

Hospital is entitled to invoke the MHPA’s immunity provision.

     Appellants further argue that “[e]ven if the [MHPA] were to apply to

this matter, [Appellants] have provided sufficient proof that [Dr. Lobach’s]

treatment constituted a gross departure from the standard of care.”

Appellants’ Brief at 9 (bold omitted). Again, we cannot agree. As set forth

in Albright v. Abington Memorial Hospital, 696 A.2d 1159 (Pa. 1997),

and relied upon by the trial court, our Supreme Court explained:

        It appears that the legislature intended to require that
        liability be premised on facts indicating more egregiously
        deviant conduct than ordinary carelessness, inadvertence,
        laxity, or indifference.   We hold that the legislature
        intended the term gross negligence to mean a form of
        negligence where the facts support substantially more than
        ordinary carelessness, inadvertence, laxity, or indifference.
        The behavior of the defendant must be flagrant, grossly
        deviating from the ordinary standard of care.

     Bloom, 409 Pa.Super. at 98-99, 597 A.2d at 679.

           We believe that this definition is a clear, reasonable, and
     workable definition of gross negligence which is consistent with
     the purpose and intent of the [MHPA]. []

                                   ***

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           While it is generally true that the issue of whether a given
     set of facts satisfies the definition of gross negligence is a
     question of fact to be determined by a jury, a court may take the
     issue from a jury, and decide the issue as a matter of law, if the
     conduct in question falls short of gross negligence, the case is
     entirely free from doubt, and no reasonable jury could find gross
     negligence. See, e.g., Willett v. Evergreen Homes, Inc., et. al.,
     407 Pa.Super. 141, 595 A.2d 164 (1991), alloc. denied, 529 Pa.
     623, 600 A.2d 539 (1991) (summary judgment affirmed as to
     employees of facility pursuant to Mental Health and Retardation
     Act of 1966, 50 P.S. § 4603, which contains a limited immunity
     provision similar to that found in the [MHPA] at issue and which
     immunizes certain treatment decisions unless such decisions rise
     to the level of, inter alia, gross negligence); 57A Am.Jur.2d §
     256. []

                                   ***

             To require mental health employees and their employers to
     defend jury trials on the issue of gross negligence where the trial
     judge finds as a matter of law that, at best, only ordinary
     negligence has been established, would gut the limited immunity
     provision of the [MHPA] of any meaning and unfairly subject
     such employees and facilities to protracted and expensive
     litigation. []

                                   ***

             [] We cannot expect those covered by the [MHPA] to be
     soothsayers, and the limited immunity provision of the [MHPA]
     recognizes this understanding.       The granting of summary
     judgment is particularly appropriate here in light of the intent of
     the [MHPA] to provide limited immunity from civil and criminal
     liability to mental health personnel and their employers in
     rendering treatment in this “unscientific and inexact field.”
     Farago v. Sacred Heart General Hospital, 522 Pa. 410, 417, 562
     A.2d 300, 304 (1989). The purpose of the [MHPA's] immunity
     provision is to insulate mental health employees and their
     employers from liability for the very determinations made by the
     Hospital here.

           In summary, we find that the lower courts applied a clear
     and workable definition of gross negligence, which, for
     purposes of the [MHPA], constitutes conduct substantially
     more than ordinary carelessness, inadvertence, laxity, or
     indifference; that is, behavior that is flagrant, grossly

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J-A05023-15


      deviating from the ordinary standard of care. Moreover, we
      find that when presented with facts that do not meet the
      definition of gross negligence, as a matter of law, a court may
      withdraw the factual determination of gross negligence from the
      jury and decide the question as a matter of law.

Albright v. Abington Memorial Hospital, 696 A.2d 1159, 1164-1165;

1167 (Pa. 1997) (emphasis supplied).

      Based on our careful scrutiny of the record in the light most favorable

to Appellants, we find that the trial court did not err in granting summary

judgment in favor of Hospital because Hospital was not grossly negligent.

Specifically, the trial court explained:

            [] I just simply cannot find gross negligence [here].

            And I looked at the expert report of [Appellants’ expert]
      Dr. Schouten from Harvard, M.D., J.D. I looked at everything
      that he said. I still can't find gross negligence here. And if,
      indeed, we were at a nonsuit stage, I think we'd be in trouble,
      [Appellants, I] really do, because he has just accumulated a
      bunch of factors that, basically, poor Mr. Hancock just didn't
      have a place to sleep and he needed a place to sleep that night.
      That’s what I got out of it.

            So, anyway, okay, the expert report of Dr. Schouten, in
      some situations there are occasions when there's a summary
      judgment motion where simply having a plaintiff’s expert report
      is enough to overcome a summary judgment motion, but I've
      read it and I don't see that here. So I'm certainly going to refer
      to the quote that all of you have referred to. There are two
      quotes. One is the Albright quote where the determination of
      whether or not a factor, whether or not a situation involves gross
      negligence is usually for a jury but may be removed when, as a
      matter of law, the judge feels it’s free from doubt and there's no
      possibility that a jury could find gross negligence, and I really do
      believe this is that situation.

            When we look at these factors here, you know, he was
      estranged from his son, he was living in his car, he had medical


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         problems, you know, those types of factors, that’s not enough to
         find gross negligence.

               And then I look also in the Albright case where they say,
         therefore, what is gross negligence? It’s not just ordinary
         carelessness or inadvertence or laxity or indifference. And
         looking at Albright as a guide, I think that I feel comfortable that
         there’s no gross negligence here.

N.T., 5/6/14, at 42-44.

         Significantly, Mr. Hancock admitted changing his mind about wanting

to commit suicide prior to presenting at Hospital, and that he “wanted to

live.”    See Memorandum of Law in Support of [Hospitals’] Response in

Opposition to [Appellants’] Motion for Reconsideration, 4/30/14, Exhibit E;

N.T., Mr. Hancock’s Deposition, Volume II, 4/18/13, at 154.           Mr. Hancock

further acknowledged that he advised Hospital’s staff that he “d[id]n’t want

to commit suicide. I’m here to live.” Id. at 156. Mr. Hancock conceded he

“never told anyone that [he] wanted to harm or kill” his wife. Id. at 162.

Accordingly, the record reflects that in deciding not to admit Mr. Hancock for

voluntary inpatient treatment, Hospital’s actions did not constitute “conduct

substantially more than ordinary carelessness, inadvertence, laxity, or

indifference; that is, behavior that is flagrant, grossly deviating from the

ordinary standard of care.” Albright, supra, at 1167.

         Based on the foregoing, we find that the trial court did not err in

granting summary judgment in favor of Hospital because Hospital was not

grossly negligent in treating Mr. Hancock, and was immune from liability

pursuant to 50 P.S. § 7114(a).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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