J-A03024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLES GALEANO & PATRICIA                      IN THE SUPERIOR COURT OF
GALEANO                                               PENNSYLVANIA

                         Appellants

                    v.

SUSQUEHANNA HEALTH SYSTEM AND
WILLIAMSPORT REGIONAL MEDICAL
CENTER

                         Appellees                   No. 1182 MDA 2016


                 Appeal from the Order Entered May 12, 2016
              In the Court of Common Pleas of Lycoming County
                        Civil Division at No: 14-00629


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.:                                FILED MAY 17, 2017

      Charles   Galeano    (“Charles”)   and   Patricia   Galeano   (“Patricia”)

(collectively “Appellants”) appeal from the May 12, 2016 order entered in

the Court of Common Pleas of Lycoming County granting summary judgment

in favor of Susquehanna Health System and Williamsport Regional Medical

Center (“Appellees”). Appellants contend the trial court erred by classifying

their premises liability claims against Appellees as professional negligence

claims requiring medical expert testimony.      Following careful review, we

affirm in part, vacate in part, and remand.
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     In Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005), this Court

explained our standard and scope of review from the grant of summary

judgment as follows:

     Summary judgment properly is granted after the close of the
     relevant pleadings “whenever there is no genuine issue of any
     material fact as to a necessary element of the cause of action or
     defense which could be established by additional discovery or
     expert report” and the moving party is entitled to judgment as a
     matter of law. Pa.R.C.P. 1035.2(1). The standard of our review
     of an order granting or denying a motion for summary judgment
     pursuant to Rule 1035.2 is well established. In reviewing an
     order granting summary judgment, an appellate court must
     examine the record in the light most favorable to the non-
     moving party. We will reverse only if there has been an error of
     law or a clear abuse of discretion. Our scope of review is plenary
     with regard to questions of law. However, we are not bound by
     the trial court’s conclusions of law and, instead, we may reach
     our own inferences and conclusions.

Id. at 566 (quotations and citations omitted).

     Examining the record in the light most favorable to Appellants—and in

particular the pleadings and Charles’ deposition, we can summarize the

underlying facts as follows. Charles was born on June 25, 1954, and was 57

years old on March 20, 2012, the date he fell at the Williamsport Regional

Medical Center, a facility that housed a physical therapy department.

Charles had a medical history that included myriad conditions and

procedures, including bariatric surgeries and the placement of stents after

suffering heart attacks. Most recently, he had undergone amputation of his

great right toe in December 2011. He had been off his feet the majority of




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the time after his December 2011 surgery and was at the medical center’s

physical therapy department for evaluation prior to his fall.

      Charles acknowledged he was tired at the end of his evaluation. The

therapist offered him a wheelchair to get to his car but he declined,

indicating he just wanted to rest for a few minutes.           When he left the

department, he walked with a cane as he and Patricia headed toward the

exit of the building, following the same path they took upon arrival. When

he came upon an automated mat that opened double doors in the hallway,

      half of my shoe was on the metal [edge of the mat] and half of it
      was on the mat. . . . [W]hen my right foot . . . came down and
      hit the mat, the front of my shoe, it stuck. . . . [W]hen my foot
      stopped, I guess my weight carried me forward and I lost my
      balance and I threw my cane out, . . . and I spun around and
      then fell backwards.

Deposition of Charles Galeano, 7/24/15, at 142-144. As a result of the fall,

Charles sustained injuries including a fractured left ankle.

      Appellants initiated an action against Appellees and filed a complaint

titled “Civil Action – Complaint (Premises Liability).” Complaint, 5/27/14, at

1. After identifying the parties and alleging that both Appellees were health

care providers, Appellants set forth factual allegations concerning the events

of March 20, 2012, including references to Charles’ compromised physical

condition. Id. at ¶¶ 1-25. Appellants then alleged:

      26. [Appellees] were negligent and careless in:

         (a)   Failing to take steps to correct the hazardous
               conditions resulting from the utilization of flooring


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                 materials with        a   significant   disparity   in   skid
                 resistance;

           (b)   Failing to conduct inspections of the flooring area in
                 the corridor of the facility leading to the entrance;

           (c)   Failing to warn of the dangerous conditions of the
                 flooring;

           (d)   Failing to recognize that [Charles] required
                 assistance and support to safely exit the facility; and

           (e)   Failing to properly facilitate the required wheelchair
                 escort and/or assistance for [Charles] to safely exit
                 the facility.

Id. at ¶ 26.      In Count I of the complaint, Charles claimed he suffered

injuries and damages “[a]s a direct result of the aforesaid negligence and

carelessness of [Appellees].” Id. at ¶¶ 27-32. In Count II, Patricia asserted

a consortium claim against Appellees.            Id. at ¶¶ 33-36.     Appellants then

presented Count IV1 in which they alleged the following claims titled

“Corporate Liability” against Appellees:

        43. [Appellees] were careless and negligent and failed in their
        duty to provide safety to [Charles] as follows:

           (a)   Failing to properly select, place, train and supervise
                 personnel with respect to safety in their facilities;
                 and

           (b)   Failing to establish and implement proper protocols
                 and to ensure the safety of patients in their facilities,
                 including the use of wheelchairs and other
                 transportation assistance.

____________________________________________


1
    There is no Count III in the Complaint.



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Id. at ¶¶ 37-43.

        On June 4, 2014, Appellees filed an answer to the complaint denying

Appellants’ assertions of negligence and raising various affirmative defenses.

Appellants filed their reply to new matter on June 27, 2014.

        The trial court issued a number of scheduling orders and granted

requests for continuance, the last of which placed the case on the June 2016

trial list.   Application for Continuance and Order, 1/25/16, at 1-2.        By

separate order of the same date, deadlines for motions in limine and expert

reports were established and a pre-trial conference was set for April 26.

Order, 1/25/16, at 1.        On April 25, 2016, Appellees filed their motion for

summary judgment asserting, for the first time, that Appellants’ claims were

medical negligence claims and that Appellants’ expert, a professional civil

engineer, was not qualified to testify as to the applicable standard of care

and medical causation.         Alternatively, Appellees sought preclusion of the

expert’s testimony. On the same day, Appellees filed, for the first time, a

notice of intention to enter judgment of non pros for failure to file a

certificate of merit pursuant to Pa.R.C.P. 1042.3.2

        The trial court heard oral argument on May 9, 2016, and granted

summary judgment by order entered on May 12, 2016.               The trial court

concluded that Appellants’ claims sounded in professional negligence; that

____________________________________________


2
    See n. 4, infra.



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Appellants’ expert was not qualified to offer opinions relating to medical

judgment or causation; and that Appellants could not prove their case

without a medical expert. Trial Court Opinion, 5/12/16, at 2-4.

      Appellants filed a motion for reconsideration of the May 12, 2016

order.    By order entered July 6, 2016, the trial court denied the

reconsideration motion. This timely appeal followed. The trial court did not

order the filing of a Rule 1925(b) statement of errors complained of on

appeal but did file a Rule 1925(a) opinion on July 20, 2016. In that opinion,

the trial court indicated that the reasons for its grant of summary judgment

were set forth in its May 12, 2016 opinion.

      In this appeal, Appellants ask us to consider three issues:

      1. Whether the Complaint of Appellants[] stated a premises
         liability cause of action against Appellees[], separate and
         apart from a claim of medical malpractice, based upon the
         hazard presented by an automatic door mat?

      2. Whether premises liability expert, Joseph Graci, P.E., was
         qualified to testify that the automatic door mat which
         [Charles] encountered presented a hazard to persons with
         ambulatory impairments which caused his fall?

      3. Whether the interests of justice required the [c]ourt to
         consider Appellees’ Summary Judgment Motion filed late
         when the issue presented could have and should have been
         raised earlier?

Appellants’ Brief at 4.

      As reflected above, we view the record in the light most favorable to

Appellants and will reverse only if there has been an error of law or clear

abuse of discretion.      Grossman, 868 A.2d at 566.    However, we are not

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bound by the trial court’s conclusions of law and may reach our own

inferences and conclusions. Id.

      In their first two issues, Appellants argue that their complaint stated a

premises liability claim, separate from a claim of medical negligence, and

that Appellants’ engineering expert was qualified to testify that the mat

presented a hazard to Charles and individuals similarly situated. Appellants

contend that the trial court erred in its conclusion that Appellants raised

medical negligence claims and that their expert was unqualified to testify.

They contend the trial court’s grant of summary judgment on those grounds

is unsupported by the allegations in the complaint and that the trial court’s

reliance on this Court’s decision in Grossman is misplaced.

      In Grossman, the plaintiff’s decedent was injured when she fell from

an examining table while her doctor was out of the room.          Id. at 564.

There, the doctor who knew of his patient’s history of diabetes and dizziness,

left the room after directing the woman to get on the exam table. Id. The

trial court determined the plaintiff presented a medical malpractice claim and

granted summary judgment in favor of the physician for lack of expert

testimony to support causation. Id. at 565. On appeal, the plaintiff argued

the trial court erred in granting summary judgment because her expert’s

testimony supported the plaintiff’s negligence claims and medical expert

testimony was not required. Id. We explained:




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     Plaintiff argued to the trial court . . . that the case was one of
     ordinary negligence, not medical malpractice. The trial court,
     however, treated the case as a medical malpractice case. . . .
     Although the basic elements of both ordinary negligence and
     medical malpractice are the same, medical malpractice has
     distinguishing characteristics.     Medical malpractice is further
     defined as the “unwarranted departure from generally accepted
     standards of medical practice resulting in injury to a patient,
     including all liability-producing conduct arising from the rendition
     of professional medical services.” Toogood[ v. Owen J. Rogal,
     D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).] The underlying
     elements of negligence in a medical malpractice claim, mirroring
     those of a basic negligence claim, see Estate of Swift [by
     Swift v. Northeastern Hosp., 456 Pa. Super. 330, 690 A.2d
     719, 722 (1997)], are more specifically described as 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
     the harm.” Toogood, 824 A.2d at 1145 (quoting Hightower-
     Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997)).

     One of the most distinguishing features of a medical malpractice
     suit is, in most cases, the need for expert testimony, which may
     be necessary to elucidate complex medical issues to a jury of
     laypersons. In other words, “[b]ecause the negligence of a
     physician encompasses matters not within the ordinary
     knowledge and experience of laypersons[,] a medical
     malpractice plaintiff must present expert testimony to establish
     the applicable standard of care, the deviation from that
     standard, causation and the extent of the injury.” Id.

Grossman, 868 A.2d at 566-67.

     Before addressing the need for expert testimony, this Court in

Grossman first considered whether the case should be characterized as one

of ordinary negligence or medical malpractice. In absence of guidance from

our Supreme Court outlining factors to be weighed when determining

whether a complaint sounds in ordinary negligence or medical malpractice,

the Court indicated that the averments of the complaint would determine the

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J-A03024-17


theory asserted.   Id. at 568. The Court looked to case law from New York

and Michigan, two jurisdictions that have addressed the ordinary negligence

vs. medical malpractice issue, and noted that “[i]n describing the difference

between the two types of claims, certain New York state courts, for example,

have indicated that conduct is considered to be malpractice when it

constitutes medical treatment, that is, when it involves diagnosis, care and

treatment by licensed medical professionals.”          Id. at 569 (internal

quotations, brackets and ellipses omitted).

      Although our Supreme Court has not considered the “ordinary

negligence vs. medical malpractice” issue, the issue was addressed at length

in a dissenting opinion authored by Justice Todd in Ditch v. Waynesboro

Hospital, 17 A.3d 310 (Pa. 2011) (Todd, J. dissenting).         In Ditch, the

majority issued a per curiam order affirming this Court’s ruling, which in turn

affirmed the trial court’s order entering judgment of non pros for failure to

file a certificate of merit in a case involving claims on behalf of a stroke

victim who fell out of her hospital bed and later died. Id. at 311-12. The

appellant unsuccessfully argued that her complaint asserted ordinary

negligence rather than medical negligence against a hospital. Id. at 312-13.

      In her dissent, Justice Todd expressed her belief that the appellant’s

claims were garden-variety negligence claims, not medical negligence claims

requiring a certificate of merit.   Justice Todd noted that by affirming this

Court’s ruling in a per curiam order, “the Court declines to confront and


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resolve a significant issue of statewide importance that has not been

addressed by our Court[, i.e.,] the question of how to define the distinction

between ordinary negligence and professional negligence in the health care

setting.”   Id. at 310 (Todd, J., dissenting).     Justice Todd embarked on a

review of cases from our Court that have produced inconsistent results, as

well as a review of cases from a multitude of our sister states, concluding

that:

        [T]he proper approach in discerning whether a claim alleges a
        deviation from “an acceptable professional standard” in the
        health care setting—i.e., whether a cause of action sounds in
        ordinary negligence or professional negligence—should include
        an analysis of whether the actions complained of involve
        technical complexity or esoteric issues involving medical
        judgment beyond the realm of common knowledge and
        experience, or are matters of nonmedical, administrative,
        ministerial, or routine service, which a jury is competent to
        determine.

Id. at 318.3

____________________________________________


3
 Justice Todd surveyed nearly two dozen cases, two of which are cases from
our Court, that we include here for illustrative purposes, noting:

        Our Court has not spoken to this important issue in the discrete
        area of health care, generally, or within the ambit of hospital
        injuries in particular.      Our lower courts, however, have
        addressed the issue in the medical context, but have come to
        differing results. Compare . . . Swift v. Northeastern Hosp.
        of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997)
        (determining plaintiff’s claim that she slipped and fell on water
        on floor in emergency room restroom raised claim of premises
        liability and not malpractice) with . . . Grossman v. Barke, 868
        A.2d 561 (Pa. Super. 2005) (plaintiff, who suffered injuries due
        to fall, after physician directed her to get on examination table,
(Footnote Continued Next Page)


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        Although our Supreme Court has not addressed the “ordinary vs.

professional negligence” issue in the context of health care providers, it has

addressed similar situations in the context of whether a Pa.R.C.P. 1042.3

certificate of merit is required.4 For instance, in Merlini ex rel. Merlini v.

                       _______________________
(Footnote Continued)

        then left the room, asserted liability based upon defendant’s
        professional knowledge, as a physician, and intended to proceed
        on medical malpractice theory of negligence).



Id. at 316 (additional citations omitted).

4
    Pa.R.C.P. 1042.3. Certificate of Merit provides, in pertinent part:

        (a)   In any action based upon an allegation that a licensed
              professional deviated from an acceptable professional
              standard, the attorney for the plaintiff, or the plaintiff if
              not represented, shall file with the complaint or within
              sixty days after the filing of the complaint, a certificate of
              merit signed by the attorney or party that either

        (1)   an appropriate licensed professional has supplied a written
              statement that there exists a reasonable probability that
              the care, skill or knowledge exercised or exhibited in the
              treatment, practice or work that is the subject of the
              complaint, fell outside acceptable professional standards
              and that such conduct was a cause in bringing about the
              harm, or
        (2)   the claim that the defendant deviated from an acceptable
              professional standard is based solely on allegations that
              other licensed professionals for whom this defendant is
              responsible deviated from an acceptable professional
              standard, or
        (3)   expert testimony of an appropriate licensed professional is
              unnecessary for prosecution of the claim.




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Gallitzin Water Authority, 980 A.2d 502 (Pa. 2009), the trial court

entered a judgment of non pros against Merlini in her action against a water

authority, engineers, and contractors who constructed a water line on her

property without a right-of-way, easement, or permission.          Our Court

reversed, finding that Merlini’s complaint alleged ordinary negligence rather

than a professional liability claim and, therefore, no Rule 1042.3 certificate

of merit was necessary. Id. at 504. “[W]hether there was a breach of that

duty did not require professional judgment, but only an understanding of the

location of Merlini's property and of any applicable right-of-way or

easements intersecting the installed water line.” Merlini ex rel. Merlini v.

Gallitzin Water Authority, 934 A.2d 100, 106 (Pa. Super. 2007).

      Our Supreme Court affirmed, agreeing with this Court’s determination

that Merlini’s complaint sounded in ordinary negligence and noting:

      As the Superior Court found, appellant’s actions occurred while it
      performed professional services; however, the issue Merlini
      raised was not one of professional judgment beyond the scope of
      common knowledge and experience. Merlini asserted a claim of
      basic negligent trespass—this is not a breach of a duty owed by
      a professional, but a breach of a duty owed by any third party
      entering upon the property of another. As the Superior Court
      acknowledged, expert testimony may be required to clarify the
      property rights as established through state, county, and
      municipal records; however, once that factual issue is clarified,
      whether appellant trespassed will not require further expert
      elucidation.

Merlini, 980 A.2d at 507-08.

      Our review of Appellants’ complaint reveals that, with the exception of

the corporate liability claims in Count IV, Appellants’ claims are garden-

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variety negligence claims asserting a claim for premises liability against

Appellees relating to an automated door mat in the hallway of Appellees’

medical facility. As Appellants correctly indicate, Charles’ fall occurred as he

was making his way toward the building’s exit, not in the course of

treatment or any professional relationship with Appellees. Appellants’ Brief

at 17.   “The professional relationship between [Charles] and [his physical

therapist] occurred within the course of the physical therapy evaluation

which had been completed.”         Id.    “Whether the automatic door mat

presented a hazard was a premises liability question which was addressed by

a premises liability expert in support of the premises liability claims made in

the premises liability Complaint.”   Id. at 17-18.   As such, we believe this

case is more akin to Swift, where the plaintiff slipped and fell in the

emergency room restroom, than Grossman, where the plaintiff fell from an

exam table and was injured in the course of treatment.

      We conclude the trial court erred in its conclusion that Appellants’

claims were grounded in medical malpractice and required medical expert

testimony to establish causation.        Whether Appellees owed a duty to

Charles, a business invitee, and whether Appellees breached that duty

causing harm resulting in damages to Appellants, are not questions beyond

the realm of common knowledge and experience that a jury is competent to

determine. We conclude the trial court erred in determining that Appellants’

premises liability claims were medical negligence claims requiring medical


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expert testimony. Therefore, we vacate the trial court’s grant of summary

judgment in part and remand for further proceedings on Appellants’

premises liability action. To the extent Appellants’ expert can offer expert

testimony regarding the automated mat and any risks inherent in its

composition or operation, his testimony should be permitted. However, that

does not give carte blanche to Appellants’ engineering expert to offer

opinions on medical causation, a subject area beyond the scope of his

expertise. We agree with Appellees’ assertion that Appellants’ engineering

expert “is not qualified to offer an expert opinion on the standard of care

applicable to a licensed health care provider or whether any breach of such a

standard caused harm to a patient.” Appellees’ Brief at 34 (citing 40 P.S.

§ 1303.512(b) (relating to expert qualifications) (emphasis in original)).

      We further conclude that the claims raised in Count IV of Appellants’

complaint are claims of corporate liability requiring a certificate of merit and

expert testimony unless the medical provider’s negligence is obvious. See,

e.g., Rostock v. Anzalone, 904 A.2d 943, 945 (Pa. Super. 2006) (citing

Grossman, 868 A.2d at 567). Therefore, we affirm the grant of summary

judgment with respect to County IV of Appellants’ complaint only.

      In light of our disposition of Appellants’ first two issues, no discussion

of the third issue, relating to timeliness of Appellees’ motion, is necessary.

      Order affirmed with respect to Appellants’ corporate liability claims

(Count IV). Order vacated with respect to the remaining premises liability


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claims alleged in Appellants’ complaint.     Case remanded for further

proceedings consistent with this Memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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