J-A30009-17

                            2018 Pa Super 195

 LAURA L. MAAS, ADMINISTRATRIX          :   IN THE SUPERIOR COURT OF
 OF THE ESTATE OF LISA CHRISTINE        :        PENNSYLVANIA
 MAAS, DECEASED                         :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 UPMC PRESBYTERIAN SHADYSIDE            :   No. 185 WDA 2017
 D/B/A WESTERN PSYCHIATRIC              :
 INSTITUTE AND CLINIC; WESTERN          :
 PSYCHIATRIC INSTITUTE & CLINIC,        :
 MICHELLE BARWELL, M.D. AND             :
 WESTERN PSYCHIATRIC INSTITUTE          :
 & CLINIC ADULT COMMUNITY               :
 TREATMENT TEAM                         :
                                        :
                   Appellants           :

                  Appeal from the Order November 9, 2016
     In the Court of Common Pleas of Allegheny County Civil Division at
                            No(s): GD 09-18900


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

OPINION BY BOWES, J.:                               FILED JUNE 29, 2018

     UPMC Presbyterian Shadyside d/b/a Western Psychiatric Institute and

Clinic, Western Psychiatric Institute and Clinic (“WPIC”), Michelle Barwell,

M.D., and Western Psychiatric Institute and Clinic Adult Community Treatment

Team (“CTT”) (collectively the “UPMC Defendants”), appeal from the October
J-A30009-17


11, 2016 order denying their motion for summary judgment.1 After thorough

review, we affirm.

       The facts giving rise to this cause of action are as follows. On May 29,

2008, Terrence Andrews attacked and killed Lisa Maas, a neighbor who lived

four doors away in his Oakland apartment building. Mr. Andrews had a long

history of mental illness. He had been an inpatient at Mayview State Hospital,

where he was diagnosed with, inter alia, paranoid personality disorder and

antisocial personality disorder. He had attempted suicide on several occasions

and suffered opioid and cocaine dependence. In 2006, he was transitioned to

the CTT, and placed in a personal care home. It was at that location that

defendant Michelle Barwell, M.D., a psychiatrist who worked with the CTT, first

saw him.2




____________________________________________


1 Orders denying summary judgment are interlocutory and not immediately
appealable.    However, the UPMC Defendants filed an application for
amendment of the interlocutory order to state pursuant to 42 Pa.C.S. § 702,
that the determination involved a controlling question of law upon which there
was a substantial difference of opinion, and that an immediate appeal would
materially advance the litigation. The trial court agreed, and granted that
application. The UPMC Defendants filed a timely petition for permission to
appeal with this Court, which we granted by order dated January 30, 2017.
Thus, we have jurisdiction to entertain this appeal.

2  In her deposition, Defendant Barwell stated that she did not think Mr.
Andrews was an appropriate patient for CTT, as the program targeted patients
with schizophrenia and some bipolar disorders. Deposition Michelle Barwell,
M.D., 4/16/15, at 35-6).



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       In late 2007, Defendant Barwell and the CTT facilitated Mr. Andrews’s

move from assisted living to independent living in a private apartment

building, Hampshire Hall.3 He signed a one-year lease for Apartment 414,

with a term commencing January 2008, and moved into the apartment. His

rent was directly paid to his landlord from his social security disability income

by a payee service.        Mr. Andrews remained under the care of Defendant

Barwell, the CTT, and other caregivers at WPIC on an outpatient basis.

       Mr. Andrews did not function well in the independent environment.

Within one week of moving in, he presented to the Diagnostic Evaluation

Center, described as the emergency room (“ER”) for WPIC, and reported that

he had been experiencing homicidal ideations for two weeks towards his

neighbor. He complained that the neighbor knocked on his door in the middle

of the night to ask him stupid questions. The record of that visit noted that

Mr. Andrews’s move to independent living was a stressor. They admitted Mr.

Andrews to WPIC for a two-week stay, and, even upon discharge on January

31, 2008, he continued to complain about his housing and neighbors. 4 Mr.


____________________________________________


3 Administratrix originally commenced this action against Delta Management,
the owner of the apartment building, and Mercy Behavioral Health and
Nadeem Ahmed, M.D., as well as the UPMC Defendants, based on their
negligence for failing to warn Plaintiff’s decedent of the risk presented by Mr.
Andrews. Delta Management was dismissed on preliminary objections in the
nature of a demurrer; Administratrix voluntarily discontinued its claims
against Mercy Behavioral Health and Dr. Ahmed after discovery.

4 This and succeeding admissions were voluntary commitments pursuant to
50 P.S. § 7201, generally referred to as a voluntary 201 commitment.

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Andrews repeatedly voiced his desire to be placed in a personal care home

where he would have more support from caregivers on site.

      Mr. Andrews presented again to WPIC’s ER on March 5, 2008, reporting

homicidal feelings toward others. He stated that he kept himself locked up so

that he would not kill other people. Although it was determined at that time

that he should be placed in a personal care home, he was admitted to WPIC

for three weeks, and he subsequently returned to his apartment on April 1,

2008. Four days later, he presented to WPIC following an attempted suicide,

with suicidal and homicidal ideations, and he was admitted to UPMC Braddock.

After two weeks of in-patient treatment, he was discharged to his home.

      In May, Mr. Andrews made a number of visits to the ER and telephone

contacts with CTT. On May 9, 2008, Mr. Andrews went to the ER and reported

homicidal ideation towards his neighbor and disclosed his plan to stab the

neighbor with scissors. A caseworker was dispatched to the ER at WPIC to

persuade him to return home, and he was not admitted. One day later, he

called CTT and reported that he was still having homicidal ideations. Within

twenty-four hours, he presented to the emergency room at Mercy Behavioral

Health, and reported an altercation that had left him angry and depressed.

There was an argument, which turned physical, and Mr. Andrews reported that

a man he described as his next-door neighbor’s boyfriend/friend of a woman

who lives nearby hit him on his left arm with a baseball bat. He told Mercy

Behavioral Health personnel that he wanted to kill himself and kill this person.


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It is expressly noted in the psychiatric evaluation from that visit that Mr.

Andrews did not identify the person by name or location. He was admitted to

that facility for three days, where he was kept on a routine watch as he had

contracted for safety.

      Mr. Andrews was evaluated by Defendant Barwell on May 15, 2008, and

she described his condition as stable. Nonetheless, Mr. Andrews went to the

ER at WPIC on May 18, 2008, describing a plan “to kill the next-door neighbor

and everyone” and “eat his pills.” Plaintiff’s Brief in Opposition to Summary

Judgment, 10/4/16, Exhibit 30 at 1. Mr. Andrews told them that his neighbor

hit him with a baseball bat because he let the neighbor’s battered girlfriend

stay at his place. Mr. Andrews reported that he was carrying scissors around

with him, but a search of his belongings did not reveal scissors. They made

the decision not to admit him because, although he had frequently reported

suicidal and homicidal ideations, he previously had not followed through with

any such threats.    Although Mr. Andrews was upset and insisted that he

needed to be admitted, he was sent home.

      On May 19, 2008, Mr. Andrews went to the CTT offices.          Shortly

thereafter, WPIC caregivers gave Mr. Andrews a behavior plan that would

reward him with a weekly bus pass and a food voucher if he did not present

to any emergency room for two weeks. He called CTT the next day and asked

to go to a personal care home. On May 22, he called again and told them he

needed to be admitted.     A case management note dated May 23, 2008,


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indicated that William Brown of the CTT made phone calls to determine bed

availability at personal care homes, and that he discussed the options with Mr.

Andrews. On May 24, Mr. Andrews called the CTT complaining that he lacked

food and toilet paper. Mr. Andrews hung up after he was reminded that he

had to go two weeks without ER visits in order to get the voucher.

      Despite the fact that he would lose the incentives, Mr. Andrews went to

the ER at WPIC on May 25, 2008, complaining that he was hearing voices and

hallucinating. He was evaluated by a psychiatrist. He reported that he had

not been taking his medications for three weeks and that he had both suicidal

and homicidal ideations. The voices were bothering him and causing him to

rave and scream in his apartment. He asked to be admitted. Again, a case

manager intervened, and dissuaded him from being admitted. The plan was

to deliver his outpatient medications to him the next morning, and to move

him to a personal care home in thirty-six hours. After receiving medication

for agitation, Mr. Andrews was sent home in a cab.

      Four days later, Pittsburgh Police responded to a call of a possible

domestic dispute at Hampshire Hall.      The officers observed Mr. Andrews,

covered in blood, leaving the fourth floor apartment of eighteen-year-old Lisa

Maas, a Pennsylvania Culinary Institute student. Ms. Maas was dead due to

multiple stab wounds from scissors. Mr. Andrews told police that he did it,

and asked to be taken to jail.    He also informed the officers that he told

Defendant Barwell to put him in WPIC because he was going to kill someone,


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and that the medication was not working.           He conveyed to police that he

disliked Lisa Maas because “she always looked down at him and treated him

like dirt.”   Plaintiff’s Brief in Opposition to Motion for Summary Judgment,

10/11/16, at Exhibit 37 (Affidavit of City of Pittsburgh Police Officer George

Satler, 5/30/08).

      Laura     L.   Maas,   Administratrix   of   her   daughter   Lisa’s   estate

(“Administratrix”), filed a wrongful death and survival action against Delta

Management, the owner of the apartment building, Mercy Behavioral Health,

Nadeem Ahmed, M.D., and the UPMC Defendants herein, based on their

negligent failure to warn her deceased daughter of the risk presented by Mr.

Andrews. Delta Management was dismissed on a demurrer; Administratrix

voluntarily discontinued her claims against Mercy Behavioral and Dr. Ahmed

following discovery.    Administratrix’s claims against the UPMC Defendants

proceeded. She alleged that the UPMC Defendants had a duty to attempt to

discover the identity of the neighbor or neighbors who were the subject of Mr.

Andrews’s threat, and to warn them.

      The UPMC Defendants moved for summary judgment, alleging that

mental health care professionals only have a duty to warn specifically

identified persons, not a nebulous group of individuals.            Administratrix

countered that the victim’s name was not required where the potential victims,

Mr. Andrews’s neighbors, were readily ascertainable. The trial court denied

the UPMC Defendants’ motion for summary judgment, concluding that the


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UPMC Defendants had a duty to warn on the facts presented.            The UPMC

Defendants obtained the requisite certification and permission to appeal that

interlocutory order, and they present one question for our review:

      Whether the [t]rial [c]ourt’s misapplication of Emerich v.
      Philadelphia Center for Human Development, Inc., 720 A.2d
      1032 (Pa. 1998), improperly imposed on mental health care
      providers a duty to warn about vague, non-specific, and non-
      imminent expressions of homicidal ideations made by Mr.
      Andrews?

Appellants’ brief at 4.

      Summary judgment is proper

      (1) 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, or

      (2) 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.

Pa.R.C.P. 1035.2.

      In reviewing the grant or denial of a motion for summary judgment,

      [w]e view the record in the light most favorable to the nonmoving
      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 a judgment as a matter
      of law will summary judgment be entered. Our scope of review of
      a trial court's order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court’s order
      will be reversed only where it is established that the court
      committed an error of law or abused its discretion.




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Abrams v. Pneumo Abex Corp., 981 A.2d 198, 203 (Pa. 2009); see also

State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 925 (Pa.Super. 2012)

(holding we may disturb the trial court’s determination only for an error of law

or abuse of discretion).

      The UPMC Defendants contend that they had no duty to warn on the

facts herein. “Whether a duty of care exists is a question of law assigned

initially to the trial court and subject to plenary review on appeal.” Walters

v. UPMC Presbyterian Shadyside, 144 A.3d 104, 113 (Pa.Super. 2016)

(citing Sharpe v. St. Luke's Hosp., 821 A.2d 1215, 1219 (Pa. 2003);

Winschel v. Jain, 925 A.2d 782, 796 (Pa.Super. 2007)). “Where, however,

the plaintiff makes a prima facie showing of a duty, the applicable standard of

care, whether it was breached, and whether the breach was a cause in fact of

the injury are questions of fact for the jury.” Walters, supra at 113 (citing

K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080, 1094 (Pa.Super. 2015)).

      The UPMC Defendants cite Emerich v. Philadelphia Center for

Human Development, Inc., 720 A.2d 1032 (Pa. 1998), for the proposition

that Pennsylvania law only imposes a duty on mental health professionals to

warn third parties of the danger posed by a mental health patient in limited

circumstances, which they contend are not present here.        Specifically, the

duty arises where

      (1)   a special relationship exists between the mental health
            professional and the patient;




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      (2)      the patient has communicated to the mental health
               professional a specific and immediate threat of serious
               bodily injury;

      (3)      the patient's threat is against a specifically identified or
               readily identifiable third party; and

      (4)      the mental health professional determines, or should
               determine, that the patient presents a serious danger of
               violence to the third party.

Id. at 1043.

      The dispute herein primarily involves the third prong.          The UPMC

Defendants contend that since no potential victim was identified by name,

they had no duty to warn.        They charge the trial court with misapplying

Emerich, and viewing duty in terms of foreseeable victims rather than

identifiable victims. They compare the trial court’s approach to a “zone of

danger” analysis, and allege that the court imposed a new duty upon mental

health professionals to warn an amorphous and indiscriminate group of

individuals.

      The UPMC Defendants acknowledge that the Emerich Court relied upon

Tarasoff v. Regents of Univ. of California, 551 P.2d 334 (Cal. 1976), in

imposing a duty to warn on the part of mental health professionals. Although

in that case the targeted victim was not identified, i.e., named, they argue

that there was no doubt as to whom the patient intended to kill. The UPMC

Defendants contend that the instant case is more akin to Thompson v.

County of Alameda, 614 P.2d 728 (Cal. 1980), where a violent juvenile

offender told someone prior to his release from a county institution that he

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would kill a young child in the neighborhood.      Within a day, he killed the

plaintiff’s young son, and the plaintiff alleged that the county was negligent

for failing to warn “parents of young children within the immediate vicinity.”

Id. at 730. The trial court sustained a demurrer, finding no duty to warn, and

the Supreme Court of California ultimately agreed. Absent “specifically known

and designated individuals[,]” the court found that the potential targets

consisted of a “large amorphous public group[,]” and that any warning would

have been general and covered a broad swath of the population. Id. at 735.

The Thompson Court reasoned that, “warnings to the general public would

‘produce a cacophony of warnings that by reason of their sheer volume would

add little to the effective protection of the public[,]’” which the Emerich Court

cited favorably. Id.

      The UPMC Defendants also direct our attention to our Supreme Court’s

decision in Seebold v. Prison Health Services, Inc., 57 A.3d 1232, 1246

(Pa. 2012), where the Court voiced its reluctance to impose new duties upon

medical professionals and expressly cabined its holding in Emerich. Therein,

the Court found no duty on the part of prison medical providers to warn,

protect, or rescue prison employees at risk from inmates with a possible

communicable disease unless the health care provider played a role in creating




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the danger.5 The UPMC Defendants allege that the trial court’s finding that

the fourth floor tenants of Hampshire Hall were a readily identifiable group of

people to whom the defendants owed a duty to warn violated the public policy

expressed in Seebold and imposes liability without any reasonable limit.

       Finally, the UPMC Defendants allege that the trial court failed to discuss

the second prong of the test, i.e., the specificity and immediacy of Mr.

Andrews’s threats.        They characterize Mr. Andrews’s threats as “vague

homicidal ideations lacking any specific and immediate threat of serious bodily

injury.” Appellants’ brief at 26.

       Administratrix counters that the trial court correctly applied the existing

duty recognized in Emerich without expanding its reach.             Mr. Andrews

articulated a specific and immediate serious threat against a neighbor, an

individual who was identifiable as a part of a small group.        Administratrix

contends that the potential victim need not be a person identified by name.

The “readily identifiable” language would have no meaning, she argues, if it

did not contemplate situations such as the one herein where the target of the

threat is not named, but discernible.

       Administratrix finds further support for her position in the Code of Ethics

of Pennsylvania’s State Board of Psychology, section 41.61, which was relied



____________________________________________


5  Although the UPMC Defendants cite mental health policy considerations as
the basis for the Supreme Court’s decision in Seebold, that case did not
involve mental health professionals. See Appellants’ brief at 28.

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upon by the Emerich Court in defining the duty. That provision states that

psychologists should take “reasonable measures to prevent harm when a

client has expressed a serious threat or intent to kill or seriously injure an

identified or readily identifiable person or group of people and when the

psychologist determines that the client is likely to carry out the threat or

intent.” 49 Pa.Code § 41.61 (emphasis supplied). The trial court herein was

persuaded that the duty to warn need not be limited to one person, but could

include the members of an identifiable group of persons.        The jury could

reasonably conclude that the tenants residing on the fourth floor of Hampshire

Hall were a readily identifiable group of people to whom a duty to warn was

owed. Trial Court Opinion, 5/23/17, at 10.

      Administratrix also faults the UPMC Defendants for failing to attempt to

elicit identifying information from Mr. Andrews about his intended victim. She

directs our attention to Mr. Andrews’s psychiatric records where there is no

indication that the UPMC Defendants probed for specific information on his

target.   Although employees of the UPMC Defendants offered deposition

testimony to the effect that they attempted to elicit such information, it was

not documented in the medical records.

      Finally, Administratrix contends the trial court properly considered the

specificity and immediacy of the threats.      The trial court chronologically

detailed Mr. Andrews’s growing dissatisfaction with his living situation and his

expressed intent to kill his neighbor or neighbors. See Trial Court Opinion,


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supra at 9-10. Over the course of several months, his visits to WPIC became

more frequent, his threats more specific. By May 2008, he had a plan to stab

his neighbor with scissors, and he communicated that specific plan to the

UPMC Defendants. Just weeks later, Mr. Andrews reported to them that he

was carrying scissors for that purpose. Thus, Mr. Andrews’s vague threats

evolved into a specific plan to stab his neighbor with scissors, and he armed

himself with the stated means to do so.       This was the precise method he

employed to kill Lisa Maas.

      The trial court relied upon Emerich and Althaus ex rel Althaus v.

Cohen, 756 A.2d 1166, 1171 (Pa. 2000), in finding a duty on the facts herein.

The court rejected the UPMC Defendants’ position that the potential victim had

to be identified by name. The trial court found that, although what constitutes

an identifiable person for purposes of a mental health professional’s duty to

warn has not been addressed in this Commonwealth, the Code of Ethics for

Psychologists contemplates a duty to reveal confidential information to more

than a specifically named individual. It found that a reasonable jury could find

that “the tenants residing on Andrews’[s] floor in Hampshire Hall were a

readily identifiable group of people to whom [the UPMC] [D]efendants owed a

duty to warn.” Trial Court Opinion, 5/23/17, at 10-11.

      The following principles inform our review.           In Emerich, the

Pennsylvania Supreme Court recognized that, while “there is generally no duty

to control the conduct of a third party, where the defendant stands in a special


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relationship to the victim or some other party, the victim deserves protection.”

Emerich, supra at 1037. That special relationship between the mental health

professional and the patient was the basis for an exception and imposition of

an affirmative duty to warn. The Court went on to explain that the duty arises

when a mental health professional determines that her “patient has

communicated to the professional a specific and immediate threat of serious

bodily injury against a specifically identified or readily identifiable third party

and when the professional determines, or should determine under the

standards of the mental health profession, that his patient presents a serious

danger of violence to the third party.” 6 Id. at 1043

       In arriving at its holding, our High Court considered the public policy

concerns in protecting persons from serious harm, the confidential nature of

therapist-patient communications, the difficulty in predicting when or if

behavior will become violent, and the policy of treating patients in the least

restrictive environment.         It concluded, based upon a balancing of the

aforementioned factors that a duty should be imposed, but that it should not

be extended to the public at large. The Supreme Court held in Emerich that

a mental health professional has “a duty to exercise reasonable care to protect



____________________________________________


6  The Pennsylvania Supreme Court also recognized that the special
relationship between a mental health provider and an outpatient, in addition
to serving as a foundation for a duty to warn a third party, may “support a
broader duty to protect or commit to inpatient treatment.” Emerich, 720
A.2d at 1044 n.13.

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by warning a third party” of the danger posed by a patient. Id. at 1043. That

would include the situation where a patient communicated an “[i]mmediate,

known and serious risk of potentially lethal harm” regarding a “specially

identified or readily identifiable victim.” Id. at 1039-41.

      It is undisputed that Mr. Andrews did not verbalize a specific threat

against Lisa Maas or any other named individual. However, he communicated

to the UPMC Defendants his intent to kill his neighbor and his next-door

neighbor. He had a plan. He was going to use scissors to stab his neighbor.

Shortly before the tragic events herein, he told the UPMC Defendants that he

was carrying scissors on his person for that purpose.

      Preliminarily, we note that in Tarasoff, the seminal case, a threat to kill

communicated to the therapist two months before the patient acted on it was

deemed to be an immediate threat. The patient did not identify his victim,

but from the context of the threat, the therapist could ascertain her identity.

We find that the duty to warn exists where the target is identifiable, not just

identified by name, and that mental health professionals must use reasonable

efforts to identify the victim. To give any other interpretation to our Supreme

Court’s holding in Emerich would negate the meaning of the “readily

identifiable” language entirely. Thus, to the extent that the UPMC Defendants

contend that the intended target must be named, we reject that position.

      Nor is the duty to warn limited to one individual.      The duty to warn

recognized in Emerich may extend to individuals who are readily identifiable


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because they are members of a group. We are persuaded by the analysis of

then-Judge, now-Justice Wecht, when he overruled Mercy Behavioral Health’s

preliminary objection in the nature of a demurrer at an earlier stage of this

litigation.   He acknowledged that he found “no case law stating that the

‘readily identifiable’ third party can be a group, but also none to say it cannot

be.” Memorandum, 7/19/11, at 3. He went on to hypothesize that if a patient

threatened to kill people in his workplace, “[t]hat would be a readily

identifiable group whose members would be in serious danger[,]” and

[a]rguably, a mental health provider would have a duty to warn.” Id. In his

view, the facts alleged herein did not present a “bigger leap.” Id.

       Mr. Andrews expressly communicated threats to kill his “neighbor,” but

did not identify, by name or description, the specific neighbor. He threatened

to kill an unidentified individual who was a member of an identifiable group of

approximately twenty people. The question is whether the UPMC Defendants

had a duty to warn the potential targets, i.e., the fourth floor tenants of

Hampshire Hall who were Mr. Andrews’s neighbors. Unlike the threat to all of

the “young children in the neighborhood” in Thompson, which we agree was

a large and amorphous public group, the threat herein was directed at a

member of a small, distinct, and identifiable group.

       In this case, the UPMC Defendants knew where Mr. Andrews lived. In

fact, they assisted him in securing his Hampshire Hall apartment. Practically

speaking, the identities of Mr. Andrews’s fourth floor neighbors could be


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readily ascertained from the building management in order to communicate a

reasonable warning. Alternatively, the proximity of their apartments to Mr.

Andrews’s apartment made it possible to warn these individuals even without

knowing their names.       Moreover, the group was small enough that a

reasonable warning would not “produce a cacophony of warnings” by their

volume. Thompson, supra at 735. Hence, we find the facts herein to be

more akin to Emerich and Tarasoff, where a duty to warn was imposed.

      The UPMC Defendants’ reliance upon Seebold misses the mark herein.

In that case, the Supreme Court addressed, inter alia, whether Prison Health

Services (“PHS”), a contractor providing medical care to prison inmates, had

a duty at common law to warn specific corrections officers that a particular

inmate had a communicable disease.             Under the law applicable in

communicable disease cases, the physician’s duty to advise and warn

extended solely to his patient; the physician had no duty to identify, seek out,

or advise third-party non-patients. See DiMarco v. Lynch Homes-Chester

County, Inc., 583 A.2d 422 (Pa. 1990) (recognizing that physician owed a

duty of care to patient’s sexual partner to properly advise patient of the risks

of contracting hepatitis), overruled in part by Seebold, supra; Troxel v. A.I.

Dupont Inst. (Appeal of Browngoehl), 636 A.2d 1179 (Pa.Super. 1994)

(finding no liability on the part of physician to third party who contracted

cytomeglovirus from his patient where the physician properly advised his

patient about its communicability). The Seebold Court noted that a duty to


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warn a third party had only been imposed once in a medical context, in

Emerich, and specifically, to a mental health professional. Even then, the

duty to warn extended only “to an identified or readily identifiable victim whom

the patient had targeted.” Emerich, supra at 1041. The Court declined to

impose “a new, affirmative, common-law duty in tort on the part of physicians

to undertake third-party interventions in a prison setting,” without “a broader

policy assessment.” 7 Seebold, supra at 1250. We find the facts and policy

considerations in Seebold to be vastly different from those identified and

assessed by our High Court in Emerich.

       Finally, we find no merit in the UPMC Defendants’ claim that the trial

court failed to consider whether Administratrix demonstrated that Mr.

Andrews communicated to them a specific and immediate threat of serious

bodily injury. The court summarized Mr. Andrews’s threats to kill his neighbor,

which escalated in frequency and specificity over time. The immediacy of the

threat can be inferred from the fact that the UPMC Defendants decided to

remove Mr. Andrews and place him in a personal care home “within thirty-six

hours,” at the precise time Mr. Andrews unveiled his specific plan to stab his

neighbor with scissors, and revealed that he was carrying around scissors for


____________________________________________


7 PHS identified numerous policy considerations unique to a prison setting such
as “the burden of identifying individuals in prisons at elevated risk for
transmission; and practical barriers to physician access to, and ability to
disseminate, information in the prison setting[,]” as well as the “maintenance
of prison order and security.” Seebold v. Prison Health Servs., 57 A.3d
1232, 1247 (Pa. 2012).

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that purpose. The record amply demonstrates that Mr. Andrews’s threats of

serious bodily injury were specific, and immediate, and communicated to the

UPMC Defendants.

      We agree with the trial court that Administratrix made the requisite

prima facie showing of a duty under Emerich. The remaining questions as to

whether the UPMC Defendants breached that duty, whether their conduct fell

below the standard of care, and if so, whether it was a cause in fact of Lisa

Maas’s death, are questions of fact for the jury.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2018




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