J-A10022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENJAMIN ARTHUR PINK, BY JOYCE               IN THE SUPERIOR COURT OF
SMITH, HIS ATTORNEY-IN-FACT,                       PENNSYLVANIA

                       Appellant

                  v.

UPMC PRESBYTERIAN SHADYSIDE,
T/D/B/A WESTERN PSYCHIATRIC
INSTITUTE AND CLINIC,

                       Appellee                   No. 752 WDA 2015


              Appeal from the Order Entered April 13, 2015
           In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): NP. GD12-020560

BENJAMIN ARTHUR PINK, BY JOYCE               IN THE SUPERIOR COURT OF
SMITH, HIS ATTORNEY-IN-FACT,                       PENNSYLVANIA

                       Appellant

                  v.

UPMC PRESBYTERIAN SHADYSIDE,
T/D/B/A WESTERN PSYCHIATRIC
INSTITUTE AND CLINIC,

                       Appellee                   No. 753 WDA 2015


              Appeal from the Order Entered April 27, 2015
           In the Court of Common Pleas of Allegheny County
                  Civil Division at No(s): GD12-020560


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED JULY 14, 2016

     Appellant, Benjamin Arthur Pink, by Joyce Smith, his attorney-in-fact,

appeals from the order granting summary judgment in favor of Appellee,
J-A10022-16



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

Clinic.1 After careful review, we affirm.

       Appellant has been diagnosed with autism, mental retardation, and

impulse disorder. Appellant’s Brief at 7. In 2009, Appellant moved into a

group home “because he wanted to go and live independently or co-

dependently….” N.T. Deposition of Joyce Smith, 9/24/14, at 13. On August

24, 2010, he was involuntarily committed to Western Psychiatric Institute

and Clinic (WPIC) under Section 7302 of the Mental Health Procedures Act of

1976, 50 P.S. §§ 7101-7503, (MHPA), for aggressive behavior and

destruction of property. Id.

       As summarized by the trial court in its opinion:

       The “known” facts in this case are substantially undisputed.
       [Appellant] alleges that he suffered two injuries while admitted
       as an in-patient at [WPIC]. On or about October 26, 2010,
       [Appellant] suffered an injury of unknown cause resulting in a
       non-displaced or incomplete fracture of the left patella as well as
       an injury to his left foot. On the afternoon of October 28, 2010,
       less than two days after the first fall, [Appellant] fell on his left
       arm, fracturing his elbow. [Appellant] is not competent to testify
       as to the cause of his own injuries, there are no witnesses to the
       circumstances that caused [Appellant’s] injuries, and no facts or

____________________________________________


1
  We note that Appellant has also erroneously appealed from the order
denying his motion for reconsideration. He then filed with this Court an
Application for Consolidation, which we granted by per curiam order on June
8, 2015. It is well-settled that “the refusal of a trial court to reconsider,
rehear, or permit reargument of a final decree is not reviewable on appeal.”
Provident National Bank v. Rooklin, 378 A.2d 893, 897 (Pa. Super.
1977). Accordingly, we will address only the appeal from the order granting
summary judgment.



                                           -2-
J-A10022-16


     records substantiating what negligent conduct, if any, by or on
     behalf of [Appellee] contributed to [Appellant’s] injuries.

Trial Court Opinion (TCO), 5/22/15, at 1-2 (unpaginated) (citations to record

omitted).

     Appellant instituted the underlying action on October 25, 2012, by Writ

of Summons.      On January 10, 2013, Appellant filed a complaint and

certificate of merit, in which he alleged negligence on the part of Appellee

and sought damages for the alleged injuries he sustained while admitted as

an in-patient at WPIC.   Appellant’s Brief at 7.   Appellee filed preliminary

objections, followed by an answer and new matter, asserting immunity

based on the MHPA. After a period of discovery, a jury trial was scheduled

for March 13, 2015. On March 6, 2015, Appellee filed a motion for summary

judgment, which was granted by the trial court on April 13, 2015. Appellant

timely filed a motion for reconsideration. The trial court denied Appellant’s

motion on April 27, 2015, and on May 11, 2015, he filed a notice of appeal.

     Herein, Appellant raises the following issues for our review:

     I.     Whether the lower court erred in granting [Appellee’s]
            motion for summary judgment and denying the motion for
            reconsideration where there were sufficient facts
            developed in the record which would allow a jury to find
            that [Appellee’s] psychiatric institution acted with gross
            negligence or willful misconduct in the care and treatment
            provided to [] Appellant resulting in his injuries and
            damages?

     II.    Whether the report of Appellant’s expert witness sets forth
            within medical certainty a prima facie cause of action
            against [Appellee] for gross negligence?

     III.   Whether the lower court erred in granting summary
            judgment   and   denying  Appellant’s  motion for

                                    -3-
J-A10022-16


            reconsideration where a jury based upon the evidence and
            the report of Appellant’s expert could find that the actions
            of [Appellee] caused the harm suffered by Appellant in
            accordance with Hamil v. Bashline, 392 A.2d 1280, 481
            Pa. 256 (Pa. 1978)?

      IV.   Whether the lower court erred in denying Appellant’s
            motion for reconsideration of summary judgment where
            evidence available subsequent to the argument on
            [Appellee’s] motion showed that [Appellee’s] policy and
            practice of destroying staff notes concerning what
            happened over each twenty-four hour period effectively
            destroyed evidence that [] Appellant could have used to
            reconstruct the incident and its causation which should
            have entitled [] Appellant to an adverse inference
            instruction to the jury?

Appellant’s Brief at 5-6 (unnecessary capitalization omitted).

      Our standard of review with respect to a trial court’s decision to grant

or deny a motion for summary judgment is well-settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will 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.




                                     -4-
J-A10022-16



Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citations

omitted).

      Preliminarily, we note that the MHPA provides limited protection from

civil and criminal liability to mental health personnel and their employees in

rendering treatment.     Farago v. Sacred Heart General Hospital, 562

A.2d 300, 304 (Pa. 1989). Specifically, Section 7114 provides immunity as

follows:

   (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 decision or for any of its
           consequences.

50 Pa.C.S. § 7114(a).

      Our Supreme Court has determined that the immunity provided
      by the MHPA extends to institutions, as well as natural persons,
      that provide care to mentally ill patients. Farago …, 562 A.2d
      [at] 303 []. Additionally, our Supreme Court has interpreted §
      7114(a) to include not only treatment decisions, but also, “‘care
      and other services that supplement treatment’ in order to
      promote the recovery of the patient from mental illness.” Allen
      v. Montgomery Hospital, 548 Pa. 299, 696 A.2d 1175, 1179
      (1997).

Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525 (Pa.

Super. 2003). As a hospital that provides psychiatric care, we conclude that

the MHPA most certainly applies to Appellee in this case. “Simply stated,


                                      -5-
J-A10022-16



Appellant must prove willful misconduct or gross negligence to throw off the

blanket of limited immunity which protects [Appellee]….”            Albright v.

Abington Memorial Hosp., 696 A.2d 1159, 1164 (Pa. 1997).

      Here, Appellant does not dispute the protection provided to Appellee

by the MHPA, but rather asserts that the trial court erred in finding, as a

matter of law, that Appellant failed to establish gross negligence or willful

misconduct. Appellant’s Brief at 9. In Bloom v. Dubois Regional Medical

Center, 597 A.2d 671 (Pa. Super. 1978), this Court arrived at a definition of

gross negligence for purposes of the MHPA.           This definition was later

adopted by our Supreme Court in Albright:

      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.

Albright, 696 A.2d at 1164 (quoting Bloom, 597 A.2d at 679).             “Willful

misconduct is conduct of such a nature that the actor desired to bring about

the result that followed or at least was aware that it was substantially

certain to follow.”   Dudley v. USC Corp., 606 A.2d 916, 921-922 (Pa.

Super. 1992).

      In the present case, Appellant avers that the evidence establishes

gross negligence on the part of Appellee for: 1) failing to protect Appellant;

2) inflicting suffering on Appellant through delay in treatment; and 3) failing


                                      -6-
J-A10022-16



to supervise Appellant following his knee injury. Appellant’s Brief at 12-19.

Appellant further avers that this matter should have been “determined by a

jury and not as a matter of law.” Id. at 12.

       First, we note that we addressed the very issue of whether the jury

has the sole right to determine gross negligence in Downey:

       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.
                                         …

       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 Act of any meaning and unfairly subject such
       employees and facilities to protracted and expensive litigation.

Downey, 817 A.2d at 525-526 (quoting Albright, 696 A.2d at 1164-65).

In our review of the trial court’s conclusion that no reasonable jury could

find gross negligence based on the evidence presented, we remain mindful

that Appellee’s behavior must be determined to be flagrant and grossly

deviating from the ordinary standard of care.      See Downey, 817 A.2d at

526.

       Appellant asserts that during his course of stay at WPIC, he was

involved in numerous altercations with other patients and that Appellee did

nothing to protect him.       Appellant’s Brief at 13.     However, Appellant

acknowledges that Appellee transferred an abusive roommate to another


                                      -7-
J-A10022-16



room. Moreover, as we gleaned from the parties’ briefs and our review of

the record, Appellant had an individualized treatment plan, was regularly

monitored, and was examined daily by Dr. Russell M. Farr (“Dr. Farr”), the

staff psychiatrist. He participated in group activities, which took place in an

activity room with staff present, and spent time in the common lounge area

located in front of the nurse’s station.

      Appellant further claims that Appellee was grossly negligent in

delaying treatment of his knee and by failing to supervise him following his

injury. Appellant’s Brief at 17-18. More specifically, Appellant states that he

was seen by Lori Lapina, P.A., at 3:00 p.m. on October, 26, 2010 for his

knee injury.   Appellant asserts that because of his limited mental capacity

and verbal communication skills, he was unable to explain what happened.

“He could only say that his knee ‘hurts a lot’ and he had difficulty walking.

The P.A. noted an unsteady gait, unlike in the morning, and found swelling

with a loss of bony landmarks in the left knee with bruising and warmth in

the area of the knee. An x-ray of the knee was ordered at the same time

which was approved by Dr. Farr.” Id. at 14. Appellant baldly asserts that

after injuring his knee, Appellee made no provisions for his comfort and

safety and concludes that Appellee’s “failure to assess and provide proper

supervision of [Appellant] and others led to the injuries which began on

October 26th.” Id. at 16.

      The record belies Appellant’s assertion that Appellee was grossly

negligent in delaying treatment of his knee.        It is uncontradicted that

                                      -8-
J-A10022-16



Appellant was examined at 3:00 p.m. on the date of the alleged incident.

An x-ray was ordered during said examination and was then conducted at

8:28 p.m. that same night. Dr. Farr, examined Appellant the next morning

at approximately 8:30 a.m.          At 12:20 p.m. on October 27, 2010, a

consultation   with   orthopedics   was   ordered.    Later   that   same   day,

orthopedics casted Appellant’s leg. As to the care of Appellant following his

knee injury, we gleaned from the record that Appellant was using a walker

and that the nursing staff encouraged Appellant to remain off his feet and

placed him on “level 2” fall precautions, which is Appellee’s highest level of

fall precaution. Appellant was clearly not “ignored” after his injury.

      As delineated by the definition set forth above, gross negligence refers

to conduct that goes well beyond ordinary negligence, carelessness,

inadvertence, laxity or indifference. Here, Appellant has failed to establish

any facts whatsoever to support his allegations that Appellee acted in a

flagrant manner and grossly deviated from the standard of care. Thus, we

conclude that Appellant’s claims in this regard are meritless.

      In further support of our conclusion that the facts in the present case

do not substantiate a finding of gross negligence, we look to this Court’s

decision in Downey. There, a mentally ill patient was admitted to a medical

center where it was determined that she required supervision of her daily

living activities, including bathing. Downey, 817 A.2d at 522. The medical

center was sued by the patient’s estate after she drowned as a result of the

center’s failure to directly supervise her while she was bathing. Id.       This

                                      -9-
J-A10022-16



Court held that “the alleged failure to supervise the decedent while bathing

constituted nothing more than ordinary ‘carelessness, inadvertence, laxity or

indifference.’”    Id. at 526.     In examining the record, the Downey Court

noted that at no point did the expert report state what standard of care or

procedures or policies were ignored or violated by the staff. Id.   Moreover,

a thorough review of the record led us to conclude that: “[T]he Decedent’s

death, while unfortunate, was accidental. There was no indication of gross

negligence … [a]t most, their failure to supervise Downey for the entire

period of bathing constituted ordinary carelessness, inadvertence, laxity or

indifference which fails to give rise to a cause of action under the MHPA.”

Id. at 527 (emphasis added).

       Here, Appellant has failed to establish ordinary negligence,2 let alone

gross negligence, as he does not show any causal connection between

Appellee’s actions and his injuries. Based on our decision in Downey, even

if Appellant were able to prove that his injuries were a direct result of

Appellee’s failure to properly supervise him, that would at most give rise to a

finding of ordinary negligence.           See also Albright, 696 A.2d at 1159

(applying immunity under the MHPA and holding that there was no gross

negligence on the part of the hospital where a patient receiving outpatient
____________________________________________


2
  “Negligence is established by proving the following four elements: (1) a
duty or obligation recognized by law; (2) a breach of that duty; (3) a causal
connection between the conduct and the resulting injury; and (4) actual
damages.” Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005).



                                          - 10 -
J-A10022-16



care set fire to her home as a result of her mental health issues, and the

hospital was aware, prior to the incident, that the patient had not been

taking her medication, had missed her recent appointments, and that her

mental   condition   was   deteriorating,   but   failed   to   have   the   patient

committed); Farago, 562 A.2d at 300 (affirming a finding that the MHPA

immunity applied and holding that plaintiff failed to establish gross

negligence where plaintiff claimed that she was sexually assaulted by

another patient as a result of the hospital’s failure to adequately supervise

and protect her).

      While it is unfortunate that Appellant sustained the two injuries

described herein, he has failed to establish any facts whatsoever to support

his allegations that his injuries were caused by a flagrant and gross deviation

from the standard of care. Accordingly, we discern no abuse of discretion in

the trial court’s finding that Appellant has failed to establish gross

negligence.

      Next, Appellant falsely equates corporate negligence with gross

negligence and asserts a claim of corporate negligence against Appellee for

its alleged lack of care for Appellant while residing as an in-patient in its

facility. Appellant’s Brief at 19. “Corporate negligence is a doctrine under

which the hospital is liable if it fails to uphold the proper standard of care

owed the patient, which is to ensure the patient’s safety and well-being

while at the hospital.” Thompson v. Nason Hospital, 591 A.2d 703, 707

(Pa. 1991).     The Thompson Court adopted the doctrine of corporate

                                     - 11 -
J-A10022-16



negligence as a theory of hospital liability and noted “that for a hospital to

be charged with negligence, it is necessary to show that the hospital had

actual or constructive knowledge of the defect of procedures which created

the harm.” Id. at 708. “Furthermore, the hospital’s negligence must have

been a substantial factor in bringing about the harm to the injured party.”

Id.

       Appellant relies on the expert testimony of James R. Merikangas, M.D.,

a renowned psychiatrist, in support of his claim of corporate negligence.3

Appellant argues that the expert report of Dr. Merikangas is sufficient to

support a prima facie case for gross negligence, as it establishes that

Appellee violated three of the corporate duties as set forth in the

Thompson case.             Appellant’s Brief at 21. However, we previously

acknowledged an important distinction between Thompson and the present

case. “In Thompson, the Supreme Court did not consider the difference

between negligence and gross negligence. Instead, the Court only needed

to determine if material facts existed such that the hospital could be found

negligent.” Potts v. Step By Step, Inc., 26 A.3d 1115, 1120 (Pa. Super.

2011). Thus, we concluded “it is problematic to rely on Thompson for the

proposition that the acts in that case could not qualify as gross negligence.”

Id.      In light of our conclusion herein that absent the finding of gross

____________________________________________


3
  See Expert Report of James R. Merikangas, M.D., attached as Exhibit “D”
to Appellee’s Motion for Summary Judgment.



                                          - 12 -
J-A10022-16



negligence, Appellee is subject to the immunity provided under the MHPA,

we deem Appellant’s reliance on Thompson misguided and this issue

without merit.

        In his third issue, Appellant avers that the trial court erred in granting

summary judgment and denying his motion for reconsideration where a

jury, based on the evidence of record and the expert report of Dr.

Merikangas, could have found that the actions of Appellee caused the harm

Appellant suffered.       Appellant’s Brief at 21.       Appellant mistakenly applies

Section 323(a) of the Restatement (Second) of Torts4 and alleges that

Appellee is liable under this section for the damages suffered by Appellant.

Appellant further argues that the Supreme Court’s decision in Hamil v.

Bashline, 392 A.2d 1280 (Pa. 1978) is controlling in this case.                 Again,

Appellant fails to take into account that Appellee is protected by immunity
____________________________________________


4
    Section 323 provides:

        § 323. Negligent        Performance        of   Undertaking   to   Render
        Services.

        One who undertakes, gratuitously or for consideration to render
        services to another which he should recognize as necessary for
        the protection of the other’s person or things, is subject to
        liability to the other for physical harm resulting from his failure
        to exercise reasonable care to perform his undertaking, if

        (a)   his failure to exercise care increases the risk of harm, or

        (b)   the harm is suffered because of the other’s reliance upon
              the undertaking.

Restatement (Second) of Torts § 323 (1965).



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under the MHPA and, thus, cannot be held liable absent a finding of gross

negligence. Section 323(a) and the decision in Hamil are based merely on

a finding of ordinary negligence. Hence, this claim is also without merit.

      Moreover, we note:

      It is well settled in the law that except in rare situations … the
      mere occurrence of an injury does not prove negligence and that
      an admittedly negligent act does not necessarily entail liability;
      rather even when it is established that the defendant breached
      some duty of care owed the plaintiff, it is incumbent on a
      plaintiff to establish a causal connection between defendant’s
      conduct and the plaintiff’s injury. Stated another way, the
      defendant’s conduct must be shown to have been the proximate
      cause of plaintiff’s injury. Proximate cause is a term of art
      denoting the point at which legal responsibility attaches for the
      harm to another arising out of some act of defendant; and it
      may be established by evidence that the defendant’s negligent
      act or failure to act was a substantial factor in bringing about the
      plaintiff’s harm. The defendant’s negligent conduct may not,
      however, be found to be a substantial cause where the plaintiff’s
      injury would have been sustained even in the absence of the
      actor’s negligence.

Hamil, 392 A.2d at 1284 (citations omitted). After careful review, we agree

with the trial court’s finding that Appellant has failed to produce sufficient

facts to establish any causal connection whatsoever between Appellee’s

actions and Appellant’s injuries.

      It is Appellant’s    burden to    establish causation through expert

testimony:

      Normally a plaintiff may establish his case of causation with any
      evidence, direct or circumstantial, which tends to show
      defendant’s actions as the legal cause of his harm. Where,
      however, the ultimate determinations lie beyond the knowledge
      or expertise of the average layperson, expert testimony is
      permitted (and sometimes required) to aid the jury in its

                                     - 14 -
J-A10022-16


       understanding of the factors involved and the teaching of the
       pertinent discipline with respect thereto. … [I]t is generally
       acknowledged that the complexities of the human body place
       questions as to the cause of pain or injury beyond the knowledge
       of the average layperson. For a plaintiff to make out his cause
       of action in such a case, therefore, the law requires that expert
       medical testimony be employed. In addition to its bearing on
       whether or not the defendant’s conduct was negligent, such
       testimony is needed to establish that the injury in question did,
       with a reasonable degree of medical certainty, stem from the
       negligent act alleged.

Id. at 1285. The law provides that:

       [E]xpert testimony is incompetent if it lacks an adequate basis in
       fact. While an expert’s opinion need not be based on absolute
       certainty, an opinion based on mere possibilities is not
       competent evidence. This means that expert testimony cannot
       be based solely upon conjecture or surmise. Rather, an expert’s
       assumptions must be based upon such facts as the jury would be
       warranted in finding from the evidence.

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012).

       Appellant produced only the expert testimony of Dr. Merikangas.        In

his report, Dr. Merikangas summarized Appellant’s treatment plan and the

facts set forth herein regarding Appellant’s two injuries.      Dr. Merikangas

concluded his report by opining that “[a]s a result of negligence and a

reckless disregard for his safety [Appellant] suffered not one, but two falls

resulting in injury, resulting in his condition and prospects to be substantially

worse as a result o[f] his hospitalization at WPIC.”5             However, Dr.

Merikangas failed to explain how Appellant fell, nor did he provide any

____________________________________________


5
 Expert Report of Dr. Merikangas, attached as Exhibit “D” to Appellee’s
Motion for Summary Judgment, at 3.



                                          - 15 -
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factual support for his conclusion that Appellee’s actions caused the injuries.

Thus, this expert report contained mere conjecture and failed to meet

Appellant’s burden of proof.

         Finally, Appellant claims that Appellee’s policy and practice of

destroying staff notes concerning what happened over each twenty-four

hour period effectively destroyed evidence that Appellant could have used to

reconstruct each incident and its causation; thus, he was entitled to an

adverse inference instruction to the jury.        Appellant’s Brief at 24.    In

response, the trial court opined:

         [Appellant’s] reliance upon these missing notes does not support
         an adverse inference charge. There is no additional record
         evidence regarding the nature of the notes, how they are
         historically maintained, how they could have been properly
         maintained, or how they might have been improperly disposed of
         or destroyed in this case. There is nothing in the testimony
         available in this case to support a suggestion that [Appellee], in
         any way, uncharacteristically, improperly, or intentionally
         handled or destroyed these notes. Of course, because they are
         not available, we are without the benefit of [knowing] what
         information is provided in the specific notes; but, more
         importantly, the record does not reflect what type of information
         is generically provided in these notes so as to permit even a
         reasoned guess as to whether they might, or might not, be
         meaningfully expected to speak to the question of whether
         [Appellee] engaged in gross negligence and/or whether
         [Appellee’s] conduct in any way caused or contributed to
         [Appellant’s] injury.

TCO at 3 (unpaginated).        We discern no abuse of discretion by the trial

court.     Moreover, we note that the record includes daily Progress Notes




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signed by Dr. Farr, which appear to include a summary of the staff’s daily

notes regarding Appellant’s care and behavior.6

       As Appellant failed to establish a genuine issue of material fact, we

conclude that the trial court did not commit an error of law or abuse its

discretion when it granted Appellee’s motion for summary judgment.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




____________________________________________


6
  See Progress Notes, attached as Exhibit “A” to Appellee’s Motion for
Summary Judgment.



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