J-A28022-17

                            2018 PA Super 196


 MELISSA DEAN, INDIVIDUALLY AND  :          IN THE SUPERIOR COURT OF
 AS CO-ADMINISTRATOR OF THE      :               PENNSYLVANIA
 ESTATE OF ANDREW E. JOHNSON     :
 AND CLIFTON EDWARD JOHNSON,     :
 INDIVIDUALLY AND AS CO-         :
 ADMINISTRATOR OF THE ESTATE OF  :
 ANDREW E. JOHNSON               :
                                 :
                 Appellants      :          No. 963 EDA 2017
                                 :
                                 :
           v.                    :
                                 :
                                 :
 BOWLING GREEN-BRANDYWINE,       :
 CRC HEALTH GROUP, INC. (AND/OR) :
 D/B/A CRC HEALTH GROUP,         :
 MOHAMMAD ALI KHAN, M.D., ASIM   :
 KHURSHID RANA, M.D.,            :
 JENNERSVILLE REGIONAL HOSPITAL, :
 JAMES DUNCKLEE, M.D., JENNIFER  :
 M. PLUMB M.D., SOUTHERN         :
 CHESTER COUNTY EMERGENCY        :
 ROOM ASSOCIATES, P.C.           :

              Appeal from the Judgment Entered March 22, 2017
               In the Court of Common Pleas of Chester County
                      Civil Division at No(s): 2014-11603


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

OPINION BY PANELLA, J.                                FILED JULY 2, 2018

     In this appeal, we must determine whether the trial court properly

granted nonsuit based upon the application of the limited immunity provision

of the Mental Health Procedures Act (“MHPA” or “the Act”). The limited

immunity provision of the MHPA, 50 P.S. § 7114, is intended “to provide

limited civil and criminal immunity to those individuals and institutions
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charged with providing treatment to the mentally ill.” Farago v. Sacred

Heart General Hospital, 562 A.2d 300, 303 (Pa. 1989). To this end, § 7114

provides that those who are engaged in treating or examining a patient “under

the act” cannot be held liable absent “willful misconduct or gross negligence.”

      The Act applies, in relevant part, to the “voluntary inpatient treatment

of mentally ill persons.” 50 P.S. § 7103. The Act does not define the term

“mentally ill person.” Furthermore, no party to this appeal has identified any

case law that explicitly addresses the definition of “mentally ill person” or

“mental illness” under the MHPA. The Department of Human Services has

issued regulations defining “Mental illness” as

      [t]hose disorders listed in the applicable APA Diagnostic and
      Statistical Manual; provided, however, that mental retardation,
      alcoholism, drug dependence and senility do not, in and of
      themselves, constitute mental illness. The presence of these
      conditions, however, does not preclude mental illness.

55 Pa. Code § 5100.2.

      In contrast, the MHPA explicitly defines “treatment.” “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. This definition evinces the

legislature’s intent to define “treatment” broadly, so that it includes “medical

care coincident to mental health care.” Allen v. Montgomery Hospital, 696

A.2d 1175, 1179 (Pa. 1997). Thus, “the General Assembly decided to


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ameliorate certain risks by granting limited immunity to doctors and hospitals

who have undertaken the treatment of the mentally ill, including treatment

for physical ailments pursuant to a contract with a mental health facility to

provide such treatment.” Id.

        Here, the trial court applied this statutory framework in the following

manner. Andrew Johnson was twenty-three years old when he voluntarily

applied for admission to Bowling Green Brandywine Treatment Center

(“Brandywine”). Johnson was suffering from addiction to opiates and

benzodiazepines, which had been prescribed for back injuries suffered in an

ATV accident. Less than ten days after he was admitted, he was found

unresponsive on the floor of his room at Brandywine. He subsequently passed

away.

        Johnson’s    parents,    Melissa       Dean   and   Clifton   Johnson,   as   co-

administrators of Johnson’s estate and in their respective individual capacities,

filed a complaint alleging Johnson’s death was caused by medical malpractice

on the part of Brandywine and associated defendants. Of relevance to this

appeal, three defendants, Mohammad Ali Khan, M.D., Asi Khurshid Rana,

M.D., and Jennifer Plumb, M.D.,1 asserted in new matter that they could not


____________________________________________


1 Dr. Plumb passed away after this lawsuit was initiated. While her estate was
substituted as party to this proceeding, we will refer to Dr. Plumb for ease of
reading.




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be held liable for anything less than “gross negligence” under the MHPA. Two

of the remaining defendants,2 Brandywine and James Duncklee, M.D., did not

initially raise this defense in their answers.

        The case proceeded to trial. Appellants presented their case primarily

through the expert testimony of George Glass, M.D. Dr. Glass reviewed the

medical records from Johnson’s stay at Brandywine, and opined the

defendants had all breached their duty of care to Johnson by failing to

recognize symptoms suggesting Johnson was at high risk for cardiac arrest.

        Similarly, Appellants presented the expert testimony of Crystal

Fizpatrick, R.N., A.P.N., Ph.D. Dr. Fitzpatrick opined on the care provided by

nurses employed by Brandywine. Specifically, she testified Brandywine

breached the standard of care by not ensuring a Registered Nurse was on site

at all times. Furthermore, she opined the Licensed Practical Nurses who were

on site did not do enough to convince Dr. Khan to have Johnson transferred

to emergency care the night before he died.

        Edward Goldenberg, M.D., provided expert testimony regarding the

cause of Johnson’s death. He opined Johnson died from a cardiac arrhythmia

caused by deficient potassium levels and side effects of the medications in his

system.




____________________________________________


2   Defendant Jennersville Regional Hospital settled prior to trial.

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      Johnson’s parents each testified, as did economic expert Royal Bunin.

Each of these witnesses provided testimony relevant to damages.

      Finally, Appellants called Elizabeth Caterbone, L.P.N., as a hostile

witness. Appellants questioned Nurse Caterbone regarding her decisions while

treating Johnson. In particular, she testified to the steps that were taken

during Johnson’s final hours of life.

      Appellants rested, and Dr. Khan, Dr. Rana, and Dr. Plumb moved for the

entry of an involuntary nonsuit. They argued Appellants had failed to present

evidence capable of establishing willful misconduct or gross negligence.

Brandywine and Dr. Duncklee requested permission to amend their pleadings

to raise the defense of limited immunity under the MHPA.

      The trial court initially denied Brandywine’s and Dr. Duncklee’s request

to amend their pleadings. However, it later reconsidered, noting that

Appellants could not establish undue prejudice, as the pleadings of Dr. Khan,

Dr. Rana, and Dr. Plumb had notified Appellants that the issue would be

litigated. Furthermore, the court concluded the MHPA applied to Appellants’

claims based upon the evidence presented. Finally, the court determined

Appellants had failed to present evidence capable of establishing that any of

the defendants had been grossly negligent in their care of Johnson. As a result,

the court granted nonsuit to all of the remaining defendants.




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       The trial court denied Appellants’ motion to remove the nonsuit and

Appellants filed this timely appeal.3

       A nonsuit is only proper if the court,

           viewing the evidence and all reasonable inferences arising
           from it in the light most favorable to the plaintiff, could not
           reasonably conclude that the elements of the cause of
           action had been established. Furthermore, all conflicts in
           the evidence must be resolved in the plaintiff’s favor.

Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 526 (Pa. Super. 2006)

(citation omitted). Nonsuit is granted in circumstances where a contrary result

would be based upon mere conjecture. See id. We may affirm the trial court’s

order on any basis, regardless of the reasoning relied upon by the trial court.

See Shearer v. Naftzinger, 747 A.2d 859, 861 (Pa. 2000). “We will reverse

only if the trial court abused its discretion or made an error of law.” Harvey,

901 A.2d at 526 (citation omitted).




____________________________________________


3 Appellants’ notice of appeal cites the February 22, 2017 order refusing to lift
the nonsuit as the order from which they appeal. “Orders denying post-trial
motions … are not appealable. Rather, it is the subsequent judgment that is
the appealable order when a trial has occurred.” Harvey v. Rouse
Chamberlin Ltd., 901 A.2d 523, 525 n.1 (Pa. Super. 2006) (citation
omitted). We treat a motion to remove a nonsuit as a post-trial motion. See
Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. Super. 2004). Here, judgment
was entered by praecipe on March 22, 2017; thus, Appellants’ notices of
appeal were mislabeled. Despite their errors, we will address the appeal
because judgment has been entered on the verdict. See Mount Olivet
Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1266
n.3 (Pa. Super. 2001). We have corrected the caption accordingly.



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       Appellants first claim the trial court erred in concluding the MHPA applied

to this case. They correctly argue that Johnson’s drug addictions do not, by

themselves, constitute mental illness under the Act. See 55 Pa. Code §

5100.2.4 They further argue the court could not find that Johnson suffered

from mental illness or that he was diagnosed or treated for mental illness at

Brandywine without considering improper evidence.

       The limited immunity provisions of the MHPA constitute an affirmative

defense. See Heifetz v. Philadelphia State Hospital, 393 A.2d 1160, 1162

n.5 (Pa. 1978) (noting “immunity from suit is an affirmative defense”). See

also Pa.R.Civ.P. 1030(a) (defining immunity from suit as an affirmative

defense). Thus, the defendants, as the parties asserting the defense of limited

immunity, bore the burden of proof on this issue at trial. See Beato v. Di

Pilato, 106 A.2d 641, 643 (Pa. Super. 1954). Even more relevant here, in

order to receive the benefit of a nonsuit, they were required to establish the

complete absence of any reasonable dispute of material fact regarding its

application.

____________________________________________


4 We are troubled that the current definition of “Mental illness” provided in the
Code excludes alcoholism and drug dependency. See 55 Pa. Code §
5100.2. In light of current scientific research, as well as the recent addition
of “addictive disorders” to the American Psychiatric Association’s Diagnostic
and Statistic Manual V, we suggest that the Department of Human Services
revise                  this                   definition.                   See
https://www.nimh.nih.gov/health/topics/substance-use-and-mental-
health/index.shtml (discussing substance use disorder as mental illness) (last
visited June 29, 2018).



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     The court provided the following as the basis for its decision:

     I think the record discloses that Mr. Johnson, upon presentation
     at Bowling Green, was noted to have a history of psychiatric
     treatment for bipolar disorder and ADHD. Somewhere in the
     record there was a note that he had tried Depakote and Lithium
     and that didn’t work for him, but that he was on Xanax, which
     seemed to work, at least as to another complaint of anxiety. I’m
     not sure anxiety is a physical ailment.

     The diagnosis was carried in his chart. And while not confirmed by
     any of the doctors, was confirmed by his mother. So it was not
     made up about an actual diagnosis and medications were ordered
     on an as-needed basis, including Clonidine as needed for anxiety
     and/or withdrawal symptoms.

     He was transported on an emergent basis, after four days at
     Bowling Green, over to Jennersville Hospital after he reported that
     he could not move or see and that he didn’t feel right. The nursing
     note from November 26th indicated he returned from Jennersville
     Hospital and appeared agitated and confused. And his mother
     called and expressed concern about her son’s state of mind and
     confusion after speaking with him at the hospital.

     He was transported again to Jennersville after making remarks
     that he was not going to be in the commercial and that they were
     just doing an infomercial after the ambulance arrived. And there
     is some note for November 26th in the evening note that he was
     hallucinating at times.

     That continued into the following day, as noted by Dr. Khan on
     the 27th where he noted that Mr. Johnson had been hallucinating,
     seeing shadows and was incoherent. And he ordered a psych
     consult at that point. Dr. Rana, the psychiatrist, evaluated him on
     the 28th and made a diagnosis after looking at the psychiatric
     history and family history of a mood disorder, as well as an anxiety
     disorder, ruling out several other things and prescribing
     Neurontin.

     …

     Now, as to whether Bowling Green fits within the definition of
     facility, I think the record, as it was produced during trial, had


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J-A28022-17


      sufficient evidence that, in fact, Bowling Green, as part of its
      program, provides inpatient psychiatric care.

      It seems to me that Dr. Khan was overall responsible for the
      health of his patients and residents, is responsible for making sure
      that they have proper psychiatric treatment consistent with the
      level of care offered by that institution. And in the exercise of that
      duty, he made an explicit referral to Dr. Rana. And it is clear to
      me that his actions and Dr. Rana’s actions are immunized for
      purposes of this case. And Bowling Green, being such a facility, is
      likewise immunized.

      The gentleman was twice admitted to Jennersville and seen by Dr.
      Duncklee and then by Dr. Plumb. They apparently had, not
      everything, they may not have had the Methadone medication,
      but they did have a history when they looked at him.

      The court also … did not see that the Act required a doctor to run
      out and confirm all medical history on admission. At any rate, in
      a matter of days there was a psychiatric referral and a diagnosis,
      The court was persuaded that Jennersville, Dr. Duncklee and Dr.
      Plumb were all immunized for the same reasons.

Trial Court Opinion, 3/17/17, at 10-13 (citation omitted).

      We begin with Appellants’ claims against Dr. Rana, as this constitutes

the most straightforward application of the MHPA. Appellants’ expert, Dr.

Glass, testified that Dr. Khan referred Johnson to Dr. Rana for a psychiatric

evaluation. See N.T., 11/1/16, at 78. Dr. Rana believed his only duty towards

Johnson was to determine whether Johnson had “a comorbid psychiatric

disorder that need[ed] to be addressed.” Id., at 79. In fact, Dr. Glass’s

criticism of Dr. Rana centered on his belief Dr. Rana’s care was too

compartmentalized; he opined Dr. Rana should have utilized his general

medical knowledge to recognize that Johnson was in physical distress. See,

eg., id.

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      Dr. Rana diagnosed Johnson “with mood disorder, anxiety disorder, et

cetera, [and] opioid substance abuse induced mood.” Id., at 78. As a result,

he started treating Johnson with Neurontin, which can be used to treat bipolar

disorders. See id., at 79.

      Thus, by Appellants’ own evidence, Dr. Rana was engaged in the

“diagnosis, evaluation, therapy, or rehabilitation” of mental illness in Johnson.

The trial court did not err in concluding Dr. Rana was covered by the limited

immunity provided by the MHPA.

      The application of the MHPA to the remaining defendants is less clear,

and indeed, presents a somewhat novel issue. Defendants and the trial court

rely upon Johnson’s intake forms to support the conclusion that the remaining

defendants were involved in treating Johnson’s mental illness.

      However, the intake forms cut both ways. While they indicated Johnson

had a “Current Mental Health diagnosis” of “Bipolar, ADHD,” they also

indicated Johnson was not currently taking any medication for these

diagnoses, nor was he under the care of a psychiatrist. In addition, the

“[r]eason for admission” is “[t]o get off the pills.” Under “Assessment and Plan

of Treatment,” only two items are identified: “Benzo detox protocol” and

“Methadone Taper.” Thus, the forms do not support an inference that

Brandywine understood Johnson to be suffering from mental illness or that

Brandywine intended to treat Johnson for mental illness.




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      The timeline established by Appellants’ witnesses does not support the

conclusion that the remaining defendants interpreted the intake forms as

requiring treatment of Johnson’s mental illness. Indeed, Johnson was not

referred to Dr. Rana for a psychiatric consult until approximately eight days

after he was admitted to Brandywine on November 20, 2012. While not

conclusive, this evidence certainly can support an inference that Brandywine

did not view Johnson as suffering from mental illness for the first week after

he was admitted.

      Regarding Dr. Duncklee and Dr. Plumb, emergency room physicians who

treated Johnson after he had been transferred from Brandywine to Jennersville

Hospital by ambulance, the record is similarly inconclusive. Johnson was

transferred to Jennersville on November 25, 2012, with a chief complaint of

“PAIN-MULTIPLE SITES (NO KNOWN INJURY).” Dr. Duncklee’s clinical

impression was “1. Vaso-Vagal Syncope 2. Drug Abuse.” The recorded medical

history for Johnson does not indicate any mental illness.

      On the other hand, Dr. Duncklee noted that Johnson occasionally had “a

bizarre affect with some rambling, specifically when he was approached with

the fact that he tested positive for meth[]amphetamines.” Johnson was

returned to Brandywine with instructions to have a follow up appointment with

his family physician.

      Thus, at the time Johnson was seen by Dr. Duncklee, Brandywine had

not treated for or diagnosed him with mental illness. He had not yet seen Dr.


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Rana. The record is therefore far from clear that Dr. Duncklee diagnosed or

treated Johnson for mental illness.

      Dr. Duncklee argues that he is entitled to limited immunity under the

Act pursuant to Allen. In that case, Anne Allen was admitted to Norristown

State Hospital for treatment of mental health issues. See 696 A.2d at 1176.

She was subsequently transferred to Montgomery Hospital “pursuant to a

contractual agreement through which Montgomery Hospital would provide

medical treatment for mental patients from Norristown State Hospital.” Id.

      Physicians at Montgomery Hospital suspected that her psychiatric

medications were causing her medical ailments, and “removed the patient

from all but one of her prescribed psychotropic drugs.” Id. Allen was

subsequently found hanging six inches from the floor with a bed restraint

around her neck. She suffered permanent brain damage from the incident.

See id.

      Montgomery Hospital contended it was entitled to limited immunity

under the MHPA. Allen argued that limited immunity applied only to mental

health treatments, not the medical treatment undertaken by Montgomery

Hospital.

      Our Supreme Court held that Montgomery Hospital was entitled to

limited immunity, as, “[a]t that time, the patient was mentally ill and was in

acute need of medical care.” Id., at 1179. Thus, Montgomery Hospital’s




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J-A28022-17


medical treatment of Allen was treatment intended to assist Allen in her

recovery from mental illness. See id.

      Allen is clearly distinguishable. Allen directs that once a patient is being

treated for psychiatric issues, any contemporaneous medical treatment must

be considered part and parcel of the psychiatric treatment. In contrast, at the

time Dr. Duncklee saw Johnson, there is no evidence that Brandywine or any

other medical facility or professional was currently treating him for mental

health issues. Nor is there any evidence that Dr. Duncklee was even aware of

Johnson’s psychiatric history. We therefore conclude the trial court erred in

applying limited immunity under the MHPA to Johnson’s claims against Dr.

Duncklee.

      The circumstances surrounding Dr. Plumb’s care for Johnson are similar,

but not identical, to Dr. Duncklee’s. On November 26, 2012, Johnson was once

again transferred from Brandywine to the Jennersville Hospital emergency

room. And once again, this transfer occurred before Dr. Rana’s psychiatric

assessment.

      In contrast, the “Chief Complaint” listed on his medical record was

“CONFUSION – NEW ONSET.” Also, Dr. Plumb indicated Johnson’s medical

history included bipolar disorder. However, Dr. Plumb’s clinical impression was

“Substance Abuse.” Dr. Plumb returned Johnson to Brandywine with

instructions to follow-up with Brandywine for his “SUBSTANCE ABUSE.”




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      While the circumstances surrounding Dr. Plumb’s care are more

favorable to a finding that she was engaged in treating Johnson for mental

health issues beyond his narcotic addictions, we cannot conclude the

circumstances are such that no reasonable jury could find otherwise. Dr.

Plumb did not propose a diagnosis of mental illness, nor did she offer any

treatment for mental illness. These circumstances, combined with the absence

of any evidence Brandywine was contemporaneously treating Johnson for

mental health issues, would be sufficient to allow a reasonable jury to find

that Dr. Plumb was not engaged in treating Johnson for, or medically treating

him in conjunction with treatment for, mental illness. The trial court erred in

holding to the contrary.

      Appellants only asserted vicarious liability claims against Southern

Chester County Emergency Room Associates based upon the actions of Dr.

Duncklee and Dr. Plumb. Since we have determined the court erred in

dismissing the claims against Drs. Duncklee and Plumb, we must also reinstate

the vicarious liability claim against Chester County Emergency Room

Associates.

      This leaves only the application of the Act to Appellants’ claims against

Dr. Khan and Brandywine. They were caring for Johnson both before and after

Dr. Rana’s psychiatric consult. As discussed, there is no evidence Johnson was

being treated for mental illness prior to Dr. Rana’s consult. Furthermore, we

conclude that, due to Dr. Rana’s diagnosis and treatment of Johnson’s mental


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J-A28022-17


illness, Dr. Khan and Brandywine’s actions after the psychiatric consult are

covered by the limited immunity provisions of the MHPA.

        Thus, we must determine whether Appellants’ claims against Dr. Khan

and Brandywine are based upon circumstances arising after Dr. Rana’s

consult. If they are, the limited immunity provisions of the Act apply. If not,

the trial court erred in granting nonsuit.

        Dr. Glass, Appellants’ standard of care expert, provided several

incidents where he believed that Dr. Khan failed to properly treat Johnson.

Several of these incidents were prior to the psychiatric consult. However, a

review of Dr. Glass’s testimony reveals the primacy of Dr. Khan’s failure to

acquiesce to Johnson’s transfer to an emergency room the night before he

died:

        Q.   Do you have an opinion with regards to Dr. Khan not
             sending or telling the nurses to absolutely not send
             [Johnson] to either the ER or another facility on the evening
             of the 28th?

        A.   My opinion is that, had they sent him, he wouldn’t have
             died. Somebody would have looked at him. He would have
             gotten more intensive care. The nurses, I think, were very
             involved with him, but there is a limit to their abilities in that
             facility. The next step was not checked.

N.T., 11/1/16, at 86-87 (emphasis supplied).

        Thus, Dr. Glass opined that the causative breach of Dr. Khan’s standard

of care occurred after the psychiatric consult. As a result, the limited immunity

provisions of the MHPA applied to Appellants’ claim against Dr. Khan.




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      Similarly, Appellants provided the following expert testimony on the

actions of Brandywine’s nurses relative to the expected standard of care:

      A.    …

            [T]he biggest role for a nursing staff, they are the eyes and
            ears. The nurses are staffed 24/7 in any of these kinds of
            facilities. They are eyes and ears for the provider panel.
            When they can’t be there to watch them, the nurses are
            there. And because of that, nurses are – one of their roles
            is to be advocate – to advocate for the patient, to make sure
            that the patient has his needs met, be it medical or custodial
            or whatever else.

            And to see it – I do realize that the – what they received
            from the medical staff was that he shouldn’t be transferred
            to the – sent to the ER or transferred out or whatever else,
            but looking at the pure numbers of his vital signs of how he
            was behaving and his recent history of how he was, there
            should have been a heavier advocacy happening for the
            patient on his behalf by the nurses.

      Q.    That would be to go to the ER?

      A.    Yeah. Simply that, yeah.

N.T., 11/2/16, at 80-81. Once again, this testimony focuses on conduct that

occurred after the psychiatric consult, and is therefore subject to the limited

immunity provisions of the MHPA.

      Taken as a whole, we conclude limited immunity properly applies to the

Appellants’ claims against Dr. Rana, Dr. Khan, and Brandywine. In contrast,

limited immunity does not apply to Appellants’ claims against Dr. Duncklee,

Dr. Plumb, and Southern Chester County Emergency Associates, P.C. This is

not, however, the end of our analysis.




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      Appellants argue the trial court erred in allowing Dr. Duncklee and

Brandywine to amend their pleadings after Appellants had rested. After

Appellants had finished presenting their case-in-chief, both Dr. Duncklee and

Brandywine requested leave to amend their pleadings to include the defense

of limited immunity under the MHPA. After initially denying permission, the

court ultimately determined Appellants had been placed on notice of the

defense when the other defendants had pled it, and therefore there would be

no prejudice to Appellants in permitting the amendments.

      Given our conclusion that Dr. Duncklee is not entitled to limited

immunity under the Act, the issue of whether he should have been allowed to

raise the issue is moot. In contrast, we have concluded Brandywine is entitled

to the defense of limited immunity. We therefore must determine whether the

court erred in allowing Brandywine to raise the issue.

      Generally, a party may amend a pleading to add a new defense, so long

as he obtains consent from the adverse party or leave of court. See Pa.R.C.P.

1033. “Leave to amend … should be liberally granted at any stage of the

proceedings unless there is an error of law or resulting prejudice to an adverse

party.” Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014) (citation omitted).

The rule of liberal leave to amend is premised upon a preference to have

claims decided on their merits as opposed to strict enforcement of legal

technicalities. See id.




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      Application of this rule here is not straightforward. Brandywine waited

until after Appellants had finished presenting evidence before requesting leave

to amend their pleadings to raise the issue of limited immunity. The trial court

initially declined leave to amend. The court properly noted that under normal

circumstances, the late amendment would be unduly prejudicial.

      However, the court was persuaded otherwise by the circumstances of

this case. It noted that Dr. Khan, Brandywine’s agent, had timely pled the

defense of limited immunity. As a result, Appellants had been placed on notice

of the issue prior to trial. Appellants did not argue, and do not argue on appeal,

that application of limited immunity to Brandywine involved factual issues

distinct from the application to Dr. Khan or any of the other defendants.

      Rather, Appellants argue they were deprived of their procedural rights

to challenge the affirmative defense. This argument does not avail them any

relief. As noted, Dr. Khan and other defendants timely raised the issue. A

review of the trial court dockets does not reveal any preliminary objections

filed by Appellants to Dr. Khan’s pleading. Indeed, Appellants filed their

answer to Dr. Khan’s new matter within seven days. It was therefore

reasonable for the trial court to assume Appellants would have similarly

responded to Brandywine if Brandywine had timely raised the issue in new

matter.

      Under these circumstances, we cannot conclude the trial court abused

its discretion. Appellants had notice that a defendant associated with


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J-A28022-17


Brandywine had raised the issue of limited liability. As a result, it was

reasonable for the trial court to find minimal to no prejudice to Appellants.

Since the rule favors liberal leave to amend, the court did not err.

      In their final issue, Appellants argue the trial court erred in “sua sponte

raising the MHPA for Dr. Duncklee and the Estate of Dr. Plumb.” We need not

address this issue, as we have concluded that limited immunity is not

applicable to Dr. Duncklee or Dr. Plumb. Thus, this issue is moot.

      In sum, we conclude the trial court properly granted nonsuit to Dr. Rana,

Dr. Khan, and Brandywine. We reverse the grant of nonsuit to Dr. Duncklee,

Dr. Plumb, and Southern Chester County Emergency Associates, P.C.

      Judgment affirmed in part and reversed in part. Case remanded for

proceedings consistent with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/18




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