J. A15045/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


YVONNE HORSEY,                              :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
THE CHESTER COUNTY HOSPITAL,                :
WALEED S. SHALABY, M.D., AND                :
JENNIFER AKINS, M.D.,                       :
                                            :
                                            :     No. 3066 EDA 2014

               Appeal from the Order Entered September 24, 2014
                In the Court of Common Pleas of Chester County
                        Civil Division No(s).: 2012-11537

BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2015

        Appellant, Yvonne Horsey, appeals from the order entered in the

Chester County Court of Common Pleas granting Appellees’, The Chester

County Hospital, Waleed S. Shalaby, M.D., and Jennifer Akins, M.D.’s,

motion for summary judgment.          Appellant avers the facts in this case

dispense with the need for a medical expert because the doctrine of res ipsa

loquitur is applicable, therefore, the court erred in granting summary

judgment. We affirm.

        Appellant filed a complaint on January 10, 2013, asserting a

professional liability claim against all Appellees.        Appellant’s Compl.,

*
    Former Justice specially assigned to the Superior Court.
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1/10/13, at ¶ 5. Following Appellant’s surgery for an ovarian cyst, the drug

Dilaudid was administered to her “by means of a delivery system referred to

as a PCA[1] system.”      Id. at ¶ 15.       Appellant alleges Appellees were

negligent in the following respects:

         a. Failure to properly set up the PCA equipment

         b. Failure to properly program the PCA equipment

         c. Failure to properly set the PCA equipment controls

         d. Failure to use a proper concentration of Dilaudid

         e. Failure to adequately monitor the patient

         f. Failure to observe the patient

         g. Failure to use apnea monitors

         h. Failure to check blood pressure

         i. Failure to verify PCA settings

         j Failure to check the patient’s level of pain, alertness, vital
         signs, rate and quality of respirations or failing to do so
         with sufficient frequency

         k. Failure to properly assess response to verbal or tactile
         stimulation

         l. Failure to check for factors that could increase the risk of
         respiration depression or hypoxia and failure to employ
         measures to prevent such consequences


1
  PCA is defined as patient controlled analgesia. Vogelsberger v. Magee-
Womens Hosp. of UPMC Health Sys., 903 A.2d 540, 545 (Pa. Super.
2006); see also Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 159
n.15 (Pa. 2009).




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          m. Failure to document PCA doses and patient monitoring

          n. Failure to order and use a proper dose of Dilaudid

          o. Failure to use morphine instead of hydromorphone
          (Dilaudid)

          p. Failure to use standard concentrations and standardizing
          order forms

          q. Failure to use dose error reduction software (DERS)

          r. Failure to use or conduct an independent double-check
          of the PCA programming[2]

Id. at ¶ 38(a)-(r).3 Appellant averred in the complaint that as a result of

Appellees’ negligence, Appellant sustained a permanent brain injury. Id. at

¶ 29.

        On March 11, 2013, Appellant filed a motion to extend the time to file

a certificate of merit. Appellant averred, inter alia, as follows:

          1. [Appellant] filed her Complaint alleging professional
          negligence on January 10, 2013.



2
 We note Appellees filed preliminary objections to the complaint. Averment
38(s), viz., “Otherwise acting in a negligent manner,” was stricken from the
complaint by the court pursuant to Connor v. Allegheny Gen. Hosp., 461
A.2d 600, 602 n.3 (Pa. 1983). Order, 8/16/13.
3
  The complaint was filed by Robert E. Slota, Jr., Esq. He withdraw his
appearance on January 14, 2014. Subsequently, Melissa Ann Iacobucci,
Esq., an associate of Mr. Slota, represented Appellant. Order, 9/24/14, n.1.
Steven B. Barrett, Esq., entered his appearance on behalf of Appellant on
January 22, 2014. Ms. Iacobucci withdrew her appearance on July 8, 2014.
Current counsel, Norman Perlberger, entered his appearance for Appellant
on July 8, 2014.




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           2. [Appellant] is aware of her duty to file a Certificate of
           Merit as to [Appellees’] professional negligence in this
           matter pursuant to Pennsylvania Rules of Civil Procedure
           1042.3(a).[4]

                                    *    *    *

           6. Therefore, [Appellant] requests an extension of time of
           sixty days in which to file a Certificate of Merit as to all
           [Appellees] pursuant to Pennsylvania Rules of civil
           Procedure 1042.3(d) which states in pertinent part, “[t]he
           court, upon good cause shown, shall extend the time for


4
    The rule provides:

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

              (1) an appropriate licensed professional has supplied a
           written statement that there exists a reasonable
           probability that the care, skill or knowledge exercised or
           exhibited in the treatment, practice or work that is the
           subject of the complaint, fell outside acceptable
           professional standards and that such conduct was a cause
           in bringing about the harm, or

               (2) the claim that the defendant deviated from an
           acceptable professional standard is based solely on
           allegations that other licensed professionals for whom this
           defendant is responsible deviated from an acceptable
           professional standard, or

              (3) expert testimony of an appropriate licensed
           professional is unnecessary for prosecution of the claim.

Pa.R.C.P. 1042.3(a)(1)-(3) (notes omitted).




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         filing a certificate of merit for a period not to exceed sixty
         days.”

Appellant’s Mot. to Extend Time to File a Certificate of Merit, 3/11/13, at 1, 2

(unpaginated).

      On May 24, 2013, Appellees filed a notice of intention to enter

judgment of non pros within thirty days of the date of the filing if the

certificates of merit were not filed.5 On June 10, 2013, by agreement of the

parties, the court ordered, inter alia, that “[a]ny expert report of

[Appellant] shall be delivered to [Appellees] no later than June 30, 2014.”

Order, 6/10/13 (emphasis added).          On June 27, 2013, Appellant filed

certificates of merit as to each Appellee.      On August 16, 2013, the court

entered an order granting Appellant’s motion to extend time to file a

5
  See Pa.R.C.P. 1042.6 Notice of Intent to Enter Judgment of Non Pros
for Failure to File Certificate of Merit. “Our rules of civil procedure
recognize the entry of a judgment of non pros . . . under [Pa.R.C.P.] 1042.7
for failure to file a certificate of merit . . . .” Estate of Denmark ex rel.
Hurst v. Williams, ___ A.3d ___, ___, 2015 WL 1912927 at *3 (Pa. Super.
2015). Rule 1042.7 provides, in pertinent part:

             (a) The prothonotary, on praecipe of the defendant,
         shall enter a judgment of non pros against the plaintiff for
         failure to file a certificate of merit within the required time
         provided that

            (1) there is no pending motion for determination that
         the filing of a certificate is not required or no pending
         timely filed motion seeking to extend the time to file the
         certificate,

            (2) no certificate of merit has been filed . . . .

Pa.R.C.P. 1042.7.



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certificate of merit. The order provided Appellant “shall have an additional

sixty (60) days from the date of this Order in which to file Certificates of

Merit in compliance with Pa.R.C.P. 1042.3.[ ]”     Order, 8/16/13.    However,

the order further provided:        “The court notes that [Appellant] filed

Certificates of Merit on June 27, 2013, while this Motion was pending. Since,

however, the Motion had not yet been decided, [Appellant’s] filing is deemed

premature and ineffective.” Order, 8/16/13, at 1 n.1. On October 15, 2013,

Appellant filed certificates of merit as to all Appellees.   Appellant failed to

serve expert reports by the June 30, 2014 court-ordered deadline.

      On August 6, 2014, Appellees filed a motion for summary judgment

contending that Appellant “cannot establish a prima facie case against

[Appellees] because she has failed to serve an expert report that is critical of

any care rendered by [Appellees].” Appellees’ Mot. for Summ. J., 8/6/14, at

2 (unpaginated).    Appellant filed a response to the motion for summary

judgment contending an expert report was not required because Appellees’

“own records serve as an admission to the alleged negligence and, as such

provide a sufficient basis for a prima facie case.” Appellant’s Resp. to Mot.

for Summ. J., 8/18/14, at 1 (unpaginated).           Appellant contended the

doctrine of res ipsa loquitur6 was applicable in the case sub judice.



6
  The Restatement (Second) of Torts articulated the doctrine of res ipsa
loquitur as follows:




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Appellant’s Mem. of Law in Opp’n to Appellees’ Mot. for Summ. J., 8/18/14,

at 4 (unpaginated).     On September 24, 2014, the court entered an order

granting Appellees’ motion for summary judgment

      Meanwhile, on September 5, 2014, Appellees filed a motion to strike

certificates of merit pursuant to Rule 1042.3(a)(1) and for non pros based

upon Appellant’s contention that no expert report was needed.       Appellees’

Mot. to Strike Certificates of Merit and for Judgment of Non Pros, 9/5/14, at

4 (unpaginated). Appellees aver a certificate of merit should have been filed

pursuant to Rule 1042.3(a)(3).      Id.   On September 25, 2014, the court

denied as moot Appellees’ motion to strike certificates of merit and for

judgment of non pros.

      This timely appeal followed.    Appellant filed a timely court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.           The trial

court filed a responsive opinion.



         (1) It may be inferred that harm suffered by the plaintiff is
         caused by negligence of the defendant when

            (a) the event is of a kind which ordinarily does not
            occur in the absence of negligence;

            (b) other responsible causes, including the conduct of
            the plaintiff and third persons, are sufficiently
            eliminated by the evidence; and

            (c) the indicated negligence is within the scope of the
            defendant’s duty to the plaintiff.

Restatement (Second) of Torts § 328(D).



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        Appellant raises the following issues for our review:

           1. Where the hospital records of [Appellee] Hospital
           concede that [Appellant] was administered excessive doses
           of Dilaudid and that [Appellant] suffered injury therefrom,
           did not these operative facts lend themselves to the
           application of res ipsa loquitur, thereby dispensing with the
           need for a medical expert, and was not the lower court’s
           reliance on the Durkin[7] and Vasquez[8] cases erroneous?

           2. Where prior counsel improvidently filed Certificates of
           Merit asserting that he had expert opinions that
           [Appellees] had deviated from the standard of care or
           causation in treating [Appellant], but in reality, no expert
           was required, was it not error to dismiss the case and take
           it away from the trier-or-fact?

Appellant’s Brief at 4.

        We   address   Appellant’s   arguments   together   because    they   are

interrelated. Appellant contends the doctrine of res ipsa loquitur applies in

the instant case thus obviating the need for expert testimony to establish

Appellees’ negligence. Id. at 10. She argues the circumstances “are such

that a lay juror could recognize negligence just as well as any expert.” Id.

Appellant contends that there is no question that the administration of

Dilaudid was excessive and as a result she suffered harm, therefore, no

expert testimony was required. Id. at 12. Appellant avers “[i]t is without

debate or argument that the certificates filed by predecessor counsel were

filed under subsection (1) and not subsection (3).”             Id. at 15.    She


7
    Durkin v. Equine Clinics, Inc., 459 A.2d 417 (Pa. Super. 1983).
8
    Vazquez v. CHS Prof’l Practice, P.C., 39 A.3d 395 (Pa. Super. 2012).



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concludes it was error for the trial court to grant summary judgment. Id. at

16.

      Our review is governed by the following principles:

        “Our scope of review of a trial court’s order granting or
        denying summary judgment is plenary[.]” We may not
        disturb the order of the trial court unless it is established
        that the court committed an error of law or abused its
        discretion.

           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 he bears the
           burden of proof establishes the entitlement of the
           moving party to judgment as a matter of law.
           Lastly, we will review 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.

        Summary judgment should be granted when the “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.”

           Medical malpractice consists of a negligent or
           unskillful performance by a physician of the duties
           which are devolved and incumbent upon him on
           account of his relations with his patients, or of a
           want of proper care and skill in the performance of a
           professional act. Because medical malpractice is a
           form of negligence, to state a prima facie cause of



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           action, a plaintiff must demonstrate the elements of
           negligence: duty owed by the physician to the
           patient, a breach of that duty by the physician, that
           the breach was the proximate cause of the harm
           suffered, and the damages suffered were a direct
           result of harm. With all but the most self-evident
           medical malpractice actions there is also the added
           requirement that the plaintiff must provide a
           medical expert who will testify as to the
           elements of duty, breach, and causation.

Vazquez, 39 A.3d at 397-98 (some citations omitted and emphasis added).

     In Durkin, this Court held that

        no presumption of inference of negligence arises merely
        because the medical treatment culminates in a bad result.
        . . . . The question in this case involved a reaction to
        certain types and dosages of drugs and the possible cause
        of such a reaction. An adverse reaction to medication
        may have many possible causes. Therefore, this was
        not an appropriate case for an instruction on res ipsa
        loquitur.

Durkin, 459 A.2d at 419 (emphasis added).

     In the case sub judice, the trial court opined:

           [Appellant’s] Complaint alleges a brain injury resulting
        from the administration of the drug Dilaudid.

                                 *     *      *

           Because of her injury, [Appellant] cannot testify as to
        the administration of this drug. [Appellant] must produce
        a witness who can interpret and read a medical chart in
        order for the jury to understand the issues of negligence.
        An area of testimony for this individual would be, 1) was
        the drug indicated for this condition; 2) what is the correct
        dosage of the drug for a person with this condition; 3)
        what is the correct dosage for a person of [Appellant’s]
        height; 4) what is the correct dosage for a person of
        [Appellant’s] weight; [5] how should the drug be
        administered; 6) should the drug be administered once a


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        day or multiple times a day; 7) should the drug be
        administered through a PCA system; 8) what are the
        contra indications of administering this drug; 9) what are
        the side effect of administering this drug; 10) was the drug
        administered in too high a quantity; 11) was the drug
        administered over too short a period of time; or 12) was it
        a combination of all of these factors. This testimony,
        which may well be based upon an interpretation of
        the medical charts, requires an expert.

Trial Ct. Op. at 2, 3 (emphasis added). We agree. Based upon Appellant’s

failure to produce expert reports, we discern no error of law or abuse of

discretion by the trial court in granting Appellees’ motion for summary

judgment. See Vazquez, 39 A.3d at 397-98.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015




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