J-A01022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AUDREY J. SLATER, INDIVIDUALLY AND              IN THE SUPERIOR COURT OF
AS THE EXECUTRIX OF THE ESTATE OF                     PENNSYLVANIA
DONALD R. SLATER

                    v.

SAINT VINCENT HEALTH CENTER

APPEAL OF: ESTATE OF DONALD R.
                                                    No. 896 WDA 2016
SLATER


                Appeal from the Order Entered May 18, 2016
                In the Court of Common Pleas of Erie County
                     Civil Division at No(s): 13332-2012


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED MARCH 17, 2017

      Appellant, the Estate of Donald R. Slater, appeals from the order

entered on May 18, 2016, which granted the motion for summary judgment

filed by Saint Vincent Health Center (hereinafter “SVHC”).   We affirm.

      The trial court ably summarized the underlying facts of this case. We

quote a portion of the trial court’s opinion:

        In March[] 2006, Donald R. Slater was hospitalized at
        Hamot Medical Center [(hereinafter “Hamot Medical Center”
        or “Hamot”)] as a result of a motorcycle accident. During
        his stay at Hamot, Mr. Slater was involved in a fall that
        resulted in his paralysis from the waist down. He was
        released from Hamot in April[] 2006. Mr. Slater [and Mr.
        Slater’s wife, Audrey J. Slater (hereinafter “Audrey Slater”
        or “Mrs. Slater”),] filed a lawsuit on August 4, 2006 against
        Hamot for injuries related to [Mr. Slater’s] care [and] fall.

Trial Court Opinion, 5/18/16, at 1.



*Retired Senior Judge assigned to the Superior Court.
J-A01022-17



     The Slaters’ action against Hamot was docketed in the Court of

Common Pleas of Erie County, at number 12290-2006.           Their complaint

against Hamot reads, in relevant part, as follows:

        3. On or about March 30, 2006, [Mr. Slater] presented to
        the Hamot Medical Center Emergency Department via
        ambulance.

        4. Mr. Slater was admitted to Hamot [] where he underwent
        an MRI of the thoracic spine revealing type “B” thoracic
        fracture with complete disruption of the anterior and
        posterior ligamentis complexes.

        5. On or about April 4, 2006, [Mr. Slater] underwent
        thoracic spine surgery receiving a laminectomy at T2-3 with
        a fusion and pedicle screws implanted.

        6. Post-operatively[, Mr. Slater] received physical therapy
        services where he walked with assistance including
        personnel and a walker.

        7. [Mr. Slater] was fitted with a back brace and was
        encouraged by staff to ambulate with assistance.

        8. On or about April 9, 2006, [Mr. Slater], a patient in Room
        448, was assisted with ambulation to the bathroom by two
        [] patient care assistants [(hereinafter “PCAs”)] who walked
        on each side of [Mr. Slater] supporting him under the arm
        and shoulder.

        9. Upon information and belief, after accompanying [Mr.
        Slater] to the bathroom, the two [] PCAs departed from
        Room 448, leaving [Mr. Slater] alone and unattended.

        10. [Mr. Slater] rang for assistance to be accompanied from
        the bathroom back to bed, and one PCA responded to the
        bathroom to assist him.

        11. The sole PCA who responded to the call guided [Mr.
        Slater] from behind while [Mr. Slater] walked from the
        bathroom to bed.

                                    -2-
J-A01022-17



       12. [Mr. Slater] dropped to the floor landing on his knees
       and twisting his back.

                                    ...

       16. On or about April 17, 2006, [Mr. Slater] received
       additional surgery and it was determined the T-3 lamina
       was causing some depression of the dural sac laterally, an
       incomplete spinal cord injury.

       17. Despite repair of the refractured T-3 portion of [Mr.
       Slater’s] spine, he has been unable to bear weight since the
       fall described heretofore that occurred on April 9, 2006.

                                    ...

       19. [Hamot], through its agents, servants and/or
       employees, acting within the scope of their agency and/or
       employment, were negligent and their negligence was a
       substantial factor in producing harm to [Mr. Slater] and/or
       increased risk to [Mr. Slater] in some or all of the following
       particulars:

                                    ...

       20. As a direct and proximate result of the conduct set
       forth heretofore, [Mr. Slater] has suffered the following
       injuries and damages:

          a. [Mr. Slater] was been the victim of a long period of
          pain and suffering;

          b. [Mr. Slater’s] ability to walk has been eliminated or
          substantially reduced;

          c. [Mr. Slater’s] ability to stand and bear weight has
          been eliminated or substantially reduced;

                                      ...

          e. [Mr. Slater’s] recovery from injuries sustained in the
          motorcycle accident of March 30, 2006 was interrupted


                                   -3-
J-A01022-17


            and, in fact, lost as a result of [Mr. Slater’s] fall on April
            9, 2006;

            f. [Mr. Slater’s] T-3 vertebrae was refractured;

            g. [Mr. Slater] suffered an incomplete disruption of the
            spinal cord;

                                         ...

            k. [Mr. Slater’s] bowel and bladder functions have been
            substantially impaired;

                                         ...

        21. [Audrey Slater] is entitled and demands such damages
        as a result of loss of consortium. . . .

        WHEREFORE, [the Slaters] claim damages from [Hamot] in
        excess of the limits of arbitration. . . .

Audrey J. Slater, Individually and as the Executrix of the Estate of Donald R.

Slater Complaint Against Hamot, 8/4/06, at 1-6.

      As the trial court explained:

        Due to his paralysis, Mr. Slater was bound to a wheelchair
        and was required to self-catheterize daily.      The self-
        catheterization caused [Mr. Slater] repeated urinary tract
        infections.

        On August 14, 2006, Mr. Slater presented to [SVHC] with
        sepsis caused by multiple urinary tract infections.        On
        August 16, 2006, Dr. Fred W. Holland, a cardiothoracic
        surgeon, performed an aortic valve replacement on Mr.
        Slater. Dr. Holland left the hospital at 5:30 p.m. that day.

        Around 7:00 p.m., Mr. Slater’s condition began to
        deteriorate – his central venous pressure rose, his blood
        pressure fell and drainage from his chest tube increased.
        Nurses updated Dr. Holland regarding Mr. Slater’s
        worsening condition via [tele]phone calls.   Dr. Holland



                                      -4-
J-A01022-17


        issued verbal orders in response. Dr. Holland did not return
        to the hospital to respond to Mr. Slater’s condition.

        At some point in the evening of August 16, 2006, Dr.
        Holland told the nurses to call Dr. James P. Takara, who
        was on call, to respond to Mr. Slater’s symptoms.
        According to Dr. Takara, he was informed of Mr. Slater’s
        condition around 8:30 p.m. and left his house at 8:46 p.m.
        The medical records show Dr. Takara arrived at the hospital
        at 8:50 p.m.

        Mr. Slater coded at 8:50 p.m. and was taken to the
        operating room at 9:35 p.m. Mr. Slater suffered an anoxic
        brain injury due to a lack of oxygen flowing to his brain.
        Doctors informed Mr. Slater’s family he would not recover.
        Care was withdrawn and Mr. Slater died on August 19,
        2006.     The death certificate authored by Dr. Holland
        identified the cause of death as multiple organ failure and
        endocarditis.

        After Mr. Slater’s death, Audrey Slater was substituted as
        the Plaintiff against Hamot individually and as Executrix of
        the Estate of Donald R. Slater.

Trial Court Opinion, 5/18/16, at 1-2.

      The lawsuit against Hamot settled on April 8, 2010 – or, approximately

four years after Mr. Slater died – when Audrey J. Slater, Individually and as

the Executrix of the Estate of Donald R. Slater, executed a “Full and Final

Release” (hereinafter “the Release”). In relevant part, the Release declares:

                         FULL AND FINAL RELEASE

        1. FOR AND IN CONSIDERATION of the sum of
        [$125,000.00] payable within [30 days] of the receipt of
        this executed Full and Final Release, the undersigned
        hereby fully and forever releases, acquits, and discharges:
        HAMOT MEDICAL CENTER, its trustees, members,
        successors, affiliates, directors, officers, employees, nurses,
        therapists, technicians, agents and servants, and ANY AND
        ALL OTHER PERSONS, CORPORATIONS AND/OR OTHER


                                     -5-
J-A01022-17


       ENTITIES that are or might be claimed to be liable to the
       undersigned whether or not named herein, including the
       heirs, executors, administrators, successors, assigns,
       attorneys, insurers, servants and employees of each of
       them (hereafter referred to collectively as “Releasees”),
       third party administrators, from any and all actions, causes
       of action, claims or demands, of whatever kind or nature,
       for any known or unknown injuries, losses or damages
       allegedly sustained by the undersigned and related in any
       way to any incident and/or medical or professional health
       care services rendered by and/or on the premises of any
       Releasee and on account of which a Legal Action was
       instituted by the undersigned in the Court of Common Pleas
       of Erie County, Pennsylvania at No. 12290-2006, or at any
       other number or in any other Court.

       2.    The acceptance of said sum is in full accord and
       satisfaction of a disputed claim and the payment of said
       sum is not an admission of any liability.

       3. This release and settlement is intended to cover and does
       cover not only all now known injuries, losses or damages,
       but any future injuries, losses or damages not now known
       or anticipated, but which may later develop or be
       discovered, including all the effects and consequences
       thereof.

       4. The amount stated in this Full and Final Release is the
       consideration of this release, and the undersigned
       voluntarily accepts said sum for the purpose of making a full
       and final compromise, adjustment and settlement of all
       claims that she and the Estate of Donald R. Slater might
       now or in the future have for any injuries, losses or
       damages.

       5. This is the complete release agreement, and there are no
       written or oral understanding or agreements, directly or
       indirectly connected with this release and settlement that
       are not incorporated herein.

       6. The undersigned agrees, on behalf of herself, the Estate
       of Donald R. Slater and on behalf of all of its heirs,
       beneficiaries, successors and/or assigns, to indemnify and
       save forever harmless the Releasees from and against any

                                   -6-
J-A01022-17


        and all claims, demands or actions, known or unknown,
        made against the Releasees by any person or entity on
        account of, or in any manner related to the injuries, losses
        and/or damages covered by this Full and Final Release.

                                      ...

        11. THE UNDERSIGNED HEREBY DECLARES that she has
        capacity and is duly authorized to enter into this Full and
        Final Release, that she has read all of the terms of this Full
        and Final Release, has discussed them or had the
        opportunity to discuss them with her legal counsel, fully
        understands them and accepts them for the express
        purposes of settling the above-described claim and for
        precluding forever any further or additional legal action
        arising out of the aforesaid claims and/or circumstances.

        IN WITNESS WHEREOF, I have set my hand and seal this
        8th day of April, 2010.

                                /s__________________________
                                Audrey Slater, Individually and as
                                Administratrix of the Estate of
                                Donald R. Slater, deceased

Release, dated 4/8/10, at 1-3 (emphasis in original).

      On October 2, 2012, Audrey J. Slater, Individually and as the Executrix

of the Estate of Donald R. Slater (hereinafter “the Plaintiff”), instituted the

current wrongful death and survival action against SVHC, by filing a praecipe

for a writ of summons.        In her complaint, the Plaintiff raised corporate

negligence claims against SVHC; in essence, the Plaintiff alleged that SVHC

was negligent on August 16, 2006, when it failed to ensure that doctors

“timely appear[ed]” to care for Mr. Slater. The Plaintiff’s operative complaint

declared, in relevant part:

        4. [Audrey Slater] brings this action on [her] own behalf
        and on behalf of all persons entitled to recover damages for

                                      -7-
J-A01022-17


       the survival action and wrongful death of Donald R. Slater
       pursuant to 42 Pa.C.S.A. §§ 8301 & 8302[] and Pa.R.C.P.
       []2202(a).

                                    ...

       6. During his lifetime, Donald R. Slater did not commence
       any action to recover damages for the injuries which caused
       his death, and no other action has been filed to recover
       damages for the wrongful death or survival claim of Donald
       R. Slater.

                                    ...

       I. Factual Background:      Tolling the Statute of
       Limitations for Wrongful Death and Survival Claim of
       Donald R. Slater Based on Medical Negligence

       14. At the time of [Donald Slater’s] death, [SVHC]
       fraudulently concealed[], affirmatively misrepresented[,]
       and[/]or unintentionally deceived [] the facts and
       circumstances that [led] to Mr. Slater’s death from his
       family by:

          a) failing to advise Mr. Slater or his family that a serious
          event had occurred;

          b) failing to advise in writing noncompliance with
          Department      of   Health     regulations where that
          noncompliance seriously compromises quality assurance
          or patient care for Mr. Slater;

          c) leaving out of Mr. Slater’s medical records the details
          regarding his care on August 16, 2006, including the
          failure of doctors to appear when he was critically ill;

                                    ...

       16. In light of these actions by [SVHC], the statute of
       limitations to assert a claim for Mr. Slater’s wrongful death
       and survival claims has been tolled, until his family learned
       what happened regarding his medical care.




                                   -8-
J-A01022-17


       II. Factual Background for the Medical Negligence
       that Caused the Brain Death of Donald R. Slater

       17. On August 16, 2006, Mr. Slater had aortic valve repair
       as the result of the diagnosis of endocarditis, performed by
       Dr. Holland.

       18. By 4:30 [p.m.], Mr. Slater had returned to his room, but
       monitoring of his condition did not begin immediately.

       19. By 7:00 [p.m.] to 8:00 [p.m.] that day, Mr. Slater’s
       central venous pressure was rising, his blood pressure was
       falling[,] and he had increased drainage from his chest
       tube, indicating he had developed tamponade.

       20. According to testimony of nursing witnesses in Holland
       v. Saint Vincent Health Center, Erie County docket 15461-
       2007, nurses were calling Dr. Holland to come to the
       hospital to attend to his critically ill patient, Mr. Slater, who
       needed a cardiothoracic surgeon to relieve the symptoms
       that had developed.

       21. According to Dr. Holland, he told the nurses, after he
       signed out at 5:30 [p.m.] on August 16, 2006 and during
       subsequent phone calls, to call the on-call cardiothoracic
       surgeon, Dr. Takara regarding further care needed for Mr.
       Slater.

       22. According to Dr. Takara, he was never advised
       regarding the critically ill Mr. Slater until sometime between
       8:20 [p.m.] August 16, 2006 and 8:40 [p.m.] that same
       evening, and left his house at 8:46 [p.m.].

       23. According to medical records, Dr. Takara arrived at 8:50
       [p.m.] on August 16, 2006, which is not possible because
       Dr. Takara’s statement says he left his house at 8:46
       [p.m.].

       24. Mr. Slater coded at 8:50 [p.m.] on August 16, 2006.

       25. He was not taken to the operating room until 9:35
       [p.m.] on August 16, 2006.




                                     -9-
J-A01022-17


       26. As a result of the extended period of time without
       oxygen to his brain, Mr. Slater suffered an anoxic brain
       injury.

       27. Mr. Slater’s family was told there was no hope of
       recovery from the anoxic brain injury, care was
       discontinued and he expired on August 19, 2006.

       28. This was not the first time a patient died at [SVHC] as
       the result of a doctor not timely appearing. . . .

       29. Prior to Mr. Slater’s death, [SVHC] had been told
       numerous times . . . about doctors not timely appearing or
       being slow to respond to pages.

       30. Though . . . [SVHC] had received prior complaints about
       doctors not appearing timely or being slow to respond to
       pages prior to Mr. Slater’s death, it did not take definitive
       steps and put in place controls to correct this problem,
       which is outrageous, and in reckless disregard to the safety
       of its patients, and Mr. Slater in particular.

                                Count I
                  Estate of Donald R. Slater v. [SVHC]
                Corporate Negligence – Punitive Damages
                             Survival Claim

                                   ...

       33. [SVHC] breached the duty it owed when:

          a) it did not correct the problem of doctors not timely
          appearing after a patient died in 2004 as the result of a
          doctor not appearing and the failure to have a surgeon
          present for a critically ill cardiac patient;

                                     ...

          c) it did not implement a training and a warning system
          for the hospital and staff to alert administration that a
          doctor was not timely appearing;

          d) it did not fire doctors who were slow to respond or
          who did not timely appear; and

                                  - 10 -
J-A01022-17



          e) it did not implement a doctor call system that
          included protocols for the patient who not being cared
          for by the doctor who was not appearing.

       34. As a result of [SVHC’s] breach of the duties owed,
       [SVHC] caused and allowed Mr. Slater to suffer an anoxic
       brain injury.

                                   ...

       36. As a result of the previously described negligent conduct
       of [SVHC], Mrs. Slater brings this survival action . . . and
       seeks damages for the following items:

          a) Pain, suffering, inconvenience, anxiety, fear and
          nervousness of Mr. Slater on August 16, 2006;

          b) Additional pain he had to endure as the result of the
          failure to promptly address his tamponade;

          c) Mr. Slater’s lost retirement income; and

          d) Unnecessary hospital, medical, surgical and nursing
          expenses incurred on his behalf.

       37. [SVHC] knew, or had reason to know, of the substantial
       risk of death to Mr. Slater as the result of the failure of a
       doctor to appear for a critically ill patient.

       38. [SVHC] deliberately failed to act, was indifferent to and
       recklessly disregarded the substantial risk of death to a
       patient, and to Mr. Slater in particular, when a doctor does
       not appear for a critically ill patient, which is outrageous.

       WHEREFORE, Plaintiff Mrs. Slater, individually and as
       administrator of the Estate of Donald R. Slater, demands
       judgment be entered in favor of the Estate, for
       compensatory damages, punitive damages, and other sums
       in excess of the limits of arbitration. . . .




                                  - 11 -
J-A01022-17


                                   Count II
                     Estate of Donald R. Slater v. [SVHC]
                             Corporate Negligence
                                Wrongful Death

                                      ...

        40. As a result of the previously described negligent conduct
        of [SVHC], Mrs. Slater is entitled by law to recover damages
        for Mr. Slater’s wrongful death and has sustained the
        following damages:

            a) She has expended money for medical service and
            supplies incident to the treatment and subsequent death
            of Mr. Slater;

            b) She has expended money for funeral and estate
            expenses because of the death of Mr. Slater;

            c) She has been denied and will forever be deprived of
            the financial support, household services and all
            pecuniary benefits that [she] would have received from
            Mr. Slater; and

            d) She has incurred and will continue to incur the
            expenses of administration of the Estate of Mr. Slater.

        WHEREFORE, Plaintiff Mrs. Slater, individually and as
        administrator of the Estate of Donald R. Slater, demands
        judgment be entered in favor of the Estate, for
        compensatory damages, and other sums in excess of the
        limits of arbitration.

The Plaintiff’s Second Amended Complaint, 12/18/12, at 1-10 (internal

italicization omitted and some internal capitalization omitted).

      On May 18, 2015, SVHC filed a motion for summary judgment. SVHC

sought summary judgment on the following five bases:

        1) Plaintiff failed to file the within action within the
        applicable statute of limitations and the statute of
        limitations should not be tolled as [SVHC] did not


                                    - 12 -
J-A01022-17


        affirmatively conceal any facts relative to Mr. Slater’s
        admission; 2) Plaintiff [is] seeking duplicative damages
        under the Wrongful Death Act; 3) Plaintiff[‘s] claims are
        barred per the Release entered into within the Slater v.
        Hamot Medical Center case; 4) [SVHC] was not
        corporately negligent in the care or treatment of Mr.
        Slater[] and[,] Plaintiff [has] not submitted any facts to
        support a claim for punitive damages.

SVHC’s Motion for Summary Judgment, 5/18/15, at 2.

      With respect to these grounds, SVHC first argued that it was entitled

to summary judgment because the statute of limitations on the Plaintiff’s

action expired. SVHC noted that the statute of limitations in this negligence

action was two years, and that the Plaintiff did not institute her current suit

until over six years after Mr. Slater’s death. Id. at 5. Further, SVHC argued

that the statute of limitations on the Plaintiff’s claims was not tolled because

SVHC “did not affirmatively conceal any facts of Mr. Slater’s care . . . [and

SVHC] complied with Mrs. Slater’s request for information and her husband’s

medical records and she decided to continue with a claim against Hamot

Medical Center for the death of her husband.” Id. at 6.

      Next, SVHC argued that it was entitled to summary judgment in its

favor because the Plaintiff “already recovered damages under both the

Wrongful Death Act and Survival Act [in the] prior lawsuit” against Hamot

Medical Center.     Id.    To support this claim, SVHC attached certain

documents to its motion, which the Plaintiff had filed in her prior lawsuit

against Hamot.     These documents were, first, proof that, following Mr.

Slater’s death, “Audrey Slater, Individually and as Administratrix of the



                                     - 13 -
J-A01022-17



Estate of Donald R. Slater” became the named plaintiff in the Hamot

lawsuit.     Second, SVHC attached the Plaintiff’s pretrial statement in the

Hamot lawsuit. Within the Hamot pretrial statement, the Plaintiff wrote:

           As a result of [Mr. Slater’s April 9, 2006] fall [at Hamot],
           Mr. Slater was no longer able to bear any weight, and he
           developed a neurogenic bowel and bladder requiring a
           catheter and suppositories. [A doctor at Hamot] performed
           surgery to drain the blood. Mr. Slater was transferred to
           [SVHC] for further efforts at rehabilitation.        He was
           discharged on June 28, 2006, with no change in his
           condition. Mr. Slater chose to go home rather than a
           nursing home due to the cost associated with living in a
           nursing home. He was required to self-catheter and needed
           suppositories and received some in-home care from nurses
           contracted through the Veterans Administration Hospital.
           Despite their best efforts, fecal material infiltrated his
           catheter and Mr. Slater became septic.                Despite
           administration of antibiotics, his infection returned and he
           was admitted to [SVHC] in septic shock on August 10,
           2006, and he passed away on August 19, 2006.

                                         ...

           Plaintiff[s] contend[] that Hamot Medical Center failed to
           provide a safe environment with safe equipment for Mr.
           Slater increasing the risk of harm, which in fact occurred in
           this case. . . . Without adequate safety precautions, Mr.
           Slater fell causing the rebleeding of his surgical site, causing
           impairment of his spinal cord, which manifested itself in the
           neurogenic bowel and bladder, and lack of ability to bear
           weight.      Without the fall, Mr. Slater’s epidural
           hematoma would have reabsorbed. . . .                       The
           additional blood prevented that from happening and
           led, inevitably, to neurogenic bowel and bladder, fecal
           contamination, septic shock and death.

The Plaintiff’s Pretrial Statement in the Hamot Case, attached as Exhibit D

to SVHC’s Motion for Summary Judgment, at 1-3 (emphasis added).



                                        - 14 -
J-A01022-17



      SVHC also attached two expert reports that the Plaintiff produced in

the litigation against Hamot.       The first expert report was authored by

Matthew R. Marlin, Ph.D and entitled “The Economic Loss Resulting from the

Death of Donald R. Slater.” Expert Report by Matthew R. Marlin, Ph.D in the

Hamot Case, attached as Exhibit P to SVHC’s Motion for Summary

Judgment, at 1. The report declared that, as a result of Mr. Slater’s death,

the Plaintiff sustained economic losses from: “[1)] Mrs. Slater’s lost pension

and Social Security benefits[; 2)] Mrs. Slater’s lost health insurance[; and,

3)] the lost value of [Mr. Slater’s] household services.” Id. at 1. According

to Dr. Marlin’s report: “the economic loss resulting from the death of Mr.

Donald Slater on August 19, 2006 as the result of a fall which occurred on

April 9, 2006 equals an estimated $598,900[.00].” Id.

      Further, SVHC attached another expert report that the Plaintiff

produced in the Hamot litigation.       The report, which was authored by

Bernard S. Strauss, M.D., stated:

        It is my opinion within a reasonable degree of medical
        certainty that these bacteria, specifically E. coli and
        enterococcus facalis, were introduced into Mr. Slater’s
        bladder in the course of his straight catheterizations,
        resulting in an acute urinary tract infection which
        progressed to urosepsis and his ultimate demise.

        I am of the opinion that the fall of 4/09/06 was
        causally related to the development of the epidural
        hemorrhage and hematoma, the neurogenic bladder,
        and eventual urosepsis leading to his death.




                                     - 15 -
J-A01022-17



Expert Report by Bernard S. Strauss, M.D. in the Hamot Case, attached as

Exhibit D to SVHC’s Motion for Summary Judgment, at 4 (emphasis added).

      For the third basis of SVHC’s summary judgment motion, SVHC

claimed that the Plaintiff’s case must be dismissed because the Plaintiff

“released any and all claims against [SVHC] through the general release”

that was signed on April 8, 2010, in the Hamot case.       SVHC’s Motion for

Summary Judgment, 5/18/15, at 10. According to SVHC, it was entitled to

benefit from the Release because the Plaintiff broadly released named and

unnamed persons, corporations, and entities:

        from any and all actions, causes of action, claims or
        demands, of whatever kind or nature, for any known or
        unknown injuries, losses or damages allegedly sustained by
        the undersigned and related in any way to any incident . . .
        on account of which a Legal Action was instituted by the
        undersigned in the Court of Common Pleas of Erie County,
        Pennsylvania at No. 12290-2006, or at any other number or
        in any other Court.

Release, dated 4/8/10, at 1 (some internal capitalization omitted).

      Further, the Release declared:

        This release and settlement is intended to cover and does
        cover not only all now known injuries, losses or damages,
        but any future injuries, losses or damages not now known
        or anticipated, but which may later develop or be
        discovered, including all the effects and consequences
        thereof.

Id.

      SVHC also moved for summary judgment on the ground that the

Plaintiff failed to demonstrate a prima facie case of corporate negligence.



                                    - 16 -
J-A01022-17



SVHC’s Motion for Summary Judgment, 5/18/15, at 10.            To support the

claims of corporate negligence, the Plaintiff submitted the expert reports of

Michael Culig, M.D. and Irvin Krukenkamp, M.D.        According to SVHC, the

Plaintiff cannot use the report of Dr. Culig because it is protected by a

confidentiality agreement, the attorney-client privilege, and the Peer Review

Protection Act. Id. at 11. Further, SVHC claimed that, even if the Plaintiff

were permitted to use Dr. Culig’s report, the Plaintiff “failed to submit

competent expert testimony that the hospital breached its duty to Mr. Slater

by failing to oversee the care being provided by Dr. Holland” and the Plaintiff

did not produce “any expert testimony that Dr. Holland’s failure to come to

Mr. Slater’s bedside to care for him resulted in Mr. Slater’s death.” Id.

      Finally, SVHC claimed that the Plaintiff’s claims for punitive damages

must be dismissed because the Plaintiff “failed to produce facts sufficient to

form a basis for punitive damages.” Id. at 12.

      The Plaintiff responded to SVHC’s summary judgment motion, arguing

that SVHC was not entitled to relief on any of its five asserted grounds.

First, the Plaintiff argued, SVHC was not entitled to summary judgment on

the statute of limitations ground because a factual question exists as to

whether SVHC sent Mrs. Slater a “serious event letter” and because SVHC

inaccurately completed Mr. Slater’s death certificate. The Plaintiff’s Brief in

Opposition to SVHC’s Motion for Summary Judgment, 6/18/15, at 33-43.

Second, the Plaintiff argued that SVHC was not entitled to summary

judgment on its claim that the Plaintiff sought “duplicative damages under

                                    - 17 -
J-A01022-17



the Wrongful Death Act” because “[t]he [c]omplaint in the Hamot matter

does not make a claim for wrongful death or survival.” Id. at 32. Third, the

Plaintiff contended that SVHC could not obtain summary judgment with

respect to the Release, as the Plaintiff filed the complaint against Hamot on

August 6, 2006 and SVHC did not commit its negligent act against Mr. Slater

until August 16, 2006.      According to the Plaintiff, “[f]rom the [R]elease

language, . . . it was intended to release anyone related to [the] medical

care at Hamot Medical Center as a result of an incident on April 9, 2006. . . .

[The Plaintiff] could not have intended to release [SVHC] for care [on]

August [16,] 2006, when [the Plaintiff] filed a complaint [against Hamot on]

August 6, 2006.” Id. at 24. Finally, the Plaintiff argued that she produced

sufficient evidence to withstand summary judgment on her corporate

negligence and punitive damage claims. See id. at 25-31.

      On May 18, 2016, the trial court granted SVHC’s motion for summary

judgment and dismissed the Plaintiff’s complaint.         As the trial court

explained, it granted SVHC’s summary judgment motion on every ground

but the expiration of the statute of limitations.

      The Estate of Donald R. Slater (hereinafter “Appellant”) filed a timely

notice of appeal from the trial court’s order. Appellant lists 19 claims in its

Pennsylvania Rule of Appellate Procedure 2116 statement of questions

involved section:

        1. A release should not be given effect to an unnamed party
        for claims that do not spring out of the incident in the


                                     - 18 -
J-A01022-17


       release and who was not part of the facts or incident that
       gave rise to the release, as identified in the release.

       2. A release should not be given effect to an unnamed party
       who was not a tortfeasor regarding the incident, date and
       docket number identified in the release and which gave rise
       to the release.

       3. A party who engaged in fraud and or concealment
       regarding the Estate’s decedent, should not get the benefit
       of a release as an unnamed party from an unrelated
       incident, where the court found material issues of fact
       regarding the unnamed party’s fraud and or concealment.

       4. An executrix of an Estate could not have intended to
       release unnamed parties for an incident not identified in the
       release, for events on different dates than identified in the
       release, or for an incident that does not rise out of the
       original incident identified in the release.

       5. An executrix of an Estate could not have intended to
       release unnamed parties for incidents that the unnamed
       party had a duty to advise them of, a serious event, and did
       not, pursuant to 40 P.S. § 1303.308(b).

       6. Where a hospital’s medical director did not truthfully
       complete the death certificate (Krapf [v. St. Luke’s
       Hospital, 4 A.3d 642 (Pa. Super. 2010)]), the hospital
       should not get the benefit of a release as an unnamed party
       for an unrelated incident.

       7. The record substantiates a claim for punitive damages
       where it demonstrates that at least two patients died in two
       years as a result of doctors not appearing for critically ill
       patients, the record demonstrates the hospital knew doctors
       did not appear, that hospital administrators knew doctors
       did not appear, the hospital administrators did [not] identify
       any change in procedure or policy as a result of doctors not
       appearing and multiple patients were injured.

       8. The corporate negligence of this defendant is obvious
       where the Estate claimed the hospital knew doctors were
       not showing up and at least two patients died, is
       substantiated by the hospital’s own records it allowed the

                                   - 19 -
J-A01022-17


       Slater Estate to purchase in another matter from the court
       reporter, where the record contains admissions by the
       defendant and one of it[s] experts of underlying negligence
       that caused [Mr. Slater’s] death, and the record contains
       expert opinions regarding the underlying negligence that
       caused patients [to] die as a result of negligence.

       9. Where hospital concealed the facts surrounding the care
       of [Mr. Slater] in the medical record and its medical director
       misrepresented the cause of death in the death certificate,
       and the decedent Estate experts in a prior claim relied on
       those, the hospital should not benefit from those actions by
       the dismissal of the claims against it by [Mr. Slater’s]
       Estate.

       10. The fraudulent concealment and or affirmative
       misrepresentation of a hospital, regarding the decedent’s
       death where a hospital had a duty to advise a patient of a
       serious event or the patient[‘s] family, should not be
       rewarded by dismissing this claim.

       11. By dismissing this claim, this court perpetuates the
       fraud that [Mr. Slater] died from events on the death
       certificate that do not comply with the regulatory duties to
       complete the death certificate and rewards the fraudulent
       concealment or affirmative misrepresentation of a hospital.

       12. As a result of a hospital’s fraudulent concealment or
       affirmative misrepresentation, [Mr. Slater’s] Estate was
       prevented from finding out the true cause of his death and
       relaxed its vigilance and as such, claims against the
       offending hospital should not be dismissed.

       13. A wrongful death claim is not duplicative as a result of a
       prior action where no Wrongful Death or Survival Claims
       were ever asserted in a complaint, damages were recovered
       and a release was signed.

       14. Th[e trial] court committed an error of law or abused its
       discretion of law in dismissing the claims against a hospital
       in finding this hospital is an entity within the realm of
       entities who were released in the Hamot release.




                                   - 20 -
J-A01022-17


        15. Th[e trial] court committed an error of law or abused its
        discretion in finding that the Slater Estate had not identified
        any damages in this case that were not demanded or
        recovered in the Hamot litigation.

        16. Th[e trial] court committed an error of law or abused its
        discretion in failing to find a prima facie case of corporate
        negligence, as the corporate negligence is obvious and
        there are two expert reports of the underlying negligence.

        17. Th[e trial] court committed an error of law or abused its
        discretion in finding the Slater Estate has failed to establish
        a basis for punitive damages.

        18. Th[e trial] court committed an error of law or abused its
        discretion in finding that the Slater Estate failed to adduce
        evidence in support of its claims for over a decade, where
        there is a material issue of fact regarding [SVHC’s]
        fraudulent concealment, where [SVHC] failed to truthfully
        complete the death certificate, did not send serious event
        letter and admitted the incident regarding Mr. Slater was a
        serious event, did not advise the Department of Health of
        facts that seriously compromise patient safety, and did not
        note in the patient’s medical record the unusual event
        having a direct medical effect on the patient.

        19. Where a patient is dead, and their family has no way of
        knowing the true facts as to the cause of death, and where
        there is a question of fact regarding [SVHC’s] fraudulent
        concealment or affirmative misrepresentation tolling the
        statute of limitations, claims against [SVHC] who engaged
        in that conduct should not be dismissed; dismissing the
        claims against the hospital who engaged in this conduct
        perpetuates and rewards this conduct.

Appellant’s Brief at 4-8 (some internal capitalization and italicization

omitted).

     We will restate Appellant’s lengthy, repetitive, and rule-infringing

statement of questions involved in the following manner:




                                    - 21 -
J-A01022-17


       1. The trial court erred in concluding that, when the Plaintiff
       signed the Release in the Hamot case, the Plaintiff released
       SVHC from the current claims because: a) SVHC was not
       “an entity within the realm of entities who were released in
       the Hamot litigation;” b) the facts underlying the instant
       claims “do not spring out of the incident in the release and
       [are] not part of the facts or incident that gave rise to the
       [R]elease;” c) SVHC was not named in the Release and
       “was not a tortfeasor regarding the incident, date and
       docket number identified in the [R]elease and which gave
       rise to the [R]elease;” d) SVHC “engaged in fraud [and/or]
       concealment regarding” Mr. Slater; e) the events that gave
       rise to the current lawsuit occurred on “different dates than
       [those] identified in the release;” f) SVHC did not inform
       Mrs. Slater of the “serious event” that occurred at SVHC;
       and, g) SVHC’s medical director “did not truthfully complete
       the death certificate.” See Appellant’s Brief at 4-5 and 6
       (claims numbered 1-6 and 14).

       2) The trial court erred in concluding that the Plaintiff
       already recovered damages under the Wrongful Death Act
       because “no wrongful death or survival claims were ever
       asserted in” the complaint against Hamot. See Appellant’s
       Brief at 6 and 7 (claims numbered 13 and 15).

       3) The trial court erred in concluding that SVHC was entitled
       to summary judgment with respect to the corporate
       negligence claims because “[t]he corporate negligence of
       [SVHC] is obvious and there are two expert reports of the
       underlying negligence.” See Appellant’s Brief at 5 and 7
       (claims numbered 8 and 16).

       4) The trial court erred in concluding that SVHC was entitled
       to summary judgment with respect to the punitive damages
       claims because the record demonstrates that “at least two
       patients died in two years as a result of doctors not
       appearing for critically ill patients, . . . the hospital knew
       doctors did not appear, [] hospital administrators knew
       doctors did not appear, the hospital administrators did [not]
       identify any change in procedure or policy as a result of
       doctors not appearing and multiple patients were injured.”
       See Appellant’s Brief at 5 and 6 (claims numbered 7 and
       17).


                                   - 22 -
J-A01022-17



         5) The trial court erred in granting summary judgment on
         the ground that the statute of limitations had expired on the
         claims because: SVHC “concealed the facts surrounding the
         care of [Mr. Slater] in the medical record and its medical
         director misrepresented the cause of death in the death
         certificate;” SVHC “had a duty to advise a patient of a
         serious event or the patient[s’] family” and did not do so;
         and, “[a]s a result of [SVHC’s] fraudulent concealment or
         affirmative misrepresentation, [Mr. Slater’s] Estate was
         prevented from finding out the true cause of his death and
         relaxed its vigilance.” See Appellant’s Brief at 5-6 and 7
         (claims numbered 9-12 and 18).1

       As this Court has stated:

         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.

         Summary judgment is appropriate only when the record
         clearly shows that there is no genuine issue of material fact
         and that the moving party is entitled to judgment as a
         matter of law. The reviewing court must view the record in
         the light most favorable to the nonmoving party and resolve
         all doubts as to the existence of a genuine issue of material
         fact against the moving party. Only when the facts are so
         clear that reasonable minds could not differ can a trial court
         properly enter summary judgment.

Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007)

(internal citations omitted).




____________________________________________


1
  We note that the trial court did not grant summary judgment on the
ground that the statute of limitations had expired.




                                          - 23 -
J-A01022-17



       First, Appellant claims that the trial court erred when it granted

summary judgment based upon the terms of the Release.                   Within the

argument section of Appellant’s brief, Appellant raises two claims: 1) that,

under the plain terms of the Release, the Plaintiff only released “Hamot and

others for claims made at Erie County docket 12290-2006” and, since the

Plaintiff “never made a claim against [SVHC] for the injuries sustained by

Mr. Slater at Hamot Medical Center,” the Release does not cover the

Plaintiff’s current claims and 2) that SVHC either committed fraud or

affirmative misrepresentation when it “did not inform Mrs. Slater of the

‘serious event’ and when SVHC’s medical director “did not truthfully

complete the death certificate” and, as a result of this fraud, SVHC cannot

“use this Release as a defense.”2              Appellant’s Brief at 48-50 (emphasis

omitted). We conclude that Appellant’s claims either fail or are waived.

       Our Supreme Court has held:

         In Pennsylvania, it is well settled that the effect of a release
         is to be determined by the ordinary meaning of its
         language. The enforceability of settlement agreements is
         governed by principles of contract law. Courts will enforce a
         settlement agreement if all its material terms have been
____________________________________________


2
  Any claim that is contained in the statement of questions involved section
of Appellant’s brief but which is not contained in the argument section is
waived. Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999)
(“[the Pennsylvania Supreme Court] has held that an issue will be deemed
to be waived when an appellant fails to properly explain or develop it in his
brief”); Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa. Super. 2011)
(holding that the Superior Court “may not act as counsel for an appellant
and develop arguments on his behalf”).



                                          - 24 -
J-A01022-17


        agreed upon by the parties. A settlement agreement will
        not be set aside absent a clear showing of fraud, duress, or
        mutual mistake.

        Further support for enforcing settlement agreements
        according to contract law principles is found in
        [Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa.
        1989),] where th[e Pennsylvania Supreme] Court opined:

           Parties with possible claims may settle their differences
           upon such terms as are suitable to them. They may
           include or exclude terms, conditions and parties as they
           can agree. In doing so, they may yield, insist or reserve
           such right as they choose. If one insists that to settle,
           the matter must end then and forever, as between
           them, they are at liberty to do so. They may agree for
           reasons of their own that they will not sue each other or
           any one for the event in question. However improvident
           their agreement may be or subsequently prove for either
           party, their agreement, absent fraud, accident or mutual
           mistake, is the law of their case.

        Buttermore, 561 A.2d at 735. . . .

        If such a release can be nullified or circumvented, then
        every written release and every written contract or
        agreement of any kind no matter how clear and pertinent
        and all-inclusive, can be set aside whenever one of the
        parties has a change of mind or whenever there
        subsequently occurs a change of circumstances which were
        unforeseen, or there were after-discovered injuries, or the
        magnitude of a releasor's injuries was unexpectedly
        increased, or plaintiff made an inadequate settlement.

Pennsbury Village Assocs., LLC v. McIntyre, 11 A.3d 906, 914-915 (Pa.

2011) (some internal quotations and citations omitted).

     Appellant first claims that the trial court erred in granting summary

judgment based upon the terms of the Release because the Plaintiff “could

not have intended to release [SVHC] for [its] care [on] August[, 16] 2006,



                                   - 25 -
J-A01022-17



when [the Plaintiff] filed [the] complaint [against Hamot on August 6,

2006].” According to Appellant, under the plain terms of the Release, the

Plaintiff only released “Hamot and others for claims made at Erie County

docket 12290-2006” and, since the Plaintiff “never made a claim against

[SVHC] for the injuries sustained by Mr. Slater at Hamot Medical Center,”

the Release does not cover the Plaintiff’s current claims. Appellant’s Brief at

48-49 (emphasis omitted). This argument fails.

      Appellant wishes for this Court to erase the expansive language

contained in this general release and interpret the Release in a manner that

the parties to the Release did not intend; specifically, Appellant wishes this

Court to hold that the Release only applies to the specific claims the

Plaintiff raised in the Hamot complaint. Appellant’s Brief at 48-50. We will

not   disregard   the   “ordinary   meaning   of   [the   Release’s]   language.”

Pennsbury Village Assocs., 11 A.3d at 914.

      The language in this Release is extremely broad and declares, in

relevant part:

        FOR AND IN CONSIDERATION of the sum of [$125,000.00]
        . . . the undersigned hereby fully and forever releases,
        acquits, and discharges: HAMOT MEDICAL CENTER . . . and
        ANY AND ALL OTHER PERSONS, CORPORATIONS
        AND/OR OTHER ENTITIES that are or might be
        claimed to be liable to the undersigned whether or
        not named herein, . . . (hereafter referred to collectively
        as “Releasees”), . . . from any and all actions, causes of
        action, claims or demands, of whatever kind or
        nature, for any known or unknown injuries, losses or
        damages allegedly sustained by the undersigned and
        related in any way to any incident and/or medical or


                                     - 26 -
J-A01022-17


        professional health care services rendered by and/or
        on the premises of any Releasee and on account of
        which a Legal Action was instituted by the
        undersigned in the Court of Common Pleas of Erie
        County, Pennsylvania at No. 12290-2006, or at any
        other number or in any other Court.

                                       ...

        This release and settlement is intended to cover and
        does cover not only all now known injuries, losses or
        damages, but any future injuries, losses or damages
        not now known or anticipated, but which may later
        develop or be discovered, including all the effects and
        consequences thereof.

Release, dated 4/8/10, at 1-3 (emphasis added).

     Contrary to Appellant’s claim, the Release did not merely release

“Hamot and others for claims made at Erie County docket 12290-2006.”

Appellant’s Brief at 48 (emphasis omitted).   Rather, the Release released

Hamot and “any and all other persons, corporations and/or other entities

that are or might be claimed to be liable to the undersigned whether or not

named:”

        I) from any and all actions, causes of action, claims or
        demands, of whatever kind or nature,

           A) for any known or unknown injuries, losses or
           damages allegedly sustained by the undersigned and

               1) related in any way

                  a) to any incident and/or

                  b) medical or professional health care services
                  rendered by and/or

                  c) on the premises of any Releasee and


                                   - 27 -
J-A01022-17



               2) on account of which a Legal Action was instituted
               by the undersigned in the Court of Common Pleas of
               Erie County, Pennsylvania at No. 12290-2006, or at
               any other number or in any other Court.

Release, dated 4/8/10, at 1-3.

     Under the plain terms of the Release, the Plaintiff thus released named

and unnamed individuals and entities “from any and all actions, causes of

action, claims or demands . . . for any known or unknown injuries, losses or

damages [they] sustained” that were “related in any way to any incident

. . . on account of which a Legal Action was instituted by the undersigned in

the Court of Common Pleas of Erie County, Pennsylvania at No. 12290-2006,

or at any other number or in any other Court.” Id. (emphasis added). The

great breadth of this language plainly thwarts Appellant’s specific claim on

appeal: that the Release only released “Hamot and others for claims made

at Erie County docket 12290-2006 . . . [and, since the Plaintiff] never made

a claim against [SVHC] for the injuries sustained by Mr. Slater at Hamot

Medical Center,” the Release does not cover the Plaintiff’s current claims.

Appellant’s Brief at 48-50 (emphasis added). To be sure, since the Release

covered claims for damages or injuries “related in any way to any

incident . . . on account of which a Legal Action was instituted by the

undersigned in the Court of Common Pleas of Erie County, Pennsylvania at

No. 12290-2006, or at any other number or in any other Court,” the Release

plainly extended beyond the specific “claims made at Erie County docket

12290-2006.”    Release, dated 4/8/10, at 1-3 (emphasis added); Appellant’s


                                   - 28 -
J-A01022-17



Brief at 48 (emphasis omitted).            Therefore, Appellant’s claim on appeal

immediately fails.3

       With respect to the Release, Appellant also claims that SVHC either

committed fraud or affirmative misrepresentation when it did not inform Mrs.

Slater of the “serious event” and when SVHC’s medical director “did not

truthfully complete the death certificate.”             Appellant’s Brief at 49-50.

Although Appellant acknowledges that “there [was] no fraud or mistake in

procuring the Hamot release,” Appellant claims that it alleged that SVHC

committed an independent fraud and, as a result, SVHC cannot “use this

Release as a defense.”        Id. at 49-50.        This claim is waived because:   1)

Appellant did not raise the claim in its response to SVHC’s motion for

summary judgment; 2) Appellant has cited to absolutely no case law to

support its claim; and, 3) besides Appellant’s conclusory statement,
____________________________________________


3
   In the argument section of Appellant’s brief, Appellant does not claim that
the trial court erred when it relied upon the pretrial statement and expert
reports the Plaintiff filed in the Hamot litigation, to support its grant of
summary judgment. See Appellant’s Brief at 46-50. The trial court used
the pretrial statement and expert reports the Plaintiff filed in the Hamot
litigation as proof that the Plaintiff’s current claims were “related” “to any
incident” “on account of which a Legal Action was instituted . . . in the Court
of Common Pleas of Erie County . . . at No. 12290-2006” – and, thus, that
the Plaintiff’s current claims are subsumed by the Release. Trial Court
Opinion, 5/18/16, at 6-7. Since Appellant does not claim error in this regard
and since Appellant does not contest the trial court’s conclusion that the
pretrial statement and expert reports establish that the current claims are
“related” “to any incident” “on account of which a Legal Action was instituted
. . . in the Court of Common Pleas of Erie County . . . at No. 12290-2006,”
we will not discuss this issue further.




                                          - 29 -
J-A01022-17



Appellant has provided this Court with no argument to support the claim.

See The Plaintiff’s Brief in Opposition to SVHC’s Motion for Summary

Judgment, 6/18/15, at 22-25; Appellant’s Brief at 48-50; see also Harber

Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100,

1104-1105 (Pa. Super. 2000) (“[b]ecause, under [Pennsylvania Rule of Civil

Procedure] 1035.3, the non-moving party must respond to a motion for

summary judgment, he or she bears the same responsibility as in any

proceeding, to raise all defenses or grounds for relief at the first opportunity.

A party who fails to raise such defenses or grounds for relief may not assert

that the trial court erred in failing to address them”); Spotz, 716 A.2d at

585 n.5 (“[the Pennsylvania Supreme Court] has held that an issue will be

deemed to be waived when an appellant fails to properly explain or develop

it in his brief”); Rabatin, 24 A.3d at 396 (holding that the Superior Court

“may not act as counsel for an appellant and develop arguments on his

behalf”).

      We thus conclude that Appellant is not entitled to relief on its claim

that the trial court erred when it granted summary judgment based upon the

terms of the Release.     Therefore, we will not consider the remainder of

Appellant’s claims.

      Order affirmed.    SVHC’s Application to Strike Appellant’s Reply Brief

denied. Jurisdiction relinquished.




                                     - 30 -
J-A01022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2017




                          - 31 -
