J-S36016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ORLANDO BAEZ

Appellant

v.

CORRECT CARE SOLUTIONS, INC.,

DENISE CORAL SMYTH, LORI ANN

RIDINGS, NATALIE D. AUSTIN, AND

WILLIAM J. NICHOLSON

Appellees

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1854 WDA 2019

Appeal from the Order Entered October 23, 2019

In the Court of Common Pleas of Greene County

Civil Division at No(s): 365 AD 2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.* MEMORANDUM BY KING, J.: FILED DECEMBER 11, 2020

Appellant, Orlando Baez, appeals pro se from the order entered in the

Greene County Court of Common Pleas, sustaining the preliminary objections

of Appellees, Correct Care Solutions, Inc., Denise Coral Smyth, Lori Ann

Ridings, Natalie D. Austin, and William J. Nicholson, and dismissing Appellant’s

amended complaint in this medical malpractice action.1 We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 Generally, the Commonwealth Court shall have exclusive jurisdiction of

appeals from final orders of the courts of common pleas in civil cases involving

our state government or its officers. See 42 Pa.C.S.A. § 762(a)(1). See also

Flaxman v. Burnett, 574 A.2d 1061 (Pa.Super. 1990) (explaining

Commonwealth Court has exclusive appellate jurisdiction of appeals involving
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The relevant facts and procedural history of this appeal are as follows.

Appellant was an inmate at SCI-Greene, and he is currently housed at SCI- Phoenix. On June 29, 2018, Appellant filed a pro se complaint against

Appellees, who were health care providers at SCI-Greene. Appellant alleged

that he filled out sick-call requests (“DC-500 forms”) on multiple occasions in

March, April, and May 2017, seeking medical treatment from Appellees.

Appellant claimed his requests were “related to [Appellant’s] [l]upus, its

multiple complications, and side effects.” (Complaint, filed 6/29/18, at ¶33).

Appellant insisted that Appellees did not respond to his requests, their conduct

breached a duty of care, and Appellant suffered injuries as a result. Pursuant to Pa.R.C.P. 1042.3(a), Appellant attached five, separate

certificates of merit to his complaint. Each certificate stated, “Expert

testimony of an appropriate licensed professional is unnecessary for

prosecution of the claim against” Appellees. (Certificates of Merit, filed

6/29/18). Specifically, Appellant asserted “a layperson can easily understand

the facts and causation of the injury,” and an expert “would not provide

requisite information and/or clarity to the elements and/or claims raised.”

____________________________________________

tort claims against either Commonwealth or local agency). Here, the parties

on appeal include employees and agents of the Department of Corrections.

Nevertheless, we exercise jurisdiction over this case, where Appellees have

not objected to this Court’s jurisdiction. See Flaxman, supra (declining to

transfer cause of action involving transit authority to Commonwealth Court

where parties did not raise objection to Superior Court’s assumption of

jurisdiction as required by Pa.R.A.P. 741(a)).
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(Id.)

Appellees Correct Care Solutions, Inc., Smyth, Ridings, and Austin filed

preliminary objections, including a claim that Appellant failed to provide

proper certificates of merit. On January 25, 2019, the trial court sustained

Appellees’ preliminary objection pursuant to Rule 1042.3(a), finding “the

causes of action, as alleged by [Appellant], are not ones that are within the

purview of a layman.” (Order and Opinion, filed 1/25/19, at 5). Thus, the

court dismissed the complaint without prejudice to Appellant’s ability to file an

amended complaint with appropriate certificates of merit.2

Appellant filed a pro se amended complaint on March 27, 2019. In the

amended complaint, Appellant reiterated that Appellees “fail[ed] to respond

to [Appellant’s] ... DC-500” forms, which amounted to a breach of their duty

of care. (Amended Complaint, filed 3/27/19, at ¶38). Additionally, Appellant

alleged that Appellees “stymied [Appellant’s] ability to seek out medical

attention and/or in doing so, sought to limit an issue to one medical concern

per each DC-500 form, notwithstanding a lack of authority to do so.” (Id. at

¶58). Appellant also claimed “on numerous occasions,” Appellees “would

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2 Appellee Nicholson filed separate preliminary objections, arguing that

Appellant’s complaint did “not state in a concise and summary form the

material facts upon which the cause of action is based,” and did not “inform

[Appellee] of the issues that he must meet in answering said allegations.”

(Preliminary Objections, filed 9/4/18, at ¶3). The court sustained Appellee

Nicholson’s preliminary objections, allowing Appellant “until April 1, 2019 to

file an amended complaint against [Appellee] Nicholson.” (Order and Opinion,

filed 1/25/19, at 7).
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reject and return the issued DC-500 ... by placing it in [Appellant’s] door, and

walking away, and did so under the guise it was improperly filled out.” (Id.

at ¶59).

Regarding damages, Appellant argued that Appellees’ negligence

resulted in the “exacerbation of pain and suffering” for various issues related

to his lupus, including breathing difficulties and joint pain. (Id. at ¶¶71, 74,

77, 80, and 83). Again, Appellant included certificates of merit, claiming that

expert testimony was unnecessary for the prosecution of his claims.

All Appellees, including Appellee Nicholson, filed preliminary objections

arguing that Appellant continued to provide improper certificates of merit. The

court conducted oral argument on October 1, 2019. On October 23, 2019,

the court sustained Appellees’ preliminary objections and dismissed

Appellant’s cause of action.3

Appellant timely filed a pro se notice of appeal on November 15, 2019.4

On December 2, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

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3 The court’s order expressly stated it was “a final and appealable order.”

(Order and Opinion, filed 10/23/19, at 6).

4 The notice of appeal included a certificate of service, indicating that Appellant

submitted his legal paperwork to prison authorities for mailing on November

15, 2019. Accordingly, we consider the notice of appeal to be timely filed.

See Thomas v. Elash, 781 A.2d 170 (Pa.Super. 2001) (explaining that under

“prisoner mailbox rule,” pro se prisoner’s appeal is deemed filed on date he

delivers it to prison authorities and/or places notice of appeal in institutional

mailbox; prisoner mailbox rule applies to all pro se legal filings by incarcerated

individuals, including civil litigants).
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concise statement of errors complained of on appeal. Appellant timely filed

his Rule 1925(b) statement on December 16, 2019.

Appellant raises four issues for our review:

Whether the court abused its discretion or committed an

error of law when it misapplied the requisites in the filing of

a certificate of merit pursuant to [Pa.R.C.P.] 1042.3(a)(3)[.]

Whether the court abused its discretion or committed an

error of law when it concluded that Appellant was required

to file a certificate of merit pursuant to [Pa.R.C.P.]

1042.3(a)(1 or 2), when no medical treatment was ever

provided during the times in question so as to require an

expert to opine on whether [the] course of treatment (or

lack thereof) deviated from an expected standard of

practice[.]

Whether the court abused its discretion or committed an

error of law when it concluded Appellant was required to file

a certificate of merit pursuant to [Pa.R.C.P.] 1042.3(a)(1 or

2), in a simple negligence lawsuit pursuant to 42 Pa.C.S.A.

§ 8522(b)(2), against agents of the Department of

Corrections where Appellant alleged a breach of duty in their

failing to respond to requests for medical treatment when a

duty so existed, despite what type of complaints Appellant

was seeking medical treatment for[.]

Whether the court abused its discretion or committed an

error of law when it concluded Appellant’s certificate of merit

pursuant to [Pa.R.C.P.] 1042.3(a)(1 or 2), in a simple

negligence lawsuit pursuant to 42 Pa.C.S.A. § 8522(b)(2),

against agents of the Department of Corrections was

inadequate despite a layman’s ability to understand the

causation between the breach of duty and the injury; that

being, Appellees’ failure to respond resulted in pain and

suffering.

(Appellant’s Brief at 5).

The relevant scope and standard of review in examining a challenge to

an order sustaining preliminary objections are as follows:
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Our review of a trial court’s sustaining of preliminary

objections in the nature of a demurrer is plenary. Such

preliminary objections should be sustained only if, assuming

the averments of the complaint to be true, the plaintiff has

failed to assert a legally cognizable cause of action. We will

reverse a trial court’s decision to sustain preliminary

objections only if the trial court has committed an error of

law or an abuse of discretion.

All material facts set forth in the complaint as well as all

inferences reasonably [deducible] therefrom are admitted

as true for [the purpose of this review]. The question

presented by the demurrer is whether, on the facts averred,

the law says with certainty that no recovery is possible.

Where a doubt exists as to whether a demurrer should be

sustained, this doubt should be resolved in favor of

overruling it.

Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa.Super. 2008) (emphasis in

original) (internal citations omitted). “To the extent that the question

presented involves interpretation of rules of civil procedure, our standard of

review is de novo.” Gray v. PennyMac Corp., 202 A.3d 712, 715 (Pa.Super.

2019).

Appellant’s arguments are related, and we address them together.

Appellant insists that expert testimony is not required “if the issues presented

to a jury are such that a layperson can understand the nexus between the

breach of duty and the injury.” (Appellant’s Brief at 12). As such, Appellant

argues the allegations in his amended complaint do not require expert

testimony. Appellant emphasizes his claims are limited to Appellees’ “failure

and/or refusal to even respond to a request for medical treatment as obligated
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... by well-established federal law.”5 (Id. at 14). Appellant reiterates he is

not challenging Appellees’ medical judgments, and an expert’s testimony

should not be required to demonstrate that Appellees breached a duty by

failing to respond to Appellant’s DC-500 forms. Appellant concludes the trial

court erred in sustaining Appellees’ preliminary objections, and this Court

must reverse the order at issue and remand the case for further proceedings.

We disagree.

A “medical professional liability action” is defined in the Medical Care

Availability and Reduction of Error (“MCARE”) Act as “[a]ny proceeding in

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5 Appellant relies on Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976), for the proposition that “federal law” created Appellees’ duty of

care in the instant case. We observe that Estelle specifically held that the

government has an obligation to provide medical care for incarcerated

individuals, and the failure to treat a prisoner’s medical needs amounts to the

infliction of unnecessary suffering that violates the Eight Amendment of the

United States Constitution. Id. at 104-05, 97 S.Ct. at 290-91, 50 L.Ed.2d at

___. Nevertheless, Estelle also noted:

[I]n the medical context, an inadvertent failure to provide

adequate medical care cannot be said to constitute an

unnecessary and wanton infliction of pain or to be repugnant

to the conscience of mankind. Thus, a complaint that a

physician has been negligent in diagnosing or treating a

medical condition does not state a valid claim of medical

mistreatment under the Eighth Amendment. Medical

malpractice does not become a constitutional violation

merely because the victim is a prisoner. In order to state a

cognizable claim, a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.

Id. at 106-07, 97 S.Ct. at 292, 50 L.Ed.2d at ___ (internal quotation marks

omitted).
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which a medical professional liability claim is asserted, including an action in

a court of law or an arbitration proceeding.” 40 P.S. § 1303.103. Moreover,

a “medical professional liability claim” is “[a]ny claim seeking the recovery of

damages or loss from a health care provider arising out of any tort or breach

of contract causing injury or death resulting from the furnishing of health care

services which were or should have been provided.” Id. (emphasis added).

Rule 1042.3 requires complaints sounding in medical professional

liability to include certificates of merit:

Rule 1042.3. Certificate of Merit

(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.

* * *
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(e) If a certificate of merit is not signed by an attorney,

the party signing the certificate of merit shall, in addition to

the other requirements of this rule, attach to the certificate

of merit the written statement from an appropriate licensed

professional as required by subdivisions (a)(1) and (2). If

the written statement is not attached to the certificate of

merit, a defendant seeking to enter a judgment of non pros

shall file a written notice of intent to enter a judgment of

non pros for failure to file a written statement under Rule

1042.11.

Pa.R.C.P. 1042.3(a), (e) (internal notes omitted). Further, “claims of medical malpractice necessarily raise questions

involving medical judgment.” Grossman v. Barke, 868 A.2d 561, 570

(Pa.Super. 2005), appeal denied, 585 Pa. 697, 889 A.2d 89 (2005). One of the most distinguishing features of a medical

malpractice suit is, in most cases, the need for expert

testimony, which may be necessary to elucidate complex

medical issues to a jury of laypersons. In other words,

[b]ecause the negligence of a physician encompasses

matters not within the ordinary knowledge and experience

of laypersons[,] a medical malpractice plaintiff must

present expert testimony to establish the applicable

standard of care, the deviation from that standard,

causation and the extent of the injury.

The expert testimony requirement in a medical malpractice

action means that a plaintiff must present medical expert

testimony to establish that the care and treatment of the

plaintiff by the defendant fell short of the required standard

of care and that the breach proximately caused the

plaintiff’s injury. Hence, causation is also a matter generally

requiring expert testimony.

Id. at 566-67 (internal citations and quotation marks omitted) (emphasis

added). “The only time expert testimony will not be required for a medical
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malpractice claim is where the causal connection between the defendants’

allegedly negligent act and the harm suffered by the plaintiff is generally a

matter of common knowledge, rendering the jury capable ... of comprehending

the facts presented and drawing conclusions based on those facts.” McCool

V. Department of Corrections, 984 A.2d 565, 571 (Pa.Cmwlth. 2009),

appeal denied, 605 Pa. 677, 989 A.2d 10 (2010) (internal citation and

quotation marks omitted).6 “Generally, such negligence rises to the level of

gross incompetence.” Id.

Instantly, the trial court acknowledged Appellant’s argument that expert

testimony should not be necessary to establish the relevant standard of care

in a case where prison health care providers ignored an inmate’s requests for

treatment. (See Order and Opinion, filed 10/23/19, at 3). Nevertheless, the

court determined other aspects of Appellant’s claims involved matters not

within the ordinary knowledge and experience of laypersons:

In this instance, [Appellant] sought treatment for issues

directly related to his [l]upus, its multiple complications and

side effects, those of which included but were not limited to

the lupus condition, two fractured ribs, serious chronic

breathing, rheumatoid arthritis, joint complications, chronic

pain, and exacerbation of that pain. See [Appellant’s]

Complaint, paragraphs 22, 71, 74, 77, 80 and 83. Clearly,

[Appellant’s] conditions and exacerbation of same are well

beyond the province of laypersons to decide. ____________________________________________

6 “This Court is not bound by decisions of the Commonwealth Court. However,

such decisions provide persuasive authority, and we may turn to our

colleagues on the Commonwealth Court for guidance when appropriate.”

Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010), appeal

denied, 608 Pa. 648, 12 A.3d 371 (2010).
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(Id. at 5). Based upon the averments in the amended complaint, we agree

that Appellant’s claims necessarily implicate matters not within the ordinary

knowledge and experience of laypersons. See Grossman, supra. Specifically, the amended complaint admits that Appellant was aware of

the complications and side effects of his lupus diagnosis, including breathing

problems and joint pain. (See Amended Complaint at ¶33). Appellant

maintains there was an “exacerbation of pain of suffering” for these chronic

ailments due to Appellees’ inaction. (Id. at ¶¶71, 74, 77, 80, and 83). Absent

any expert testimony, however, the jury would be left to speculate about the

link between Appellees’ conduct, causation, and the exact nature of any

“exacerbation.” See Grossman, supra; Pa.R.C.P. 1042.3(a)(1). Further, on

this record, we cannot conclude that the causal connection between Appellees’

allegedly negligent act and the harm suffered by Appellant is generally a

matter of common knowledge. See McCool, supra. Compare Smith v.

Yohe, 412 Pa. 94, 194 A.2d 167 (1963) (holding expert testimony was not

necessary to establish prima facie case of negligence where physician failed

to take x-rays to rule out possibility of fractures after elderly patient had

fallen; average juror would have sufficient knowledge of diagnostic value of

x-rays to determine whether physician’s omission evidenced lack of judgment

and care).

Moreover, Appellant alone cannot simply aver that his claims are

understandable to a layperson. Appellant’s certificates of merit were not
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signed by an attorney. As such, the certificates of merit needed to include

written statements from an appropriate licensed professional; the Rule does

not allow a pro se party to certify that expert testimony is unnecessary. See

Pa.R.C.P. 1042.3(e).

Additionally, we disagree with Appellant’s attempt to simplify the claims

in the amended complaint by characterizing them as straightforward

arguments about Appellees’ failure to respond to DC-500 forms. Although the

amended complaint included an allegation that Appellees failed to respond, it

also contained a distinct assertion regarding Appellees’ attempts to limit

medical consultations to one issue per DC-500 form. (See Amended

Complaint at ¶58). Likewise, Appellant also cited instances where Appellees

rejected his DC-500 forms as incorrectly filled out. (Id. at ¶¶ 59). Contrary

to Appellant’s argument, the amended complaint reveals Appellees provided

some response to his DC-500 forms, albeit a response that left Appellant

unsatisfied.

Based upon the foregoing, the court properly determined that Appellant

failed to supply adequate certificates of merit, pursuant to Pa.R.C.P.

1042.3(a). Thus, the court did not commit an abuse of discretion in sustaining

Appellees’ preliminary objections. See Lerner, supra. Accordingly, we

affirm.

Order affirmed.

Judge Olson concurs in the result.
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Judge Pellegrini concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/11/2020