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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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