J-S20032-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

MARCIA WANDELL 

Appellant

v.

ROBERT PACKER HOSPITAL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1532 MDA 2023

Appeal from the Order Entered October 16, 2023

In the Court of Common Pleas of Bradford County Civil Division at No(s): 

2018-CV-0090

BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 7, 2024

Appellant Marcia Wandell (“Appellant”) appeals from the order entered 

in the Court of Common Pleas of Bradford County, which granted summary 

judgment in favor of Appellee Robert Packer Hospital (“Robert Packer”), 

dismissed the claims in Appellant’s complaint with prejudice, and granted the

parties’ stipulation to dismiss Robert Packer’s counterclaim. After a careful 

review, we affirm.

The relevant facts and procedural history are as follows: On November 

2, 2018, Appellant filed a complaint, which she amended on January 31, 2019, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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and April 11, 2019.1 Therein, Appellant averred that, from April 22, 2016, to 

April 26, 2016, she was a patient at Robert Packer. On April 23, 2016, at 

approximately 10:30 a.m., she was using a bedside commode when it broke, 

and, as a result, Appellant fell to the ground, thus sustaining serious and 

permanent injuries. Appellant averred that Robert Packer employed Christine 

Mead, RN, who was the assigned nurse at the time of the incident, and she 

was obligated to conform to the standard of care required of medical 

agents/employees of Robert Packer. Appellant averred Nurse Mead deviated 

from this standard of care.2 Appellant alleged injuries including a herniated 

cervical disc, rotator cuff tear to her right shoulder, right hip pain, and 

aggravation of pre-existing cervical pain.

Appellant raised two counts in her second amended complaint. In the 

first count, she raised a claim of professional negligence in the form of 

corporate negligence against Robert Packer. In this vein, she alleged Robert 

____________________________________________

1 We note that, in her initial complaint, Appellant named the following 

defendants: The Robert Packer Hospital, Guthrie Robert Packer Hospital, 

Guthrie Healthcare System, Guthrie Medical Group, P.C., Guthrie Medical 

Group of Pennsylvania, P.C., The Guthrie Clinic, Guthrie Clinic, Inc., and 

Guthrie Clinic a Professional Corporation. Thereafter, the trial court approved 

a stipulation, and all defendants, except for Robert Packer Hospital, were

dismissed from the matter. Moreover, Appellant’s April 11, 2019, complaint 

names solely Robert Packer Hospital as a defendant.

2 Appellant also asserted that Nurse Mead was assisted by a certified nursing 

assistant (“CNA”), but Appellant was not sure of the name of the CNA. She 

averred the CNA was also obligated to conform to the standard of care 

required of medical agents/employees of Robert Packer, and the CNA deviated 

from this standard of care. 
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Packer was negligent in failing to furnish competent medical care, including 

proper supervision and assistance while Appellant used the bedside commode. 

She also alleged Robert Packer failed to provide adequate training to its staff 

regarding fall prevention, use reasonable care in maintaining safe and 

adequate facilities/equipment, provide an environment free of hazards for

patients, and exercise reasonable care to protect Appellant.

In her second count, Appellant raised a claim of vicarious liability 

averring Robert Packer was vicariously liable for the negligent acts and/or 

omissions of its employees, including Nurse Mead, who treated Appellant. 

Moreover, pursuant to Pennsylvania Rule of Civil Procedure 1042.3, Appellant 

attached a certificate of merit to her second amended complaint.

3

____________________________________________

3 Specifically, Appellant alleged as follows in the certificate of merit:

I, [Appellant’s counsel], hereby certifies that: an appropriate 

licensed professional has supplied a written statement to the 

undersigned that there is a basis to conclude that the care, skill 

or knowledge exercised or exhibited by [Robert Packer] 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; AND the claim 

that the defendant deviated from an acceptable professional 

standard is based solely on allegations that the other licensed 

professionals for whom the defendant is responsible deviated from 

an acceptable professional standard and an appropriate licensed 

professional has supplied a written statement to the undersigned 

that there is a basis to conclude that the care, skill or knowledge 

exercised by the other licensed professionals 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.

Certificate of Merit, dated 12/31/18.
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On May 3, 2019, Robert Packer filed an answer with new matter and a 

counterclaim for statutory insurance fraud, 18 Pa.C.S.A. § 4117. Therein, 

Robert Packer averred that, on April 22, 2016, Appellant was admitted to the 

hospital for kidney stones, as well as a possible renal cortical mass, and she 

had a ureteral stent placed during surgery on that date. At the time of her 

admission, Appellant had pre-existing disc problems due to a motor vehicle 

accident in 2000. She also had inner ear problems and post-traumatic 

headaches from a motor vehicle accident in 2013. 

Robert Packer alleged that, on April 22, 2016, prior to Appellant’s 

surgery, the nursing staff assessed Appellant and initially found her to be low 

risk on the fall protocol scale. She was walking independently and with no 

mobility limitations. However, after Appellant reported taking two or more 

medications that increased the risk of falling, the nursing staff changed her

assessment to a moderate risk fall protocol. After the surgery on April 22, 

2016, Appellant was assessed to be high risk on the fall protocol scale, and 

appropriate precautions in accordance with Robert Packer’s policies were put 

into place. 

Robert Packer averred that, contrary to Appellant’s assertion, an 

eyewitness reported that, while the bedside commode broke, Appellant did 

not fall to the floor. Rather, she remained in the frame of the seat. Robert 

Packer averred Appellant’s claims of falling from the bedside commode onto 

the ground, and sustaining injury therefrom, were fraudulent. 
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On August 7, 2019, Appellant filed preliminary objections to Robert 

Packer’s counterclaim, and Robert Packer filed an answer in opposition. On 

December 13, 2019, the trial court denied Appellant’s preliminary objections. 

On March 22, 2021, Appellant gave her deposition testimony. Therein, 

Appellant relevantly testified that she had surgery on April 22, 2016, at Robert 

Packer. See Appellant’s Deposition, 3/22/21, at 82. Appellant indicated that 

her hospital bed had a call button, and the hospital staff did not want her 

getting out of bed by herself. Id. at 83. Appellant testified that, when she 

needed to use the bathroom, she would press the call button. Id. at 85. In 

response, two nurses would generally come in the room, turn off the call 

button alarm, place her on the bedside commode, stay with her while she used

the bedside commode, put her back in bed when she was finished, and turn 

the call button alarm back on in case she needed it again. Id. She 

acknowledged she used the bedside commode in this manner without incident 

on April 22, 2016, and she had no difficulties sitting on the bedside commode. 

Id. at 86-88.

Appellant acknowledged that an entry in the nursing log for April 23, 

2016, at 9:49 a.m., indicated that fall precautions were being maintained, the 

bed call button alarm was in place, and the patient (Appellant) had been 

asking appropriately for assistance out of bed to pivot to use the bedside 

commode. Id. Appellant testified that, at approximately 10:30 a.m. on April 

23, 2016, she used the call button to get a nurse’s attention because she 
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needed to use the bedside commode. Id. at 91. She indicated one nurse 

came into the room, placed her on the bedside commode, and left the room. 

Id. at 91-92. After Appellant urinated, she continued to sit on the bedside 

commode waiting for the nurse to return to assist her back into bed. Id. at 

97. She did not attempt to use the call button to alert the nurse that she was 

finished. Id. at 97-99. While she waited, and before the nurse returned, the 

bedside commode broke, and she landed on the floor. Id. 

Appellant indicated she called out for help, and two nurses responded. 

Id. at 101. The nurses helped her off the floor, changed her gown, put her 

back into bed, and put the call button alarm on so she could use it again if 

needed. Id. Appellant testified that, shortly after the incident, a maintenance 

man came into the room to examine the bedside commode, and he said he 

was surprised the commode had broken. Id. at 102. 

Appellant testified she suffered various injuries from the fall. She 

testified that, after this incident, “they didn’t bring in another portable bedside 

commode. The nurses would come in and take me to the restroom and wait 

outside the door.” Id. at 143. 

On November 29, 2021, the trial court issued case management 

deadlines, which called for discovery to end on January 14, 2022, and for 

Appellant to produce expert reports by February 11, 2022. Appellant 

requested two extensions to produce her expert reports, which the trial court 

granted. 
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Thereafter, on March 7, 2022, Appellant served Robert Packer with a 

narrative report from Jason Gallagher, M.D., discussing the treatment of 

Appellant’s shoulder/rotator cuff injury.

4 On March 25, 2022, Appellant served 

Robert Packer with a narrative report from Timothy Damron, M.D., and James 

Buschbach, M.D., discussing the treatment of Appellant’s knee.

5 On April 18, 

____________________________________________

4 Dr. Gallagher’s entire report is as follows:

[Appellant] was first evaluated in my office on February 27, 

2017. She stated on that date that she fell from a commode and 

injured her right shoulder. Her right shoulder was evaluated, and 

an MRI was obtained. This demonstrated a full-thickness 

supraspinatus tear. She subsequently underwent arthroscopic 

rotator cuff repair of her right shoulder on 7-19-2017. Her 

postoperative course was uneventful, and she was examined on 

September 1, 2017.

She returned to the office on 6/14/2019 complaining of 

numbness tingling bilateral upper extremities and burning 

sensation in the right deltoid and biceps region. Repeat MRI of 

the right shoulder was then performed on July 5, 2019. This MRI 

demonstrated intact rotator cuff repair.

Based on the patient’s history and arthroscopic findings of a 

right-side rotator cuff tear, these findings are consistent with the 

stated history that the patient fell off a commode on April 23, 

2016. Patient did suffer moderate pain in the preoperative time. 

[Appellant] has a permanent disability of the right shoulder of

25%. She may require further treatment for the right shoulder if 

her symptoms recur. 

Report of Dr. Gallagher, 3/7/22. 

5 Notably, in the report, Drs. Damron and Buschbach specifically stated: 

With respect to questions from [Appellant’s] lawyer: (Of note, 

since [we are] only caring for [Appellant’s] right knee, the 

following [report] will be relative to her right knee. For any other 

body site injury, she will need to be evaluated in the 

determinations made by those physicians who would be 

evaluating and caring for her in that regard.)

Report of Drs. Damron and Buschbach, 3/25/22.
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2022, Appellant served Robert Packer with the curriculum vitae of Dr. 

Gallagher and Dr. Damron. Appellant provided no other expert reports.

On May 11, 2022, Robert Packer provided expert reports from Elizabeth 

E. Hill, RN, PhD, and Christopher Metzger, M.D. Nurse Hill’s report reviewed

the nursing care provided to Appellant while she was a patient at Robert 

Packer.

6 Dr. Metzger’s report discussed the fact that Appellant’s alleged 

injuries were not caused by a fall or trauma; but rather, the injuries were preexisting and degenerative conditions. 

On May 16, 2022, Robert Packer filed a motion for summary judgment, 

along with a brief in support thereof, requesting the trial court dismiss 

Appellant’s complaint with prejudice. Specifically, Robert Packer alleged 

Appellant failed to produce the requisite expert reports necessary to establish 

a prima facie case of either professional corporate negligence or vicarious 

liability for the alleged medical negligence of the nursing staff. 

Robert Packer indicated Appellant produced a narrative report from her 

treating orthopedic surgeon, Dr. Gallagher, who discussed Appellant’s right 

shoulder rotator cuff injury and treatment; however, Dr. Gallagher provided 

no analysis of the negligence claims. Moreover, Robert Packer noted Appellant 

____________________________________________

6 Relevantly, Nurse Hill opined in her report that there was ample 

documentation supporting the conclusion that Robert Packer met the

applicable standard of care regarding an individualized plan for Appellant, 

including maintaining fall precautions and assisting Appellant. She opined 

that, while the commode unexpectedly malfunctioned, the nursing staff acted 

prudently and for the safety of Appellant.
J-S20032-24

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did not allege a knee injury in her complaint, so the report of Drs. Damron

and Buschbach was not relevant to Appellant’s claims of professional 

negligence. 

Robert Packer asserted that Appellant’s claims involve issues of 

corporate hospital and nursing care beyond the knowledge of a layperson, 

and, thus, she was required to produce a medical expert to establish the 

elements of duty, breach, causation, and damages. That is, Robert Packer 

argued Appellant was required to file expert reports setting forth the accepted 

standards of care, opining that Robert Packer directly (and vicariously through 

the nursing staff) deviated from the accepted standards of care, and that such 

deviation was the proximate cause of Appellant’s injuries. Robert Packer 

averred that Appellant failed to produce such an expert and, as a matter of 

law, her complaint must be dismissed with prejudice. Robert Packer also 

averred that, absent Appellant’s necessary expert reports, there were no 

genuine issues of material fact as to any of the elements necessary to 

establish a prima facie case of professional negligence. 

On June 27, 2022, Appellant filed a brief in opposition to Robert Packer’s 

motion for summary judgment. Therein, Appellant acknowledged that she did 

not provide expert reports regarding the relevant standard of care and/or 

breach of the standard of care. However, she claimed that expert reports 

were unnecessary in this case since the matter is so simple, and the lack of 
J-S20032-24

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skill or want of care so obvious, as to be within the range of the ordinary 

experience and comprehension of laypersons. 

On July 1, 2022, the trial court held oral argument on Robert Packer’s 

motion for summary judgment. By order entered on November 23, 2022, the 

trial court granted Robert Packer’s motion for summary judgment. 

Specifically, the trial court held that Appellant’s claims of professional 

corporate negligence and vicarious liability required expert testimony to 

establish the applicable standard of care and the deviation therefrom. See 

Trial Court Opinion, filed 11/23/22, at 4. Thus, since Appellant failed to 

produce the necessary experts, she was unable to establish a prima facie claim 

of professional corporate negligence as to Robert Packer or vicarious liability 

for the alleged negligence of a registered nurse and a certified nursing 

assistant. See id. The trial court specifically rejected Appellant’s argument 

that her claims of negligence were so obvious or within the realm of a 

layperson’s understanding that an expert was unnecessary. Id.

Appellant filed a notice of appeal from the trial court’s November 23, 

2022, order; however, we quashed the appeal because the trial court had not 

disposed of Robert Packer’s counterclaim for statutory insurance fraud. That 

is, we determined the appeal was not from a final order. See Wandell v. 

Robert Packer Hospital, No. 1744 MDA 2022 (Pa.Super. filed 5/2/23) (per 

curiam order). Thereafter, on October 16, 2023, the trial court approved a 

stipulation dismissing Robert Packer’s counterclaim, and on November 6, 
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2023, Appellant filed a timely appeal from the final order. The trial court did 

not order Appellant to file a Pa.R.A.P. 1925(b) statement, and, consequently, 

no such statement was filed. On November 22, 2023, the trial court filed a 

brief Rule 1925(a) opinion. 

On appeal, Appellant sets forth the following issue in her “Statement of 

the Questions Involved” (verbatim):

1. Whether the court abused its discretion and committed an error 

of law by granting Defendant’s Motion for Summary Judgment 

and concluding expert testimony was necessary and that the 

negligence in this matter was not so obvious that a lay juror 

could recognize it?

Appellant’s Brief at 5.

On appeal, Appellant admits she did not provide expert reports setting 

forth a prima facie claim of professional corporate negligence or vicarious 

liability.

7

 See Appellant’s Brief at 10. However, Appellant avers that she was 

not required to do so. In this vein, she alleges that Robert Packer gave her a 

defective commode and insufficient assistance while she was using it. See id. 

This caused her to fall to the ground, and the injuries she suffered were the 

natural and probable result of the accident. See id. She claims that the 

corporate negligence of Robert Packer, as well as the medical negligence of 

____________________________________________

7 Accordingly, we need not examine the reports provided by Appellant to 

determine whether the expert reports create a genuine issue of material fact 

and/or were sufficient as a matter of law to prove a prima facie case of 

professional negligence. In any event, we note that no expert report proffered 

by Appellant discussed the acceptable standard of care and/or whether there 

was a deviation therefrom in this case. 
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the nursing staff for whom Robert Packer is vicariously liable,8is so obvious 

or within the realm of a layperson’s understanding that expert 

reports/testimony is not needed. She claims the trial court erred in holding 

otherwise, and, consequently, erred in concluding she did not produce 

evidence of facts essential to her cause of action.

We observe that, in reviewing matters of summary judgment, we are 

governed by the following well-established principles:

Our scope of review of an order granting summary judgment 

is plenary. We apply the same standard as the trial court, 

reviewing all the evidence of record to determine whether there 

exists a genuine issue of material fact. We view 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. Chenot v. A.P. Green Services, Inc.,

895 A.2d 55, 60-61 (Pa.Super. 2006) (citation omitted).

Motions for summary judgment implicate the plaintiff’s proof 

of the elements of [her] cause of action. Chenot, 895 A.2d at 61

(citation omitted). Summary judgment is proper “if, after the 

completion of discovery relevant to the motion, including the 

production of expert reports, an adverse 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.” Pa.R.C.P.

1035.2(2). In other words, “whenever there is no genuine issue 

of any material fact as to a necessary element of the cause of 

action or defense which could be established by additional 

discovery or expert report,” Pa.R.C.P. 1035.2(1), and the moving 

party is entitled to judgment as a matter of law, summary 

judgment is appropriate. Thus, a record that supports summary 

judgment either (1) shows the material facts are undisputed or 

____________________________________________

8 We note that, particularly as it applies to her claim of vicarious liability, 

Appellant admits her negligence claim is grounded in “medical malpractice” as 

opposed to “general negligence.” See Appellant’s Brief at 12.
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(2) contains insufficient evidence of facts to make out a prima 

facie cause of action or defense. Chenot, 895 A.2d at 61.

When reviewing a grant of summary judgment, we are not 

bound by the trial court’s conclusions of law, but we may reach 

our own conclusions. Id. We will disturb the trial court’s order 

only upon an error of law or an abuse of discretion. “Judicial 

discretion requires action in conformity with law on facts and 

circumstances before the trial court after hearing and 

consideration.” Chenot, 895 A.2d at 61 (citation omitted).

Consequently, the court abuses its discretion if, in resolving the 

issue for decision, it misapplies the law, exercises its discretion in 

a manner lacking reason, or does not follow legal procedure. Id. 

(citation omitted).

Where the discretion exercised by the trial court is 

challenged on appeal, the party bringing the challenge bears a 

heavy burden. It is not sufficient to persuade the appellate court 

that it might have reached a different conclusion if charged with 

the duty imposed on the court below; it is necessary to go further 

and show an abuse of the discretionary power. Chenot, 895 A.2d

at 61 (citation omitted). An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable or the result of partiality, prejudice, bias or ill-will, 

as shown by the evidence or the record, discretion is abused. Id.

at 61-62 (citation omitted).

Continental Cas. Co. v. Pro Machine, 916 A.2d 1111, 1115-16 (Pa.Super. 

2007).

Pa.R.C.P. 1035.2 governs motions for summary judgment and provides 

the following, in relevant part:

After the relevant pleadings are closed, but within such time as 

not to unreasonably delay trial, any party may move for summary 

judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to 

a necessary element of the cause of action or defense which could 

be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, 

including the production of expert reports, an adverse party who 
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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.

Pa.R.C.P. 1035.2.

The official note to Rule 1035.2 states, in pertinent part:

Note: Rule 1035.2 sets forth the general principle that a motion 

for summary judgment is based on an evidentiary record which 

entitles the moving party to judgment as a matter of law.

The evidentiary record may be one of two types. Under subdivision 

(1), the record shows that the material facts are undisputed and, 

therefore, there is no issue to be submitted to a jury.

***

Under subdivision (2), the record contains insufficient evidence of 

facts to make out a prima facie cause of action or defense and, 

therefore, there is no issue to be submitted to a jury. The motion 

in this instance is made by a party who does not have the burden 

of proof at trial and who does not have access to the evidence to 

make a record which affirmatively supports the motion. To defeat 

this motion, the adverse party must come forth with evidence 

showing the existence of the facts essential to the cause of action 

or defense.

* * *

Only the pleadings between the parties to the motion for summary 

judgment must be closed prior to filing the motion.

Pa.R.C.P. 1035.2, Note.

In the case sub judice, Appellant raises a claim of professional 

negligence in the form of corporate negligence against Robert Packer. In

Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), our 

Supreme Court first adopted the theory that a corporation, specifically a 

hospital, can be held directly liable for corporate negligence. Our Supreme 

Court explained the doctrine of corporate negligence as follows:
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Corporate negligence is a doctrine under which the hospital is 

liable if it fails to uphold the proper standard of care owed the 

patient, which is to ensure the patient’s safety and well-being 

while at the hospital. This theory of liability creates a 

nondelegable duty which the hospital owes directly to a patient.

Therefore, an injured party does not have to rely on and establish 

the negligence of a third party.

Thompson, supra, 591 A.2d at 707.

In defining the contours of this theory, our Supreme Court channeled a 

hospital’s duties into the following four general areas:

(1) a duty to use reasonable care in the maintenance of safe and 

adequate facilities and equipment; (2) a duty to select and retain 

only competent physicians; (3) a duty to oversee all persons who 

practice medicine within its walls as to patient care; and (4) a duty 

to formulate, adopt and enforce adequate rules and policies to 

ensure quality care for the patients.

Id. (citations omitted).

Because the duty to uphold the proper standard of care runs 

directly from the hospital to the patient, an injured party need not 

rely on the negligence of a third-party, such as a doctor or nurse, 

to establish a cause of action in corporate negligence. Instead, 

corporate negligence is based on the negligent acts of the 

institution. A cause of action for corporate negligence arises from 

the policies, actions or inaction of the institution itself rather than 

the specific acts of individual hospital employees. Thus, under 

this theory, a corporation is held directly liable, as opposed to 

vicariously liable, for its own negligent acts.

See Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581, 585 (1997) (internal 

citations and quotation marks omitted).

With the four duties and the nature of a corporate negligence claim in 

mind, we now examine the three elements necessary to establish a prima
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facie case of corporate negligence. The plaintiff must establish all of the 

following:

1. [the hospital] acted in deviation from the standard of care;

2. [the hospital] had actual or constructive notice of the defects 

or procedures which created the harm; and

3. [ ] the conduct was a substantial factor in bringing about the 

harm.

Whittington v. Episcopal Hospital, 768 A.2d 1144, 1149 (Pa.Super. 2001)

(citing Welsh, supra, 698 A.2d at 585).

We have elaborated on these concepts as follows:

The Thompson theory of corporate liability will not be 

triggered every time something goes wrong in a hospital which 

harms a patient. Acts of malpractice occur at the finest hospitals, 

and these hospitals are subject to liability under theories of 

respondeat superior or ostensible agency. To establish corporate 

negligence, a plaintiff must show more than an act of negligence 

by an individual for whom the hospital is responsible. Rather, 

Thompson requires a plaintiff to show that the hospital itself is 

breaching a duty and is somehow substandard. This requires 

evidence that the hospital knew or should have known about the 

breach of duty that is harming its patients.

Thus, a hospital is not directly liable under Thompson just 

because one of its employees or agents makes a mistake which 

constitutes malpractice. Just as regular negligence is measured 

by a reasonable person standard, a hospital’s corporate 

negligence will be measured against what a reasonable hospital 

under similar circumstances should have done. Thompson

contemplates a kind of systemic negligence, such as where a 

hospital knows that one of its staff physicians is incompetent but 

allows that physician to practice medicine anyway; or where a 

hospital should realize that its patients are routinely getting 

infected because the nursing staff is leaving catheters in the same 

spot for too long, yet the hospital fails to formulate, adopt or 

enforce any rule about moving catheters. Thompson does not 

propound a theory of strict liability....Though broadly defined, 

Thompson liability is still fault based.
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Edwards v. Brandywine Hospital, 652 A.2d 1382, 1386-87 (Pa.Super.

1995) (citations omitted). See Corey v. Wilkes-Barre Hospital Company,

LLC, 307 A.3d 701, 710 (Pa.Super. 2023) (en banc) (quotation omitted).

Pennsylvania courts, in recognition of the foregoing, have limited 

recovery for corporate negligence to instances in which a plaintiff 

demonstrates “systemic negligence” on the part of a hospital. Id. See Welsh,

supra, 698 A.2d at 585 (“A cause of action for corporate negligence arises 

from the policies, actions or inaction of the institution itself rather than the 

specific acts of individual hospital employees.”).

Moreover, regarding a claim of corporate negligence, our Supreme Court

has stated that, “unless the hospital’s negligence is obvious, an expert witness 

is required to establish two of the three prongs: that the hospital deviated 

from the standard of care and that such deviation was a substantial factor in 

bringing about the harm.” Whittington, 768 A.2d at 1149 (citing Welsh,

supra, 698 A.2d at 585).

Furthermore, in addition to proceeding on a direct theory of corporate 

negligence against Robert Packer in the case sub judice, Appellant also raised 

a claim of vicarious liability based on the alleged medical negligence of its 

nursing staff.9 Generally, to demonstrate the negligence of a nurse, a plaintiff 

____________________________________________

9 Regarding vicarious liability, our Supreme Court has explained:

(Footnote Continued Next Page)
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must establish: “(1) a duty owed by the health care provider to the patient; 

(2) a breach of that duty; (3) the breach was the proximate cause of, or a 

substantial factor, in bringing about the harm suffered by the patient; and (4) 

damages suffered by the patient that were a direct result of that harm.” 

Nogowski v. Alemo-Hammad, 691 A.2d 950, 956 (Pa.Super. 1997) (en 

banc). See Nigon v. Jewell, 313 A.3d 1124 (Pa.Super. 2024) (indicating 

medical malpractice is the unwarranted departure from generally accepted 

standards of medical practice resulting in injury to a patient, including all 

liability-producing conduct arising from the rendition of professional medical 

services).

____________________________________________

Vicarious liability is a policy-based allocation of risk. 

Vicarious liability, sometimes referred to as imputed negligence, 

means in its simplest form that, by reason of some relation 

existing between A and B, the negligence of A is to be charged 

against B although B has played no part in it, has done nothing 

whatever to aid or encourage it, or indeed has done all that he 

possibly can to prevent it. Once the requisite relationship (i.e.,

employment, agency) is demonstrated, the innocent victim has 

recourse against the principal, even if the ultimately responsible 

agent is unavailable or lacks the ability to pay.

Where a corporation is concerned, the ready distinction 

between direct and vicarious liability is somewhat obscured 

because we accept the general premise that the corporation acts 

through its officers, employees, and other agents. The

corporation, as principal, assumes the risk of individual agents’

negligence under the theory of vicarious liability. In this scenario, 

the corporation’s liability is derivative of the agents’ breach of 

their duties of care to the plaintiff.

Scampone v. Highland Park Care Center, LLC, 618 Pa. 363, 57 A.3d 582, 

597 (2012) (quotation marks, quotations, and citations omitted).
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Moreover, except where it is obvious or within the realm of a layperson’s 

understanding, the plaintiff must present expert testimony establishing the 

generally accepted standard of care, and the health care provider’s conduct 

deviation from the accepted standard of care. Shannon v. McNulty, 718 

A.2d 828, 831 (Pa.Super. 1998) (citation omitted). That is, expert testimony 

is necessary for medical malpractice claims unless the “narrow exception” 

applies: “no such testimony is required in instances of obvious negligence, 

i.e., circumstances in which the medical and factual issues presented are such 

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

Fessenden v. Robert Packer Hospital, 97 A.3d 1225, 1230 (Pa.Super. 

2014) (citation omitted). “In those cases, the doctrine of res ipsa loquitur 

allows a fact-finder to infer from the circumstances surrounding the injury that 

the harm suffered was caused by the negligence of the defendant.” Id. 

(citation omitted).

In the case sub judice, in holding Appellant’s claim of corporate 

negligence against Robert Packer, as well as her claim of vicarious liability for 

the alleged medical negligence of the nursing staff, was not so obvious or 

within the realm of a layperson’s understanding that an expert was 

unnecessary, the trial court indicated the following:

[Appellant] claims that [Robert Packer] failed to provide 

adequate and appropriate supervision and appropriate assistance

devices to prevent falls and accidents; failed to provide an 

environment that was free of accident hazards; failed to use 

reasonable care in the maintenance of said facilities and 

equipment; [and] failed to provide adequate training to staff 
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regarding fall prevention. Expert testimony is necessary to 

establish the applicable standard of care and the deviation from 

that standard and causation. Here, [Appellant] has produced no 

such expert. This is not a case where the negligence is so obvious. 

What was the standard of care for a patient such as [Appellant] 

after surgery [when using the bedside commode] and what was 

the deviation from that standard? 

In the absence of expert report/testimony, [Appellant] is not 

able to establish a prima facie claim of...corporate negligence as 

to...Robert Packer [or a claim of vicarious liability for the alleged 

negligence of its nurses].

Trial Court Opinion, filed 11/23/22, at 4. 

We find no abuse of discretion or error of law. Appellant suggests that 

Robert Packer’s corporate negligence, as well as vicarious liability for the 

nursing staff’s alleged negligence, may be presumed solely because the nurse 

left the room while she was using the bedside commode, which then broke. 

However, as indicated supra, as it relates to the claim of corporate negligence, 

Robert Packer’s omissions/actions must be “measured against what a 

reasonable hospital under similar circumstances should have done.” 

Edwards, 652 A.2d at 1386-87. 

For example, what are the reasonable hospital standards regarding the 

inspection or maintenance of bedside commodes, the policies for nursing staff 

regarding assisting a patient such as Appellant while she uses the bedside 

commode, and the policies regarding the use of bedside commodes vs. regular 

toilets for a patient such as Appellant? Similar to the trial court, we conclude 

these issues relate to the accepted standard of care (i.e., what a reasonable 

hospital under similar circumstances should have done), as well as whether 
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Robert Packer deviated from the standard of care. Moreover, similar to the 

trial court, we conclude these inquiries are not so obvious or within the 

knowledge of laypeople so as to obviate the need for expert testimony. See 

Ditch v. Waynesboro Hospital, 917 A.2d 317 (Pa.Super. 2007) (where the 

estate averred hospital personnel failed to properly restrain patient suffering 

from stroke who fell from hospital bed while being transported from 

emergency room to hospital room, and the hospital failed to properly train 

staff and have proper policies in place, expert testimony was needed to 

educate the jury on the proper standard of care for restraining patients). See 

also Rodriguez v. St. Luke’s Hospital-Bethlehem, No. 3198 EDA 2022, 

2024 WL 195755 (Pa.Super. filed 1/18/24) (unpublished memorandum)10

(holding negligence cannot be presumed solely because the plaintiff avers that 

he fractured his ankle during physical therapy, and expert witness testimony 

would be needed to establish the appropriate standard of care and breach of 

that standard concerning the proper method to transfer a patient from a bed 

and the support needed to secure him in a standing position).

Additionally, as it relates to Appellant’s claim of vicarious liability for the 

alleged negligence of the nursing staff, we agree with the trial court that the 

medical issues regarding the standard of care and whether the nursing staff 

____________________________________________

10 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the 

Superior Court filed after May 1, 2019, may be cited for their persuasive 

value). We find Rodriguez persuasive in the case sub judice.
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deviated from the standard of care required expert reports. For instance, 

expert testimony from a qualified witness would be necessary to explain to a 

jury the impact of Appellant’s medical condition on her ability to use the 

bedside commode without assistance, use the call button to signal the nurse 

when she was finished using the bedside commode, and react appropriately 

when the bedside commode broke.

Further, expert testimony would have been necessary to determine 

whether a patient in Appellant’s condition should have been taken to the 

restroom instead of using the bedside commode. Simply put, specialized 

knowledge was needed to assess the risk of potential fall posed by the use of 

the bedside commode without supervision given Appellant’s medical history 

and current health. 

Thus, we conclude that, based on the cause of action of vicarious liability 

as pled in Appellant’s complaint, as well as the discovery provided with regard 

to the cause of action, “the matter under investigation” is not so simple, and 

the want of care is not so obvious as “to be within the range of the ordinary 

experience and comprehension of even nonprofessional persons.” Chandler 

v. Cook, 438 Pa. 447, 265 A.2d 794, 796 n.1 (1970) (citation omitted). That 

is, to establish a prima facie case of medical negligence as to the nursing staff, 

for which Appellant sought to hold Robert Packer vicariously liable, Appellant 

was required to produce an expert report to establish the accepted medical 

standard of care and the nurses’ variance therefrom. See Chandler, supra
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(holding expert witness required for the plaintiff to establish medical 

negligence where the physician, who was seventy-one years old, performed a 

surgery with limited use of his left hand); Grossman v. Barke, 868 A.2d 561 

(Pa.Super. 2005) (holding that, where a physician told a diabetic patient to sit 

on an examination table, the physician left the room, and the patient fell off 

the examination table, expert testimony was needed to explain to the jury the 

impact of the patient’s medical condition on her ability to stay safely seated 

on an examination table, as well as testify to a reasonable degree of medical 

certainty that the physician’s actions or omissions deviated from the applicable 

standard of care).

For all of the foregoing reasons, we conclude the trial court properly held 

that Appellant was required to produce expert reports to establish the 

standard of care and the relevant deviation therefrom in support of her claims 

of direct corporate negligence against Robert Packer and vicarious liability for 

the alleged negligence of the nursing staff. Accordingly, on the record before 

us, Appellant has failed to produce evidence of facts essential to her 

negligence claims to submit to a jury such that summary judgment is 

appropriate. Therefore, no genuine issues of material fact exist, and Robert 

Packer was entitled to judgment as a matter of law. See Pa.R.C.P. 1035.2. 

Consequently, we affirm.

Order affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 8/07/2024