IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mickey Santos Colon, :

Appellant :

:

v. :

: Correct Care Solutions, LLC, : Dr. Roble, Theresa Delbalso, : Christopher Oppman, John Wetzel : No. 834 C.D. 2018 and Susan Wislosky [ 1 ] : Submitted: November 2, 2018

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 8, 2019

Mickey Santos Colon (Colon) appeals from the February 28, 201 8

order of the Court of Common Pleas of Schuylkill County (trial court)

, which

1 The Pennsylvania Superior Court transferred the instant appeal to this Court because the Super ior Court deemed this action to be a “ civil action against the Commonwealth government and Commonwealth officers acting in an official capacity.” Superior Court Order dated June 19,
2018. In addition to naming Dr. Roble and Correct Care Solutions, LLC (C CS) as defendants, Colon initiated this action against: Theresa Delbalso (Delbalso), Department of Corrections (Department) Superintend e nt; Christopher Oppman (Oppman), Department Deputy Secretary;
John Wetzel (Wetzel), Department Secretary; and Susan Wis losky (Wislosky), retired Department registered nurse. See Complaint, Original Record (O.R. ) Item No. 11

. (Delbalso, Oppman, Wetzel and Wislosky are collectively referred to as Department Defendants). This appeal involves the trial court’s dismissal

, on preliminary objections

, of Colon’s Second Amended Complaint

, which
did not include the Department D efendants. The Department Defendants had been named in Colon’s initial Complaint as well as his A mended C omplaint. By order dated November 17, 2017,
th e trial court granted the Department Defendants’ preliminary objections to Colon’s Amended
C omplaint and dismissed the Amended Complaint. Colon subsequently filed the Second Amended Complaint against only Dr. Roble and CCS.2

granted the preliminary objections of Correct Care Solutions, LLC (CCS) and David

Roble , M.D. (Dr. Roble ) and dis missed with prejudice Colon’s Second Amended

Complaint. 2 Upon review, we affirm.

The Second Amended Complaint sets forth the following allegations.

At all relevant times, Colon was an inmate housed at State Correctional Institution

Mahanoy (SCI

- Mahanoy ). Second Amended Complaint ¶ 1. CCS is the health care

provider for all Department of Corrections (Department) facilities. Id. ¶ 3. Dr.

Roble is a licensed physician acting as an agent of CCS by providing medical

services to inmates at SCI

- Mahanoy. I d. ¶ 2. On or about April 26, 2016, Dr. Roble

prescribed a medication for Colon that caused his blood pressure to spike, requiring

outside hospitalization on April 30, 2 016. Id. ¶ 4. Colon was informed

, in the

presence of two transporting officers

, that he was given the wrong medication. Id.

Colon alleges that he filed grievances and appeals to the final level through the

inmate grievance system. See id. ¶¶ 5

- 11. Count I of the Second Amended

Complaint asserts a claim for medical negligence agai nst Dr. Roble

. Id. at 3. Count

II of the Second Amended Complaint asserts both vicarious liability and corporate

negligence claims against CCS. Id. at 4.

Dr. Rob le and CCS filed preliminary objections, challenging the legal

and factual sufficiency of b oth Counts. The trial court granted the preliminary

objections, and Colon appealed. 3

2 Appellees Correct Care Soluti ons, LLC and Dr. Roble were precluded from filing a brief in this matter for failure to comply with this Court’s order of September 11, 2018, directing them
to file a conforming brief on or before September 25, 2018

. Cmwlth. Ct. Order 10/26/18.

3 On appeal from a trial court’s dismissal of a complaint based on preliminary objections,
we have stated:

this Court’s review is limited to determining whether the trial court committed an error of law or an abuse of discretion. W hen3 On appeal, with respect to Count I, Colon argues that his Second

Amended C omplaint adequately asserts a claim for medical negligence against Dr.

Roble and that the tr ial court erred in ruling that this claim require s expert testimony

.
See Colon’s Brief at 6. Colon argues that he did not claim in his Second Amended

Complaint that Dr. Roble deviated from a professional standard of care, and

therefore, expert testimony is not necessary to establish that Colon was prescribed

the wrong medication. Colon ’s B rief at 8

- 12. Colon further asserts that Count II of

his Second Amended Complaint sufficiently alleges corporate negligence against

CCS in its supervision of Dr. Roble and that this corporate ne gligence claim does

not require expert testimony. Id

. We disagree.

In Count I, Colon asserts medical negligence against Dr. Roble

, consisting of:

(a) [f] ail ure to possess or exercise the care, skill,

judgment and training require d for undertaking the
medical care and treatment of [Colon]

, together with the counseling a n d advice relative to the medication prescribed; (b) failure of Defendant, [Dr.] Roble to ensure an adequate history from [Colon] for the advice, counsel and
medication provided by the Defendant to [Colon] ;

considering preliminary objections , we must accept as true all well

pleaded material facts alleged in the complaint and all reasonable
inferences deducible therefrom. A preliminary objection should be sustained only in cases when, based on the facts pleaded, it is cl ear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Because a preliminary objection in the nature of a demurrer presents a question of law, this Court ’ s standard
of review of a court of common pleas ’ dec ision to sustain a demurrer is de novo and the scope of review is plenary.

Brown v. Wetzel , 179 A.3d 1161, 1164 n. 2 ( Pa. Cmwlth. 2018) ( internal quotation marks omitted) (quoting Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) ).4 (c) failure to provide [Colon] with sufficient understanding of the risks involved in the medication[] prescribed; (d) failure adequately to disclose, warn or advise [Colon] of the risks involved with [t]he use of the medication prescribed; (e) being otherwise negligent and careless under the
circumstances.

Complaint, ¶ 15(a)

- (e)

.

Pennsylvania Rule of Civil Procedure No. 1042.3(a) requires that

Colon , with the complaint, or within 60 days of its filing, file a certificate o f merit

that an:

(1) 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 outsid e 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 license d professionals for wh om 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. No. 1042.3 (a) (1)

- (3). Generally, where a plainti ff certifies pursuant to

Pa.R.C.P. No. 1042.3(a)(3) that expert testimony is unnecessary for prosecution of

the claim, he is bound by such assertion and will thereafter be precluded from

presenting expert testimony on the questions of standard of care and causation. 4

Pa.R.C.P. No. 10 42.3(a)(3), Note

.

4 The N ote to Pennsylvania Rule of Civil Procedure No. 1042.3(a)(3) provides as f ollows:5 Here, the trial court ruled that Count I set forth a claim for medical

negligence and that the claim required expert testimony to establish negligence.

Trial Court Opinion 2/28/18 at 6. Because of Colon’s a ssertion in the certificate of

m erit that expert testimony was unnecessary

, and because Colon would not be able

to show that Dr. Rob le deviated from the standard of care without expert evidence,

the trial court found that Colon failed to set forth a legall y sufficient cause of action

for medical negligence against Dr. Rob le and , therefore, dismissed Count I. See i d.

We find no error in the trial court’s ruling.

Colon ’s claim cannot succeed as his medical malpractice claim requires

such expert testimony.

Courts sitting in medical malpractice cases require
detailed expert testimony because a jury of laypersons generally lacks the knowledge to determine the factual issues of medical causation; the degree of skill, knowledge, and experience required of th e physician; and
the breach of the medical standard of care . In contrast, plaintiffs in res ipsa loquitur [ 5 ] cases rely on the jury to fill

In the event that the attorney certifies under subdivision (a)(3) that an expert is unnecessary for prosecution of the claim , in the absence of exceptional
circumstances

, the attorney is bound by the certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.

Pa.R.C.P. No. 10 42.3(a)(3), Note

.

5 R es ipsa loquit u r is applicable when :

(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;6 in the missing pieces of causation and negligence, inherent in their cases, with the jury’s common experience.
Dete rmining whether there was a breach of duty, however,
involves a two

- step process: the court must first determine
the standard of care ; it then must examine whether the defendant’s conduct measured up to that standard . Not only does the plaintiff have the b urden of proving that the defendant did not possess and employ the required skill and knowledge, or did not exercise the care and judgment
of a reasonable professional , he or she must also prove that the injury was caused by the failure to employ that

requ isite skill and knowledge. We have previously concluded that this must be accomplished with expert medical testimony presented at trial by doctors testifying

as expert witnesses.

Toogood v. Owen J. Rogal, D.D.S., P.C. , 824 A.2d 1140, 1149 (Pa. 2003) (footnote

added)

.

Colon is bound by his assertion that he believes expert testimony is not

necessary, and accordingly, the trial court will preclude Colon from presenting

testimony of an expert on the questions of standard of care and causation. See

Pa.R.C.P. No. 10 42.3 ( a)(3), Note. This Court has stated:

(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.

(2) It is the fu nction of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusion s may reasonably be reached

.

Restatement (Second) of Torts § 328(D) ( Am. Law Inst. 1965)

.7 “[G]enerally[,] when the complexities of the human body are involved expert testimony is required to aid the jury in reaching conclusions as to the cause of pain or injury.” [ Wareham v. Jeffes , 53 4 A.2d 1314, 1321 (Pa. Cmwlth. 1989).] The only time expert testimony will not be required for a medical 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 through its every day experience and knowledge of comprehending the facts presented and drawing conclusions based on those facts.” Id. Generally, such negligence rises to the level of gross incompe tence.

McCool v. Dep’t of Corr. , 984 A.2d 565, 571 (Pa. Cmwlth. 2009 )

.

Colon’s assertions all center on his claim that Dr. Rob le prescribed the

“ wrong ” medication. Indeed, despite arguing that his allegations do not constitute a

professional liability claim against Dr. Rob le , Colon states that Count I “is based

only on his allegations that he was prescribed the wrong medication.” Colon’s Brief

at 10; see also id. at 8. Lay persons do not have, within their common knowledge

or experience, the ability to assess whether Dr. Ro bl e failed to exercise the care,

skill, judgment and training required for the medical care and treatment of Colon

and whether the failure to p rescribe the correct medication caused Colon’s claimed

damages. See Wareham

, 534 A.2d at 1321 . Without expert testimony to establish

the required standard of care and causation, Colon’s claim for medical negligence

against Dr. Roble must fail. See McCool , 984 A.2d at 571 ( holding that prison

inmate’s allegations were insufficient to state a claim in his action against prison

medical facility doctor, brought under medical malpractice exception to sovereign

immunity, because his certificates of merit incorrectly stated that expert testimony

was not necessary to aid the jury in reaching conclusions as to the cause of his pain

or injury; the ailments in question were such that an ordinary layperson would be8

incapable of deciding ). Therefore, the trial c ourt properly sustained the preliminary

objection for legal insuffic i ency to Count I of Colon’s Second Amended C omplaint.

In Count II of the Second Amended Complaint, Colon alleges both

vicarious liability and corporate negligence against CCS. The trial court dismissed

Colon’s vicarious liability claim because that claim asserts that CCS is vicariously

liable for Dr. Rob le ’s negligence, and the trial court had dismissed the negl igence

claim against Dr. Rob l e . Trial Court Opinion 2/28/18 at 7. The trial court also found

that Colon did not set forth factual allegations to support a claim of corporate

negligence. Id. at 8.

Under the theory of vicarious liability, “ t he corporation, as principal,

assumes the risk of individual agents ’ negligence

. . . . ” Scampone v. Highland Park

Care C tr

. , LLC

, 57 A.3d 582, 597 ( Pa. 2012). “ In this scenario, the corporation’ s
liability is derivative of the agents ’ breach of their duties of care to the plaintiff. ” Id.

at 598

. While it is unnecessary to plead all the v arious details of

an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent's authority, and how the tortious acts of the agent either fall

w ithin the scope of that authority, or, if unauthorized, were ratified by the principal.

Alumni Ass’ n, Delta Zeta of Lambda Chi Alpha Fraternity v. Sullivan , 535 A.2d

1095, 1100 n.2 ( Pa. Super. 1987 ), aff’ d sub nom. Alumni Ass’ n v. Sullivan , 572 A.2d

1209 ( Pa. 1990)

. Further, where the claim is that the principal is liable for the agent’s

professional negligence :

a certificate of merit . . . must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is not r equired to identify the9 specific licensed professionals who deviated from an acceptable standard of care. The purpose . . . is to ensure that a claim of vicarious liability made against a defendant is supported by a certificate of merit. Separate certific ates of merit as to each licensed professional for whom a defendant is alleged to be responsible are not required.

Pa.R.C.P. No. 1042.3(2)(1), Note.

As noted above, no breach of a duty of care by Dr. Roble can be found

without expert testimony to su pport t his claim. A ccordin g ly, CCS cannot be

vicariously liable for Dr. Roble ’s acts when Dr. Roble ’s negligence cannot be

established.

Colon also claims that CCS is vicariously liable for the acts and

omissions of the “Defendant physicians and the nurses who administered the

medication to [Colon] as though Defendant [ CCS ] performed the acts or omissions

itself” and assert s that CCS mainta ined control over the actions of “the Defendant

physicians and nurses. ” Second Amended Complaint ¶ 18. However, Colon fails to

identify the act or omission of a physician or professional other than Dr. Roble and

,

a s stated , CCS cannot be vicariously liab le for Dr. Roble’s acts

. Additionally, CCS

cannot be held liable for the acts of physicians and nurses not alleged to be agents

of CCS. Further, th e claim wi th respect to the “Defendant physicians and nurses”

stems from allegedly providing the “wrong” me dication. Th e physicians and nurses

cannot be found to have breached any standard of care, for which CCS would be

vicariously liable, without expert testimony to support t his claim . Thus, the

vicarious liability claim is legally insufficient.

However, a corporation may also be liable for direct and non

- delegable

duties of care to a plaintiff. Scampone , 57 A.3d at 598. As the trial court stated:10 “ Pennsylvania recognizes the doctrine of corporate negligence as a basis for hospital liability se parate from the liability of the practitioners who actually have
rendered medical care to a patient. ” Rauch v. Mike

- Mayer

, 783 A.2d 815, 826 (Pa. Super. 2001) (citation omitted).

“ The doctrine of corporate negligence imposes a non

delegable duty on the hos pital to uphold a proper standard of care to patients. ” Id. “ [C]orporate 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.” Welsh v. Bulger

, 548 Pa. 504, 698 A.2d 581 (1997).

Trial Court Opinion 2/28/18 at 7

- 8

. The doctrine of corporate negligence provides

for corporate liability where a medical facility fails to u phold the proper standard of

care owed its patient. T

hompson v. Nason Hospital , 591 A.2d 703, 707 ( Pa. 1991).

Colon asserts in his Second Amended Complaint that CCS is liable for

corporate negligence in that it failed to:

(a) oversee the nurse who rendered care to [Colon] by not ensuring that medication records were properly completed, including dosage amounts, frequency, and adverse side effects; (b ) formulate and/or enforce rules and policies pertaining to records were prop erly completed , including dosage amounts, frequency and adverse side effects; (c ) adequately train the nurses w ho rendered care to [Colon] by not ensuring that they were aware of the possible adverse side effects of blood pressure spike
associated with th e medication prescribed; and (d) upon information and belief, failed to provide its physicians with adequate financial support thereby limiting the availability of prescription medications making it necessary for [Colon] to take the medication that
caused [Colon’s] blood pressure to spike.11

Second Amended Complaint ¶ 20

.

All of these claims of corporate negligence by CCS are premised upon

Colon’s allegation that Colon was given the wrong medication and that th e incorrect

medication is what caused Colon’s blood pressure to spike. As noted, Colon cannot

establish that he was given the “wrong” medication and that the medication caused

his damages without provid ing expert testimony. Because C olon is precluded from

producing expert testimony based upon his c ertificate of m erit, he cannot establish

that he was given the “ wrong ” medication and, therefore, cannot establish any of the

alleged acts of corporate negligence that caused him to receive the “wrong”

medication

. Therefore, the trial court properly sustained the preliminary objections

to the legal sufficiency of Colon’s corporate negligence claim.

Accordingly, for the foregoing reasons, we affirm the decision of

the trial court.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mickey Santos Colon, :

Appellant :

:

v. :

: Correct Care Solutions, LLC, : Dr. Roble, Theresa Delbalso, : Christopher Oppman, John Wetzel : No. 834 C.D. 2018 and Susan Wislosky :

O R D E R

AND NOW, this 8th day of August , 2019, the February 28, 201 8 order

of the Court of Common Pleas of Schuylkill County is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge