J-A10022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 BENJAMIN ARTHUR PINK, BY JOYCE SMITH, HIS ATTORNEY-IN-FACT, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. UPMC PRESBYTERIAN SHADYSIDE, T/D/B/A WESTERN PSYCHIATRIC INSTITUTE AND CLINIC, Appellee No. 752 WDA 2015

Appeal from the Order Entered April 13, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): NP. GD12-020560 BENJAMIN ARTHUR PINK, BY JOYCE SMITH, HIS ATTORNEY-IN-FACT, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v. UPMC PRESBYTERIAN SHADYSIDE, T/D/B/A WESTERN PSYCHIATRIC INSTITUTE AND CLINIC, Appellee No. 753 WDA 2015

Appeal from the Order Entered April 27, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD12-020560

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J. MEMORANDUM BY BENDER, P.J.E.: FILED JULY 14, 2016 Appellant, Benjamin Arthur Pink, by Joyce Smith, h is attorney-in-fact, appeals from the order granting summary judgment in favor of Appellee,J-A10022-16

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UPMC Presbyterian Shadyside t/d/b/a Western Psychia tric Institute and Clinic. 1 After careful review, we affirm. Appellant has been diagnosed with autism, mental r etardation, and impulse disorder. Appellant’s Brief at 7

. In 2009, Appellant moved into a group home “because he wanted to go and live indepe ndently or codependently....” N.T. Deposition of Joyce Smith, 9/2 4/14, at 13. On August 24, 2010, he was involuntarily committed to Western Psychiatric Institute and Clinic (WPIC) under Section 7302 of the Mental Health Procedures Act of 1976, 50 P.S. §§ 7101-7503, (MHPA), for aggressive behavior and destruction of property. Id. As summarized by the trial court in its opinion: The “known” facts in this case are substantially un disputed. [Appellant] alleges that he suffered two injuries w hile admitted as an in-patient at [WPIC]. On or about October 26 , 2010, [Appellant] suffered an injury of unknown cause res ulting in a non-displaced or incomplete fracture of the left pa tella as well as an injury to his left foot. On the afternoon of Oc tober 28, 2010, less than two days after the first fall, [Appellant ] fell on his left arm, fracturing his elbow. [Appellant] is not comp etent to testify as to the cause of his own injuries, there are no w itnesses to the circumstances that caused [Appellant’s] injuries, a nd no facts or

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1 We note that Appellant has also erroneously appeal ed from the order denying his motion for reconsideration. He then fi led with this Court an Application for Consolidation, which we granted by per curiam order on June 8, 2015. It is well-settled that “the refusal of a trial court to reconsider, rehear, or permit reargument of a final decree is n ot reviewable on appeal.” Provident National Bank v. Rooklin , 378 A.2d 893, 897 (Pa. Super. 1977). Accordingly, we will address only the appea l from the order granting summary judgment.J-A10022-16

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records substantiating what negligent conduct, if a ny, by or on behalf of [Appellee] contributed to [Appellant’s] i njuries. Trial Court Opinion (TCO), 5/22/15, at 1-2 (unpagin ated) (citations to record omitted). Appellant instituted the underlying action on Octob er 25, 2012, by Writ of Summons. On January 10, 2013, Appellant filed a complaint and certificate of merit, in which he alleged negligenc e on the part of Appellee and sought damages for the alleged injuries he sust ained while admitted as an in-patient at WPIC. Appellant’s Brief at 7. Ap pellee filed preliminary objections, followed by an answer and new matter, a sserting immunity based on the MHPA. After a period of discovery, a jury trial was scheduled for March 13, 2015. On March 6, 2015, Appellee fil ed a motion for summary judgment, which was granted by the trial court on A pril 13, 2015. Appellant timely filed a motion for reconsideration. The tri al court denied Appellant’s motion on April 27, 2015, and on May 11, 2015, he f iled a notice of appeal. Herein, Appellant raises the following issues for our review:
I. Whether the lower court erred in granting [Appellee ’s] motion for summary judgment and denying the motion for reconsideration where there were sufficient facts developed in the record which would allow a jury to find that [Appellee’s] psychiatric institution acted wit h gross negligence or willful misconduct in the care and tr eatment provided to [] Appellant resulting in his injuries and damages? II. Whether the report of Appellant’s expert witness se ts forth within medical certainty a prima facie cause of act ion against [Appellee] for gross negligence? III. Whether the lower court erred in granting summary judgment and denying Appellant’s motion forJ-A10022-16

- 4 - reconsideration where a jury based upon the evidenc e and the report of Appellant’s expert could find that th e actions of [Appellee] caused the harm suffered by Appellant in accordance with Hamil v. Bashline , 392 A.2d 1280, 481 Pa. 256 (Pa. 1978)? IV. Whether the lower court erred in denying Appellant’ s motion for reconsideration of summary judgment wher e evidence available subsequent to the argument on [Appellee’s] motion showed that [Appellee’s] policy and practice of destroying staff notes concerning what happened over each twenty-four hour period effectiv ely destroyed evidence that [] Appellant could have use d to reconstruct the incident and its causation which sh ould have entitled [] Appellant to an adverse inference instruction to the jury? Appellant’s Brief at 5-6 (unnecessary capitalizatio n omitted). Our standard of review with respect to a trial cou rt’s decision to grant or deny a motion for summary judgment is well-settl ed: A reviewing court may disturb the order of the tria l court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court’s decision to enter s ummary judgment, we focus on the legal standard articulate d in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact an d the moving party is entitled to relief as a matter of law, sum mary judgment may be entered. Where the non-moving party bears t he burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Fail ure of a non-moving party to adduce sufficient evidence on a n issue essential to his case and on which it bears the bur den of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts a s to the existence of a genuine issue of material fact must be resolved against the moving party.J-A10022-16

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Thompson v. Ginkel , 95 A.3d 900, 904 (Pa. Super. 2014) (citations omitted). Preliminarily, we note that the MHPA provides limi ted protection from civil and criminal liability to mental health perso nnel and their employees in rendering treatment. Farago v. Sacred Heart General Hospital , 562 A.2d 300, 304 (Pa. 1989). Specifically, Section 71 14 provides immunity as follows: (a) In the absence of willful misconduct or gross negli gence, a county administrator, a director of a facility, a p hysician, a peace officer or any other authorized person who pa rticipates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed unde r partial hospitalization, outpatient care or leave of absenc e, or that the restraint upon such person be otherwise reduced , or a county administrator or other authorized person who denies an application for voluntary treatment or for invol untary emergency examination and treatment, shall not be c ivilly or criminally liable for such decision or for any of i ts consequences. 50 Pa.C.S. § 7114(a). Our Supreme Court has determined that the immunity provided by the MHPA extends to institutions, as well as nat ural persons, that provide care to mentally ill patients. Farago ..., 562 A.2d [at] 303 []. Additionally, our Supreme Court has i nterpreted § 7114(a) to include not only treatment decisions, bu t also, “‘care and other services that supplement treatment’ in or der to promote the recovery of the patient from mental ill ness.” Allen v. Montgomery Hospital , 548 Pa. 299, 696 A.2d 1175, 1179 (1997). Downey v. Crozer-Chester Medical Center , 817 A.2d 517, 525 (Pa. Super. 2003). As a hospital that provides psychiat ric care, we conclude that the MHPA most certainly applies to Appellee in this case. “Simply stated,J-A10022-16

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Appellant must prove willful misconduct or gross ne gligence to throw off the blanket of limited immunity which protects [Appelle e]....” Albright v. Abington Memorial Hosp. , 696 A.2d 1159, 1164 (Pa. 1997). Here, Appellant does not dispute the protection pr ovided to Appellee by the MHPA, but rather asserts that the trial cour t erred in finding, as a matter of law, that Appellant failed to establish g ross negligence or willful misconduct. Appellant’s Brief at 9. In Bloom v. Dubois Regional Medical Center , 597 A.2d 671 (Pa. Super. 1978), this Court arrive d at a definition of gross negligence for purposes of the MHPA. This de finition was later adopted by our Supreme Court in Albright : It appears that the legislature intended to require that liability be premised on facts indicating more egregiously devia nt conduct than ordinary carelessness, inadvertence, laxity, o r indifference. We hold that the legislature intended the term gros s negligence to mean a form of negligence where the facts suppor t substantially more than ordinary carelessness, inad vertence, laxity, or indifference. The behavior of the defen dant must be flagrant, grossly deviating from the ordinary stand ard of care. Albright , 696 A.2d at 1164 (quoting Bloom , 597 A.2d at 679). “Willful misconduct is conduct of such a nature that the act or desired to bring about the result that followed or at least was aware that it was substantially certain to follow.” Dudley v. USC Corp. , 606 A.2d 916, 921-922 (Pa. Super. 1992). In the present case, Appellant avers that the evid ence establishes gross negligence on the part of Appellee for: 1) fa iling to protect Appellant; 2) inflicting suffering on Appellant through delay in treatment; and 3) failingJ-A10022-16

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to supervise Appellant following his knee injury. Appellant’s Brief at 12-19. Appellant further avers that this matter should hav e been “determined by a jury and not as a matter of law.” Id. at 12. First, we note that we addressed the very issue of whether the jury has the sole right to determine gross negligence in Downey : While it is generally true that the issue of whethe r a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take t he issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

... To require mental health employees and their employ ers to defend jury trials on the issue of gross negligence where the trial judge finds as a matter of law that, at best, only ordinary negligence has been established, would gut the limi ted immunity provision of the Act of any meaning and unfairly su bject such employees and facilities to protracted and expensiv e litigation. Downey , 817 A.2d at 525-526 (quoting Albright , 696 A.2d at 1164-65). In our review of the trial court’s conclusion that no reasonable jury could find gross negligence based on the evidence present ed, we remain mindful that Appellee’s behavior must be determined to be f lagrant and grossly deviating from the ordinary standard of care. See Downey , 817 A.2d at 526. Appellant asserts that during his course of stay a t WPIC, he was involved in numerous altercations with other patien ts and that Appellee did nothing to protect him. Appellant’s Brief at 13. However, Appellant acknowledges that Appellee transferred an abusive r oommate to anotherJ-A10022-16

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room. Moreover, as we gleaned from the parties’ br iefs and our review of the record, Appellant had an individualized treatme nt plan, was regularly monitored, and was examined daily by Dr. Russell M. Farr (“Dr. Farr”), the staff psychiatrist. He participated in group activ ities, which took place in an activity room with staff present, and spent time in the common lounge area located in front of the nurse’s station. Appellant further claims that Appellee was grossly negligent in delaying treatment of his knee and by failing to su pervise him following his injury. Appellant’s Brief at 17-18. More specific ally, Appellant states that he was seen by Lori Lapina, P.A., at 3:00 p.m. on Octo ber, 26, 2010 for his knee injury. Appellant asserts that because of his limited mental capacity and verbal communication skills, he was unable to e xplain what happened. “He could only say that his knee ‘hurts a lot’ and he had difficulty walking. The P.A. noted an unsteady gait, unlike in the morn ing, and found swelling with a loss of bony landmarks in the left knee with bruising and warmth in the area of the knee. An x-ray of the knee was ord ered at the same time which was approved by Dr. Farr.” Id. at 14. Appellant baldly asserts that after injuring his knee, Appellee made no provision s for his comfort and safety and concludes that Appellee’s “failure to as sess and provide proper supervision of [Appellant] and others led to the in juries which began on October 26 th .” Id. at 16. The record belies Appellant’s assertion that Appel lee was grossly negligent in delaying treatment of his knee. It is uncontradicted thatJ-A10022-16

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Appellant was examined at 3:00 p.m. on the date of the alleged incident. An x-ray was ordered during said examination and wa s then conducted at 8:28 p.m. that same night. Dr. Farr, examined Appe llant the next morning at approximately 8:30 a.m. At 12:20 p.m. on Octobe r 27, 2010, a consultation with orthopedics was ordered. Later t hat same day, orthopedics casted Appellant’s leg. As to the care of Appellant following his knee injury, we gleaned from the record that Appell ant was using a walker and that the nursing staff encouraged Appellant to remain off his feet and placed him on “level 2” fall precautions, which is Appellee’s highest level of fall precaution. Appellant was clearly not “ignore d” after his injury. As delineated by the definition set forth above, g ross negligence refers to conduct that goes well beyond ordinary negligenc e, carelessness, inadvertence, laxity or indifference. Here, Appell ant has failed to establish any facts whatsoever to support his allegations tha t Appellee acted in a flagrant manner and grossly deviated from the stand ard of care. Thus, we conclude that Appellant’s claims in this regard are meritless. In further support of our conclusion that the facts in the present case do not substantiate a finding of gross negligence, we look to this Court’s decision in Downey . There, a mentally ill patient was admitted to a medical center where it was determined that she required su pervision of her daily living activities, including bathing. Downey , 817 A.2d at 522. The medical center was sued by the patient’s estate after she d rowned as a result of the center’s failure to directly supervise her while sh e was bathing. Id. ThisJ-A10022-16

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Court held that “the alleged failure to supervise t he decedent while bathing constituted nothing more than ordinary ‘carelessnes s, inadvertence, laxity or indifference.’” Id. at 526. In examining the record, the Downey Court noted that at no point did the expert report state what standard of care or procedures or policies were ignored or violated by the staff. Id. Moreover, a thorough review of the record led us to conclude that: “[T]he Decedent’s death, while unfortunate, was accidental. There wa s no indication of gross negligence ... [a]t most , their failure to supervise Downey for the entire period of bathing constituted ordinary carelessness , inadvertence, laxity or indifference which fails to give rise to a cause of action under the MHPA.” Id. at 527 (emphasis added). Here, Appellant has failed to establish ordinary negligence, 2 let alone gross negligence, as he does not show any causal co nnection between Appellee’s actions and his injuries. Based on our decision in Downey , even if Appellant were able to prove that his injuries w ere a direct result of Appellee’s failure to properly supervise him, that would at most give rise to a finding of ordinary negligence. See also Albright , 696 A.2d at 1159 (applying immunity under the MHPA and holding that there was no gross negligence on the part of the hospital where a pati ent receiving outpatient

____________________________________________ 2 “Negligence is established by proving the followin g four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting in jury; and (4) actual damages.” Grossman v. Barke , 868 A.2d 561, 566 (Pa. Super. 2005).J-A10022-16

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care set fire to her home as a result of her mental health issues, and the hospital was aware, prior to the incident, that the patient had not been taking her medication, had missed her recent appoin tments, and that her mental condition was deteriorating, but failed to h ave the patient committed); Farago , 562 A.2d at 300 (affirming a finding that the MHP A immunity applied and holding that plaintiff failed to establish gross negligence where plaintiff claimed that she was sex ually assaulted by another patient as a result of the hospital’s failu re to adequately supervise and protect her). While it is unfortunate that Appellant sustained th e two injuries described herein, he has failed to establish any fa cts whatsoever to support his allegations that his injuries were caused by a flagrant and gross deviation from the standard of care. Accordingly, we discern no abuse of discretion in the trial court’s finding that Appellant has failed to establish gross negligence. Next, Appellant falsely equates corporate negligen ce with gross negligence and asserts a claim of corporate neglige nce against Appellee for its alleged lack of care for Appellant while residi ng as an in-patient in its facility. Appellant’s Brief at 19. “Corporate neg ligence 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.” Thompson v. Nason Hospital , 591 A.2d 703, 707 (Pa. 1991). The Thompson Court adopted the doctrine of corporateJ-A10022-16

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negligence as a theory of hospital liability and no ted “that for a hospital to be charged with negligence, it is necessary to show that the hospital had actual or constructive knowledge of the defect of p rocedures which created the harm.” Id. at 708. “Furthermore, the hospital’s negligence m ust have been a substantial factor in bringing about the har m to the injured party.” Id. Appellant relies on the expert testimony of James R . Merikangas, M.D., a renowned psychiatrist, in support of his claim of corporate negligence. 3 Appellant argues that the expert report of Dr. Meri kangas is sufficient to support a prima facie case for gross negligence, as it establishes that Appellee violated three of the corporate duties as set forth in the Thompson case. Appellant’s Brief at 21. However, we previo usly acknowledged an important distinction between Thompson and the present case. “In Thompson , the Supreme Court did not consider the difference between negligence and gross negligence. Instead, the Court only needed to determine if material facts existed such that th e hospital could be found negligent.” Potts v. Step By Step, Inc. , 26 A.3d 1115, 1120 (Pa. Super. 2011). Thus, we concluded “it is problematic to re ly on Thompson for the proposition that the acts in that case could not qu alify as gross negligence.” Id. In light of our conclusion herein that absent th e finding of gross

____________________________________________ 3 See Expert Report of James R. Merikangas, M.D., attach ed as Exhibit “D” to Appellee’s Motion for Summary Judgment.J-A10022-16

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negligence, Appellee is subject to the immunity pro vided under the MHPA, we deem Appellant’s reliance on Thompson misguided and this issue without merit. In his third issue, Appellant avers that the trial court erred in granting summary judgment and denying his motion for reconsi deration where a jury, based on the evidence of record and the exper t report of Dr. Merikangas, could have found that the actions of Ap pellee caused the harm Appellant suffered. Appellant’s Brief at 21. Appe llant mistakenly applies Section 323(a) of the Restatement (Second) of Torts 4 and alleges that Appellee is liable under this section for the damag es suffered by Appellant. Appellant further argues that the Supreme Court’s d ecision in Hamil v. Bashline , 392 A.2d 1280 (Pa. 1978) is controlling in this c ase. Again, Appellant fails to take into account that Appellee is protected by immunity

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4 Section 323 provides: § 323. Negligent Performance of Undertaking to Rend er Services. One who undertakes, gratuitously or for considerati on to render services to another which he should recognize as ne cessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertak ing, if (a) his failure to exercise care increases the risk of harm, or (b) the harm is suffered because of the other’s relianc e upon the undertaking. Restatement (Second) of Torts § 323 (1965).J-A10022-16

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under the MHPA and, thus, cannot be held liable abs ent a finding of gross negligence. Section 323(a) and the decision in Hamil are based merely on a finding of ordinary negligence. Hence, this clai m is also without merit. Moreover, we note: It is well settled in the law that except in rare s ituations ... the mere occurrence of an injury does not prove neglige nce and that an admittedly negligent act does not necessarily en tail liability; rather even when it is established that the defenda nt breached some duty of care owed the plaintiff, it is incumbe nt on a plaintiff to establish a causal connection between defendant’s conduct and the plaintiff’s injury. Stated another way, the defendant’s conduct must be shown to have been the proximate cause of plaintiff’s injury. Proximate cause is a term of art denoting the point at which legal responsibility at taches for the harm to another arising out of some act of defendan t; and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in b ringing about the plaintiff’s harm. The defendant’s negligent conduc t may not, however, be found to be a substantial cause where t he plaintiff’s injury would have been sustained even in the absenc e of the actor’s negligence. Hamil , 392 A.2d at 1284 (citations omitted). After care ful review, we agree with the trial court’s finding that Appellant has f ailed to produce sufficient facts to establish any causal connection whatsoever between Appellee’s actions and Appellant’s injuries. It is Appellant’s burden to establish causation th rough expert testimony: Normally a plaintiff may establish his case of caus ation with any evidence, direct or circumstantial, which tends to show defendant’s actions as the legal cause of his harm. Where, however, the ultimate determinations lie beyond the knowledge or expertise of the average layperson, expert testi mony is permitted (and sometimes required) to aid the jury in itsJ-A10022-16

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understanding of the factors involved and the teach ing of the pertinent discipline with respect thereto. ... [I]t i s generally acknowledged that the complexities of the human bod y place questions as to the cause of pain or injury beyond the knowledge of the average layperson. For a plaintiff to make out his cause of action in such a case, therefore, the law requir es that expert medical testimony be employed. In addition to its bearing on whether or not the defendant’s conduct was negligen t, such testimony is needed to establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged. Id. at 1285. The law provides that: [E]xpert testimony is incompetent if it lacks an ad equate basis in fact. While an expert’s opinion need not be based on absolute certainty, an opinion based on mere possibilities i s not competent evidence. This means that expert testimo ny cannot be based solely upon conjecture or surmise. Rather , an expert’s assumptions must be based upon such facts as the ju ry would be warranted in finding from the evidence. Gillingham v. Consol Energy, Inc. , 51 A.3d 841, 849 (Pa. Super. 2012). Appellant produced only the expert testimony of Dr . Merikangas. In his report, Dr. Merikangas summarized Appellant’s t reatment plan and the facts set forth herein regarding Appellant’s two in juries. Dr. Merikangas concluded his report by opining that “[a]s a result of negligence and a reckless disregard for his safety [Appellant] suffe red not one, but two falls resulting in injury, resulting in his condition and prospects to be substantially worse as a result o[f] his hospitalization at WPIC. ” 5 However, Dr. Merikangas failed to explain how Appellant fell, no r did he provide any

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5 Expert Report of Dr. Merikangas, attached as Exhib it “D” to Appellee’s Motion for Summary Judgment, at 3.J-A10022-16

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factual support for his conclusion that Appellee’s actions caused the injuries. Thus, this expert report contained mere conjecture and failed to meet Appellant’s burden of proof. Finally, Appellant claims that Appellee’s policy an d practice of destroying staff notes concerning what happened ove r each twenty-four hour period effectively destroyed evidence that App ellant could have used to reconstruct each incident and its causation; thus, he was entitled to an adverse inference instruction to the jury. Appella nt’s Brief at 24. In response, the trial court opined: [Appellant’s] reliance upon these missing notes doe s not support an adverse inference charge. There is no additiona l record evidence regarding the nature of the notes, how the y are historically maintained, how they could have been p roperly maintained, or how they might have been improperly disposed of or destroyed in this case. There is nothing in the testimony available in this case to support a suggestion that [Appellee], in any way, uncharacteristically, improperly, or inten tionally handled or destroyed these notes. Of course, becau se they are not available, we are without the benefit of [knowi ng] what information is provided in the specific notes; but, more importantly, the record does not reflect what type of information is generically provided in these notes so as to per mit even a reasoned guess as to whether they might, or might n ot, be meaningfully expected to speak to the question of w hether [Appellee] engaged in gross negligence and/or wheth er [Appellee’s] conduct in any way caused or contribut ed to [Appellant’s] injury. TCO at 3 (unpaginated). We discern no abuse of dis cretion by the trial court. Moreover, we note that the record includes daily Progress NotesJ-A10022-16

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signed by Dr. Farr, which appear to include a summa ry of the staff’s daily notes regarding Appellant’s care and behavior. 6 As Appellant failed to establish a genuine issue o f material fact, we conclude that the trial court did not commit an err or of law or abuse its discretion when it granted Appellee’s motion for su mmary judgment. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2016

____________________________________________ 6 See Progress Notes, attached as Exhibit “A” to App ellee’s Motion for Summary Judgment.