J-A20039-18

2018 PA Super 359

KATHRYN F. LEIGHT AND JOHN L.

LEIGHT, HER HUSBAND, Appellants

v.

UNIVERSITY OF PITTSBURGH

PHYSICIANS, UPMC, UNIVERSITY OF

PITTSBURGH OF THE

COMMONWEALTH SYSTEM OF

HIGHER EDUCATION, SUSAN SHICK,

AND PHILLIP L. CLARK,

ADMINISTRATOR OF THE ESTATE OF

JOHN F. SHICK, DECEASED

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1912 WDA 2017

Appeal from the Order Entered December 15, 2017

in the Court of Common Pleas of Allegheny County,

Civil Division at No(s): No. GD12-9942

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.: FILED DECEMBER 31, 2018

Kathryn F. Leight (“Kathryn”) and John L. Leight, her husband

(collectively “the Leights”), appeal from the Order dismissing with prejudice

all of their claims against UPMC and University of Pittsburgh of the

Commonwealth System of Higher Education (“Pitt”), thereby allowing the

Leights to file an appeal from the Order sustaining the Preliminary Objections

filed by Pitt and University of Pittsburgh Physicians (“UPP”), and dismissing

the Leights’ Mental Health Procedures Act (“MHPA”) claims.1 We affirm.

____________________________________________

1 The Leights’ other claims against Susan Shick (“Susan”), John F. Shick’s

(“Shick”) mother, and Phillip L. Clark, Administrator of the Estate of John F.
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This appeal arises from the March 8, 2012 shooting incident, wherein

Shick killed one person and injured several others, including Kathryn, at

Western Psychiatric Institute and Clinic (“WPIC”). In the Leights’ Second and

Third Amended Complaints,2they pleaded the following, in relevant part:

28. ... [A]t all times that each and every physician who was an

employee, servant and/or agent of Defendants UPMC, UPP and/or

Pitt provided medical services to Shick as described below, they

and each of them had the ability to access all of Shick’s medical

records documenting treatment provided by all physicians who

were the agents, servants and/or employees of Defendants UPMC,

UPP and/or Pitt.

29. Unless otherwise stated below, Shick’s Pennsylvania treating

physicians and their practices’ respective staff members and

administrators were the agents, servants and/or employees of

Defendants UPMC, UPP and/or Pitt at all times pertinent to this

cause of action, and those physicians identified as resident

physicians were the employees of Defendant Pitt.

30. In 2007, [Kathryn] began and continued to perform the

functions of the outpatient receptionist in the [WPIC] lobby. ...

49. On February 24, 2005, Shick first engaged in behaviors

causing peace officers and physicians to believe that he was

suffering from severe mental illness causing him to be an

imminent threat of danger to himself or others, requiring his

involuntary treatment in a psychiatric hospital, including the

involuntary administration of antipsychotic medications. ...

____________________________________________ Shick, deceased, were disposed of in prior Orders. We further note that while

UPMC had filed the Preliminary Objections at issue in this case with Pitt and

UPP, UPMC is not a party to this appeal. Indeed, the Leights filed a Notice of

Non-Participation, stating that Susan, Phillip L. Clark, and UPMC had no

interest in the outcome of this proceeding.

2

In their Third Amended Complaint, the Leights incorporated the vast majority

of their averments in their Second Amended Complaint, and substituted or

added six averments. Thus, we will cite to both Complaints in addressing this

appeal.
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51. On that date, Shick, then 24 years old, was brought to the St.

Luke’s - Roosevelt Hospital (“St. Luke’s”) emergency room in

handcuffs by emergency medical providers and members of the

New York City Police Department (“NYPD”), where he was placed

in restraints and medicated intramuscularly in the psychiatric

emergency room due to his uncooperative and combative

behaviors, including attempts to elope (run away) from the

facility. ...

53. Involuntary [c]ourt[-]approved commitment and involuntary

antipsychotic medication proceedings were initiated, and both

were approved and began. ...

60. On April 27, 2005, the antipsychotic medication had improved

Shick’s condition to the point that he was much less paranoid, was

no longer an acute danger to himself or others, was stable for

discharge, and Shick agreed to be followed by the Mobile Crisis

Team at his home to ensure his apartment would be in livable

condition, and to undergo further treatment at Metropolitan

Center for Mental Health. ...

62. [On May 3, 2005,] Shick was again taken to St. Luke’s ER,

where he was offered and spit out oral Risperdal, and he was again

involuntarily committed and medicated intramuscularly, and the

emergency room psychiatrist signed applications for his

involuntary commitment and treatment, as he was a danger to

himself and others. ...

85. ... Susan and Shick became aware of his need to undergo

ongoing psychiatric treatment, including an appropriate

antipsychotic drug regimen, in order to control his schizophrenia

and prevent him from being a danger to himself or others. ...

89. Shick was involuntarily committed to the New York- Presbyterian Cornell Medical Center [], where he remained under

court[-]ordered involuntarily treatment, including involuntary

antipsychotic medication administration, until June 10, 2008. ...

101. In April 2009, Shick was admitted to [the Chemistry Ph.D.

program at Portland State University in Oregon] as a student and

graduate teaching assistant for the Fall 2009 quarter, and moved

to Portland. ...
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117. Shick was involuntarily treated, including involuntary

administration of antipsychotic medications at [Providence

Portland Medical Center] until February 10, 2010, when he was

transferred for additional inpatient psychiatric care at Blue

Mountain Recovery Center, a state mental institution located in

Pendleton, Oregon. ...

120. Shick was discharged from Blue Mountain on May 12,

2010, .... ...

138. On March 30, 2011, Shick was accepted into the [Duquesne

University Doctoral] program [in the Department of Biological

Sciences], and was granted a graduate teaching assistantship. ...

140. On June 23, 2011, Shick began to establish a patient-primary

care physician relationship with UPP doctors at UPMC Shadyside

Family Health Center (“Shadyside Family”).

141. Shick provided Shadyside Family with the requested

executed authorization to obtain the records of his most recent

treating physician, Barry Egener, M.D., from LMG Northwest Clinic

[(“LMG”)] in Portland, Oregon.

142. Shadyside Family staff requested and LMG staff provided

Shick’s treatment records to Shadyside Family on July 13, 2011.

143. From review of the LMG records, it was apparent that on

Shick’s first visit with LMG on April 14, 2011, Shick claimed to

have been diagnosed with depression, and did not take sufficient

medication to efficaciously treat that condition. ...

147. On July 22, 2011, nine days after Shadyside Family’s receipt

of the LMG records, Shick was evaluated as a new patient by the

resident family practice physician assigned to that task by UPP at

Shadyside Family, Thomas Weiner, M.D., with complaints of neck

and ankle pain, elevated cholesterol and depression.

148. Dr. Weiner, as all residents in the practice did, at least briefly

conferred with an experienced physician designated to monitor

the residents’ progress and training before referring Shick to

physical therapy and a UPP pain management practice,

prescribing non-steroidal anti-inflammatory medication, a muscle

relaxer, and continuation of previously[-]prescribed Prozac.
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149. On August 16, 2011, Shick ... returned to be seen by Dr.

Weiner, complaining of neck, shoulder and ankle pain and seeking

narcotics, for which he was again prescribed physical therapy. ...

155. ... [O]n September 22, Shick was again seen by Dr. Weiner,

with complaints of chest and neck pain, belching, vomiting and

depression.

156. Dr. Weiner ordered an electrocardiogram, again referred him

to pain management, and ordered a calcium channel blocker used

to relax the muscles of the heart and blood vessels. ...

160. Shick was next evaluated by Dr. Weiner six days later[,] on

October 17, 2011, with complaints of severe headaches, neck and

back pain, stable depression, and requesting cholesterol level

blood testing.

161. Dr. Weiner detected an unusual optic disc in Shick’s eye

during examination, referred Shick to an ophthalmologist for

further evaluation, ordered Imitrex, which narrows blood vessels

around the brain to treat migraine[s], ordered the requested blood

testing, and again referred Shick to pain management for the neck

and back pain.

162. On that date, Dr. Weiner first recorded his impression that

the pain complaints might be due to mental illness, that another

psychiatric diagnosis besides depression was very likely, that he

was unsure of the primary psychiatric diagnosis, and that Shick

may benefit from a psychiatric referral at some point. ...

172. Three days later, on October 24, 2011, Shick was first seen

by UPP pain management specialist Edward Heres, M.D.[,] of

UPMC Pain Management, with complaints of pain in his chest, back

and shoulder, claiming that the pain began after a heart event one

year previously, his personal care physician would not write any

more medication for him, and seeking a prescription for the

narcotic pain analgesic Hydrocodone.

173. Dr. Heres reviewed Shick’s past medical history on UPP’s

electronic system, including the depression diagnosis, noted that

the patient’s affect was flat, and noted the inconsistency between

the pain complaints and his examination.
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174. Dr. Heres changed Shick’s [non-steroidal anti-inflammatory

drug] medication and recommended trigger point injections for

diagnostic and treatment purposes, which Shick underwent in his

right trapezius and deltoid on October 31, 2011.

180. On November 4, 2011, Shadyside Family staff set up an

appointment for Shick to be evaluated by [WPIC] personnel.

181. On November 9, 2011, Shick underwent a psychiatric

diagnostic evaluation by a [WPIC] licensed clinical social worker.

182. Shick denied prior psychiatric treatment, was a very poor

historian, was very guarded and disconnected, and reported

severe pain all over because he wanted a wife.

183. Shick denied a long list of prior psychiatric history symptoms

or diagnoses with a very animated smile and stating “thank you

for asking” in response to each of those questions. 184. Shick ... stated that a psychologist friend had told him that

he was bipolar.

185. Shick acknowledged that he had been discharged from the

Duquesne program as the result of harassment charges because

of unacceptable interactions with women .... 186. Shick stated he was there for male erectile dysfunction and

wanted medications to address that problem.

187. The social worker encouraged him to follow up with his PCP

for that medication, but Shick said his PCP was out of town and

he needed to see a psychiatrist.

188. Shick signed the requested authorization allowing [WPIC]

personnel to communicate with Susan, and received a November

28 appointment with a [WPIC] psychiatrist.

189. The next day, November 10, Shick called Shadyside Family

seeking pain alleviation.

190. After consulting with Dr. Weiner, the Shadyside Family staff

member called Shick, advised him of his elevated cholesterol

levels, that he should keep his appointment with the psychiatrist,
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and that Dr. Weiner had refused his request to prescribe pain

medication or increased dosages of statin medications. ...

193. ... [O]n November 14, Shick was seen by UPP family practice

resident physician Juan Bautista, M.D.[,] at Shadyside Family. ...

194. Dr. Bautista ordered comprehensive blood and urine testing,

ordered [] Celebrex, gave Shick a consult to the UPMC pain clinic,

ordered the histamine-2 blocker Zantac for treatment of reflux,

recommended a return in three days, and refused the requested

kidney test.

195. Dr. Bautista’s treatment note expressed concern over the

patient’s statement about getting fired from his job since he was

recorded as being unemployed on the chart, and refused the

request for a Prozac refill because the chart indicated he had

remaining refills available for one year. 196. [On] November 15, 2011, Shick called Shadyside Family

seeking his test results.

197. Later that day, Shick called Shadyside Family requesting a

Flexeril refill from Dr. Weiner, which the nurse refilled on the order

of the doctor covering in Dr. Weiner’s absence.

198. ... [O]n November 17, Dr. Bautista called Shick, spoke with

him, advised [him] of abnormal test results indicating elevated

cholesterol and potassium levels, agreed to and did send Shick

written notice of the abnormal blood work and, in response to

Shick’s complaint that bills from that practice had been sent to

Shick under the wrong name, Shick was referred to billing.

199. The next day, November 18, Shick called Shadyside Family

asking for a referral to dermatology.

201. Four days later, on November 25, Shick went to the

emergency room at 1 UPMC Magee Woman’s Hospital with

gastrointestinal complaints, including belching and vomiting, as

well as various upper body pains, was agitated, rude and

uncooperative with the staff, and demanded multiple radiological

and blood tests.

202. Shick ... was referred to the UPMC gastrointestinal clinic.
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203. The next day, November 26, Dr. Weiner called and spoke

with Shick to advise him of his elevated cholesterol and slightly

elevated potassium levels in his blood work results.

204. Dr. Weiner noticed Shick’s pressured speech and encouraged

him to be treated by a psychiatrist, which Shick rejected.

205. Two days later, on November 28, Shick underwent the

recommended evaluation by UPP psychiatrist Jatinder Babbar,

M.D.[,] at Western Psych.

206. Shick denied prior psychiatric treatment, answered almost

no questions in a straightforward manner, had very poor insight

and disorganized thoughts, and denied suicidal or homicidal

ideations.

207. Dr. Babbar called Susan, who advised that Shick had five

prior psychiatric admissions, including one for three months in

Portland in 2010.

208. Because Susan advised that Abilify and individual psychiatric

therapy had been effective in the past, Dr. Babbar strongly

encouraged Shick to start that medication and begin therapy,

which Shick refused to do[,] and left. ...

209. Dr. Babbar furnished Susan with the numbers for the [WPIC]

clinic and for resolve, the program within [WPIC] that, among

other functions, takes and responds to calls about involuntary civil

commitments, and sends mobile teams to evaluate and transport

individuals requiring the same. 210. Dr. Babbar diagnosed Shick as being schizophrenic and

noncompliant with his medications.

211. Shick was then scheduled for further psychiatric evaluation

and treatment by Konsale Prasad, M.D.[,] of UPP’s Department of

Psychiatry.

212. The next day, November 29, Dr. Weiner called from

Pennsylvania and first spoke with Susan, who advised that Shick

had been diagnosed as schizophrenic, had seen Dr. Babbar, but

refused to be treated by him again.
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213. On that same day, Dr. Weiner sent an email to UPP

psychiatrist Stephanie Richards, M.D., who was on the staff of

Shadyside Family, explaining[ Shick’s behavior.] ...

219. A week later, on December 20, pursuant to the ER doctor’s

referral, Shick was seen by Christine Gulati, M.D.[,] of UPP’s

Division of Gastroenterology, Hepatology & Nutrition, self- diagnosing a duodenal ulcer due to episodes of vomiting his

Zantac and aspirin (but not the Prozac), as well as excessive gas,

belching, nausea, abdominal pain, and a history of depression,

requesting a prescription for the anti-ulcer medication Carafate. ...

221. On that same day, Shick was seen by Jody Maranchie, M.D.

[(“Dr. Maranchie”)] of UPP’s Department of Urology, with

complaints of an elevated potassium test result, intense bilateral

lower quadrant pain that he attributed to passing kidney stones,

as well as a history of gastroesophageal reflux disease, an ulcer,

migraine headaches, chronic muscle back spasms, “ischemic

stroke” resulting in left ankle pain, and intermittent chest pain,

but no evidence of myocardial infarction.

222. Dr. Maranchie performed a physical examination and

reviewed Shick’s laboratory data, advised Shick (and noted to Dr.

Weiner) that there was no evidence of urologic pathology. ...

225. [On] December 23, Shick was seen by Dr. Weiner about his

one[-]time elevated potassium level, with Shick stating his belief

he had the ability to control his own potassium level, and with

complaints of regular severe headaches and pain, which he was

unable to characterize.

226. Shick accused Dr. Weiner of being like his mother in asking

about the pain, and said he could only articulate his pain in essay

form, which he would provide to Dr. Weiner in February, and

would appreciate it if Dr. Weiner would edit it.

227. Dr. Weiner recommended that Shick begin taking anti–

psychotic medication, with Shick responding in a grandiose and

dismissive fashion, both as to Dr. Weiner and as to Dr. Babbar.

228. Dr. Weiner recognized that the body pain complaints were

“most likely” psychosomatic due to Shick’s schizophrenia, referred

him to Dr. Richards[,] and recommended anti-psychotic
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medications, all of which Shick refused, while continuing to deny

his schizophrenia and prior treatment for it.

[234-271. Detailing Shick’s contact with various UPP physicians

between December 29, 2011, and January 23, 2012.]

272. ...[O]n January 25, Shick was first evaluated by UPP primary

care physician James Jarvis, M.D.[(“Dr. Jarvis”),] of Stull, Jarvis

and Spinola Internal Medicine Associates-UPMC with complaints of

ankle pain, two ischemic strokes, diabetes, pancreatic and liver

diseases and peptic ulcer disease, indicated his belief that

Simvastatin provided him pain relief, and requested a prescription

for the pain treatment drug Tramadol.

273. Dr. Jarvis checked the chart, recognized that Shick’s

overriding defect was clearly psychiatric in nature, and refused to

treat the patient, referring him to the doctors who had ordered

the numerous tests so that he could obtain the test results.

274. On that same date, Shick went to undergo the CT scan

recommended by Dr. [Swaytha] Ganesh and refused the

prescribed iodinated contrast study; after consultation with the

radiologist, Dr. Ganesh ordered the scan to proceed without

contrast, and that occurred. ...

276. Dr. Weiner noted that the patient was “floridly psychotic at

the moment,” will discuss with psych, “I do not think he meets

criteria for [involuntary commitment] but will discuss this with

them; patient believes he suffered an ‘ischemic stroke’ and this

was due to inadequate statin dose.” ...

278. [On] February 2, Shick initiated treatment with UPP family

practitioner Ya’aqov Abrams, M.D. [(“Dr. Abrams”)] from Squirrel

Hill Family Health Center with complaints of vomiting and

abdominal pain, and requesting specific testing for treatment of

his self-diagnosed pancreatitis and diabetes.

279. On that date, Dr. Abrams, using an authorization executed

by Shick and information provided by him, had available for review

copies of Shick’s prior medical records from another Portland

physician, Dr. Iverson, reflecting the depression diagnosis, which

had been received on January 29. ...
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284. Two days after Shick’s visit with Dr. Abrams, on February 4,

Shick went to the UPMC Presbyterian Hospital emergency

department, complaining of nausea, abdominal pain, vomiting and

“white stringy things” in his stool.

285. The UPP ER doctor reviewed the patient’s UPMC chart,

recognized the multiple previous medical interactions, that the

patient had not been engaged in any activities or been in any

locations where parasitic infections would be likely, and found no

support for the same on physical exam. ...

287. The next day, February 5, Shick went to the UPMC

Presbyterian Hospital emergency room with complaints of nausea

and vomiting and worms in his stool, was given Zofran for the

nausea, and he then refused further evaluation or taking of vital

signs and left.

288. The next day, February 6, Shick was evaluated by UPP

podiatrist Patrick Burns, D.P.M., with complaints of a hole in his

left ankle, causing him problems with running and walking, ... and

requesting prescriptions for Lisinopril, Simvastatin and home

oxygen.

289. Shick also advised Dr. Burns that he had undiagnosed

diabetes, recurrent transient ischemic attacks, a possible

cerebrovascular accident, possible chronic obstructive pulmonary

disease, high cholesterol, vascular disease, peripheral arterial

disease, nausea, puss on his abdomen (which was not there),

migraines, fluid in his ears, coughing with blood in his sputum,

diarrhea and change in the texture of his stools. ...

291. Based upon previous x-rays, Dr. Burns confirmed the

existence of an osteocondrolesion of the left talus in Shick's ankle,

explained that Shick’s vascular supply was good and the testing

he requested was inappropriate, refused Shick’s requests for

prescription medications or home oxygen, and referred him back

to his PCP.

292. ... [O]n February 8, Shick returned to see Dr. Abrams with

complaints of diabetes and demanding Glucotrol.

293. Dr. Abrams explained that his recent lab results did not

confirm Shick’s suspicion of diabetes and asked if he would
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consider a referral to a psychiatrist, at which point Shick became

angry and left the office.

294. On that same date, Shick sent Dr. Ganesh a letter advising

the doctor to be very careful this February.

295. The next day, February 9, Shick returned to be seen by Dr.

Kirby, demanding testing.

296. Dr. Kirby’s impression was that Shick was acutely psychotic,

delusional, but not threatening, the patient refused psychological

evaluation or medications, and will monitor for commitment.

297. Dr. Kirby determined [sic] to speak with Shadyside Family’s

director, UPP family practitioner Gregory Gallick, D.O.

298. Dr. Gallick spoke with Philip Phelps [(“Phelps”)], Defendant

UPMC’s Director of Behavioral Science curriculum, about

involuntary mental health evaluation and treatment commitment,

with [] Phelps advising that Shick was not a current candidate.

299. Later that day, Shick called Shadyside Family and reported

to the nurse that he went to pick up prescriptions from the

pharmacy that Dr. Kirby had ordered but none were there; Dr.

Kirby documented that he did not order new prescriptions, the

patient is acutely psychotic and delusional, and he tried to call

Shick but received no answer.

300. The next day, Friday, February 10, Shick appeared at

Shadyside Family to have blood drawn for testing, and

inappropriately brandished a baseball bat in a threatening

manner, causing the nurse to be upset. ...

303. Dr. Weiner advised [resolve’s Jeffery Mcfadden

(“McFadden”)] that Shick had come into Shadyside Family that

morning, banged a baseball bat on the counter, waved it around

in a threatening manner, had been increasingly psychotic and

intimidating in recent visits, believed he could control the

electrolytes in his body, has various nonexistent diseases, and

that UPMC security was called and removed Shick from the

premises. ...
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304. [] McFadden dispatched a mobile team from resolve to pick

up Shick and take him to [WPIC] for a mental health wellness

check and possible commitment. ...

307. The mobile team met with Shick and attempted to assess

him, but he refused, obtaining the assessor’s name, advising that

they were not welcome and shut the door to his apartment. ...

321. [On February 17, 2012, a]t 11:35 a.m., Dr. Weiner called

resolve and spoke with clinician Nedra Williams, asking to have

involuntary commitment papers faxed to him to accomplish the

involuntary commitment of Shick.

322. The clinician informed Dr. Weiner that Western Psych does

not fax involuntary commitment papers, and suggested that Dr.

Weiner go to Western Psych to fill out the forms.

323. At 12:51 p.m., one of the Shadyside Family staff members

called and spoke with resolve clinician Amanda Dunmire,

requesting information on the involuntary commitment process,

and how a doctor completes an involuntary commitment form,

which information was provided. ...

329. Two days later, on February 20, Shick was evaluated by UPP

orthopedic foot & ankle surgeon Victor Prisk, M.D. [(“Dr. Prisk”),]

with a similar history to the one given to Dr. Burns on February 6,

but adding an additional stroke that morning. ...

331. Shick admitted to depression but denied any other

psychiatric problems, and wrote the word “green” on the

psychiatric intake sheet.

332. Dr. Prisk recognized that Shick clearly had uncontrolled

schizophrenia upon examination and review of his medical

records, and really needed psychiatric care.

333. Dr. Prisk made an effort to contact personnel he referred to

as “the case managers” for psychiatric help, who he documented

were unable to come. ...

335. On that same day, February 20, at 3:55 p.m. Dr. Kirby called,

on an emergent basis, and spoke with resolve clinician Valerie

Krieger, seeking assistance to have Shick involuntarily committed. ...
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341. Dr. Kirby did not attempt to or file a commitment petition the

next day or at anytime thereafter. ...

350. One week after he had failed to file the commitment papers,

on Tuesday, February 28, Dr. Kirby sent Shick a letter on behalf

of Shadyside Family notifying him that the practice would no

longer provide medical care to him effective thirty days from that

date.

351. A week later, on March 7, Shick called for and received

emergency care at his residence for his complaints of shortness of

breath, vomiting blood[,] and parasites in his intestines and eyes.

352. Shick was taken to UPMC Presbyterian Hospital's emergency

department, where he repeated that history, demanded pain

medication, refused to discuss his medications with the examining

physicians, and left.

353. The next day, March 8, 2012, Shick went to Western Psych.

354. He brought with him loaded Makarov and Beretta 9mm

semiautomatic handguns and extra ammunition he had purchased

a year previously in New Mexico.

355. In the unguarded Western Psych lobby, he shot and injured

[Kathryn] at the unprotected receptionist’s desk, and shot several

other people, killing one of them, before he was himself shot and

killed by an armed Pitt police officer stationed nearby, but not in

or assigned to Western Psych, who responded to reports of the

incident.

356. As the direct result of the bullets Shick fired at and into

[Kathryn], she suffered physical injuries in the nature of gunshot

wounds to the left chest and abdomen, including entry wounds

there and exit wounds from her back, and related internal injuries

to her muscles, ligaments, nerves and internal organs, and

complications including pneumothorax and respiratory failure.

357. As the direct result of her receipt of appropriate treatment

for her bullet wounds, including intubation and exploratory

surgery, it was necessary for [Kathryn] to undergo significant

emergency and long term initial and subsequent hospitalizations,
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surgeries and other medical procedures, nursing care and

treatment.

358. [Kathryn] also suffers from severe post-traumatic stress

disorder as the direct result of the shooting.

Second Amended Complaint, 9/16/13, at ¶¶ 30-358; Third Amended

Complaint, 2/25/14, at ¶¶ 28-29, 238, 245. On June 6, 2012, the Leights filed a Complaint against Phillip L. Clark,

Administrator of the Estate of Shick. Thereafter, the Leights filed an Amended

Complaint, adding UPP, UPMC, Pitt, and Susan as defendants. After the filing

of Preliminary Objections by UPP, UPMC, Pitt, the Leights filed a Second

Amended Complaint. In the Second Amended Complaint, the Leights alleged,

inter alia, negligence claims against Pitt and UPP. On October 7, 2013, UPMC,

UPP and Pitt filed Preliminary Objections to the Second Amended Complaint, arguing, inter alia, that there was no duty to warn or protect Kathryn from

Shick and that there was no duty owed to Kathryn under the MHPA. The

Leights filed Preliminary Objections to the Preliminary Objections filed by

UPMC, UPP and Pitt, arguing that UPP acted with gross negligence under the

MHPA in its treatment decision regarding Shick. The Leights also filed a Third

Amended Complaint, adopting most of the Second Amended Complaint, and

adding, inter alia, that the physicians who interacted with Shick were agents

of UPP, UPMC, and Pitt, and vicarious liability claims against Pitt and UPMC.

On May 27, 2014, following a hearing, the trial court entered an Order

sustaining in part and overruling in part the Preliminary Objections filed by
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UPP and UPMC.3 Relevantly, the trial court dismissed the MHPA claims, finding

that the MHPA does not apply to voluntary outpatient treatment.4 The Leights

filed a Motion for Clarification/Correction and Certification, seeking to clarify

Pitt’s omission from the May 27, 2014 Order, and seeking a certification to

immediately appeal the May 27, 2014 Order.5 On April 2, 2015, the trial court

amended its May 27, 2014 Order, dismissing all claims, except for the

premises liability claims, against Pitt. The trial court also denied the Motion

for Certification.

Thereafter, the parties conducted discovery regarding the ownership

and control of the security measures at WPIC. On December 15, 2017, the

Leights filed a Motion for Leave to Discontinue in Part, seeking to discontinue

____________________________________________

3

In this Order, the trial court dismissed all claims against UPP and all claims,

except those related to premises liability, against UPMC. The trial court

erroneously excluded Pitt from the Order. Further, in the Order, the trial court

granted the Preliminary Objections filed by Susan, and dismissed the Leights’

claims regarding Susan’s negligent exercise of control over Shick.

4 We note that while the Second and Third Amended Complaints appear to

raise common law negligence claims against UPP and Pitt, the Leights focused

their entire argument on whether the MHPA imposes a duty upon UPP and Pitt.

See, e.g., Trial Court Opinion, 5/27/14, at 21 (stating that the Leights “are

not contending that common law tort law recognizes any cause of action by

persons injured as a result of the failure of the physicians to begin the

commitment process.”); N.T., 12/5/13, at 5 (in response from a question from

the court asking whether the liability is based upon statute or some other

duty, the Leights’ attorney stated that they were proceeding “[s]olely on

statute, ... the [MHPA].”).

5

In the interim, the trial court approved a joint tortfeasor agreement between

all of the deceased and injured parties and Shick’s estate and its liability

insurer.
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the remaining claims in the case to allow an appeal of the dismissal of the

MHPA claims. The trial court granted the Motion and dismissed the remaining

claims against Pitt and UPMC. The Leights filed a timely Notice of Appeal.

On appeal, the Leights raise the following question for our review:

Where the Complaint alleged that:

a. treating primary care physicians observed and determined that

their paranoid schizophrenic psychotic patient was severely

mentally disabled, in need of immediate treatment, and an

imminent danger to others;

b. the physicians decided their patient must undergo the

involuntary emergency examination and treatment process

under Section 302 of the [MHPA];

c. the physicians contacted the facility where such examinations

and treatment occurred within the County to discover the steps

necessary to cause the process to occur;

d. the physicians affirmatively decided to initiate the process in

regard to the dangerous patient and communicated their intent

to do so to the treatment facility’s staff, but then grossly

negligently failed or refused to do so; and,

e. the patient soon thereafter engaged in a shooting spree in the

lobby of the examination and treatment facility, causing severe

injuries to [Kathryn], the facility’s receptionist;

did the lower court err as a matter of law by sustaining preliminary

objections of the physicians’ employers/principals, erroneously

deciding that the physicians’ decisions to initiate involuntary

examination and treatment proceedings, followed by their grossly

negligent decisions to fail or refuse to do so, did not constitute

participation in decisions that a severely mentally disabled person

in need of immediate treatment be examined or treated under

Section 7114 of the Act?

Brief for Appellants at 3-5.
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[O]ur standard of review of an order of the trial court

overruling or granting preliminary objections is to determine

whether the trial court committed an error of law. When

considering the appropriateness of a ruling on preliminary

objections, the appellate court must apply the same standard as

the trial court.

Preliminary objections in the nature of a demurrer test the

legal sufficiency of the complaint. When considering preliminary

objections, all material facts set forth in the challenged pleadings

are admitted as true, as well as all inferences reasonably

deducible therefrom. Preliminary objections which seek the

dismissal of a cause of action should be sustained only in cases in

which it is clear and free from doubt that the pleader will be unable

to prove facts legally sufficient to establish the right to relief. If

any doubt exists as to whether a demurrer should be sustained, it

should be resolved in favor of overruling the preliminary

objections. Shafer Elec. & Const. v. Mantia, 67 A.3d 8, 10–11 (Pa. Super. 2013)

(citation omitted).

We will address the Leights’ claims together as they all relate to whether

they have a viable cause of action under the MHPA against Pitt and UPP. The

Leights contend that the trial court erred in concluding that the physicians who

provided voluntary outpatient medical care were not liable under the MHPA as

a matter of law. Brief for Appellants at 32, 34-35; see also id. at 38-40

(asserting that the trial court failed to examine the pleadings in a light most

favorable to the Leights). The Leights argue that the trial court erred in

“finding that the absence of mention of voluntary outpatient treatment in the

[MHPA’s] scope language [under section 7103] immunized physicians

providing voluntary outpatient medical treatment from their grossly negligent

involuntary examination decisions.” Id. at 33; see also id. (claiming that
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there is no ambiguity in section 7114, “which imposes [the] duty and potential

liability upon any physician participating in a determination that a person be

involuntarily examined for potential commitment.”). The Leights argue that

the trial court’s interpretation of the MHPA is flawed, as a determination that

an involuntary commitment examination is necessary is involuntary, not

voluntary, treatment. Id. at 35. The Leights assert that the pleadings in this

case aver that the physicians were “grossly negligent” in determining that

Shick be involuntarily examined for potential commitment and treatment, but

failing to follow through to accomplish the evaluation. Id. at 31, 33, 35, 39- 41; see also id. at 40 (stating that section 7302 of the MHPA authorizes

physicians treating mentally ill persons to be involuntarily examined through

four different methods). The Leights argue that physicians may be held liable

for the consequences of these actions under section 7114. Id. at 35.

The Leights further claim that the trial court erred in “attempting to graft

the [s]ection 7103 scope language onto the [s]ection 7114 language

establishing liability for grossly negligent participation in involuntary

examination determinations[.]” Id. at 36-37. The Leights argue that under

section 7114, physicians are given the same duty of care as peace officers.

Id. at 37. The Leights contend that a peace officer’s potential liability would

only result from “gross negligence” in determining whether a mentally ill

person be involuntarily examined. Id. The Leights assert that under the trial

court’s interpretation of sections 7103 and 7114, a peace officer could never
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be liable for such a decision because the officer would not handle a voluntary

inpatient or involuntary outpatient or inpatient person. Id. at 37. The Leights

thus argue that the physician, like the peace officer, may be held liable under

the MHPA for their determination of whether a mentally ill person be

involuntarily examined. Id. at 37-38.

Because the issue of whether the Leights may bring an action against

Pitt and UPP pursuant to the MHPA is “one of statutory construction—a pure

question of law—our standard of review is de novo and our scope of review is

plenary.” Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC, 146 A.3d 232, 238 (Pa. 2016). In interpreting a statute, this Court endeavors to ascertain and

effectuate the intention of the General Assembly. Because,

generally, the best indicator of legislative intent is

the plain language of the statute, we begin our inquiry by

considering the words of the statute. In doing so,

we construe words and phrases according to their common and

approved usage or, as appropriate, their peculiar and appropriate

or statutorily provided meanings. Finally, we bear in mind that

words and phrases must be viewed not in isolation, but

with reference to the context in which they appear.

Id. (citations, ellipses, and quotation marks omitted).

“[T]he General Assembly enacted the MHPA to provide procedures and

treatment for the mentally ill in this Commonwealth.” Martin v. Holy Spirit

Hosp., 154 A.3d 359, 362 (Pa. Super. 2017); see also 50 P.S. § 7102 (stating

that “[i]t is the policy of the Commonwealth of Pennsylvania to seek to assure

the availability of adequate treatment to persons who are mentally ill, and it

is the purpose of this act to establish procedures whereby this policy can be
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effected.”). “This act establishes rights and procedures for all involuntary

treatment of mentally ill persons, whether inpatient or outpatient, and for all

voluntary inpatient treatment of mentally ill persons.” 50 P.S. § 7103;6 see

also id. (stating that “[i]npatient treatment” shall include all treatment that

requires full or part-time residence in a facility.”).

The immunity provision of the MHPA provides as follows:

In the absence of willful misconduct or gross negligence, a county

administrator, a director of a facility, a physician, a peace officer

or any other authorized person who participates in a decision that

a person be examined or treated under this act, or that a person

be discharged, or placed under partial hospitalization, outpatient

care or leave of absence, 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 involuntary emergency examination and

treatment, shall not be civilly or criminally liable for such decision

or for any of its consequences.

Id. § 7114(a); see also Farago v. Sacred Heart Gen. Hosp., 562 A.2d 300,

304 (Pa. 1989) (stating that the clear intent for enacting Section 7114 of the

MHPA was “to provide limited protection from civil and criminal liability to

mental health personnel and their employers in rendering treatment in this

unscientific and inexact field.”). Section 7114(a) has been interpreted “to

include not only treatment decisions, but also, care and other services that

____________________________________________

6 The General Assembly recently amended various sections of the MHPA,

including section 7103, to be effective on April 22, 2019. See MENTALLY ILL

PERSONS—TREATMENT, 2018 Pa. Legis. Serv. Act 2018-106 (H.B. 1233). However, the cited language of section 7103 remains the same in the

amended version of section 7103.
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supplement treatment in order to promote the recovery of the patient from

mental illness.” Martin, 154 A.3d at 363 (citation and quotation marks

omitted). While section 7114(a) provides immunity to parties treating persons

under the MHPA, it also provides for an affirmative cause of action upon a

showing of gross negligence or willful misconduct. See Goryeb v. Com.,

Dep’t of Pub. Welfare, 575 A.2d 545, 548–49 (Pa. 1990).

Here, a plain reading of the statutes demonstrates that while a plaintiff

may maintain a cause of action where the parties treating or examining a

patient under the MHPA have acted with gross negligence, the MHPA only

applies to all involuntary inpatient or outpatient treatment, and voluntary

inpatient treatment of mentally ill persons. See 50 P.S. § 7103; see also

McNamara by McNamara v. Schleifer Ambulance Serv., Inc., 556 A.2d

448, 449 (Pa. Super. 1989) (stating that the MHPA “establishes rights and

procedures for all involuntary treatment and voluntary inpatient treatment of

mentally ill persons.”) (emphasis omitted). Thus, the immunity and cause of

action provisions under section 7114 of the MHPA do not apply to voluntary

outpatient treatment. See McKenna v. Mooney, 565 A.2d 495, 496 (Pa.

Super. 1989) (holding that section 7103 clearly states that the MHPA does not

apply to voluntary outpatient treatment); see also DeJesus v. U.S. Dep’t of

Veterans Affairs, 479 F.3d 271, 284 (3d Cir. 2007) (noting that “Pennsylvania courts have held that the MHPA does not apply to voluntary

outpatient treatment.”).
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In the instant case, the Leights do not allege that UPP or Pitt was

negligent in its examination or treatment of Shick while he was an involuntary

inpatient or outpatient, or a voluntary inpatient at any facility. Further, the

Leights do not raise any allegations regarding a decision to discharge Shick to

outpatient care. Instead, the Leights attempt to expand the scope of the

MHPA by asserting that treatment decisions on a voluntary outpatient basis

established a duty on UPP and Pitt to protect Kathryn from Shick. However,

because the “physicians never started the process for seeking an emergency

examination ..., no decision was ever made as to whether Shick should be

involuntarily examined and receive involuntary treatment.” Trial Court

Opinion, 5/27/14, at 23; see also 50 P.S. § 7302(a) (noting that an

application for examination may be undertaken upon the certification of a

physician stating the need for such examination; or upon a warrant issued by

the county administrator authorizing such examination; or without a warrant

upon application by a physician or other authorized person who has personally

observed conduct showing the need for such examination.”). In point of fact,

while Shick was evaluated by WPIC staff, the Leights do not allege that there

was treatment or examination under the dictates of the MHPA. While we

sympathize with the Leights’ argument, this Court cannot conclude that the

mere thought or consideration of initiating an involuntary examination during

voluntary outpatient treatment falls within the explicit scope of the MHPA.

See Fogg v. Paoli Mem’l Hosp., 686 A.2d 1355, 1358 (Pa. Super. 1996)
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(noting that while a patient presented himself for treatment at an emergency

room, he was not examined or treated by anyone in the field of mental health,

and no decision regarding his treatment was made, the hospital could not

“avail itself of the immunity protections of [section 7114 of] the MHPA.”); see

also Herman v. Cty. of York, 482 F. Supp. 2d 554, 567–68 (M.D. Pa. 2007)

(concluding that the MHPA was inapplicable where no proceedings for an

involuntary examination or treatment were instituted and the patient was not

receiving any voluntary inpatient treatment). Thus, the Leights cannot sustain

a cause of action under the MHPA, and the trial court properly granted the

Preliminary Objections filed by UPP and Pitt.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/2018