Hammerquist, P. v. Banka, V. ( 2017 )

J-A31015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA HAMMERQUIST AND SUSAN IN THE SUPERIOR COURT OF
PRESSLER, CO-EXECUTRICES OF THE PENNSYLVANIA
ESTATE OF DOLORES R. SHIELDS,
Appellants
v.
VIDYA S. BANKA. M.D., SAHIL S. BANKA,
M.D., VIDYA S. BANKA, M.D. &
ASSOCIATES, P.C., PENNSYLVANIA
HOSPITAL, PENN MEDICINE, D/B/A
PENNSYLVANIA HOSPITAL, THE
UNIVERSITY OF PENNSYLVANIA HEALTH
SYSTEM AND THE TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA,
Appellees No. 945 EDA 2016
Appeal from the Order Entered March 2, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03550 March Term, 2015
PATRICIA HAMMERQUIST AND SUSAN IN THE SUPERIOR COURT OF
PRESSLER, CO-EXECUTRICES OF THE PENNSYLVANIA
ESTATE OF DOLORES R. SHIELDS,
Appellants
v.
VIDYA S. BANKA. M.D., SAHIL S. BANKA,
M.D., VIDYA S. BANKA, M.D. &
ASSOCIATES, P.C., PENNSYLVANIA
HOSPITAL, PENN MEDICINE, D/B/A
PENNSYLVANIA HOSPITAL, THE
UNIVERSITY OF PENNSYLVANIA HEALTH
SYSTEM AND THE TRUSTEES OF THE
UNIVERSITY OF PENNSYLVANIA,
Appellees No. 947 EDA 2016
J-A31015-16
Appeal from the Order Entered March 2, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03550 March Term, 2015
BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 31, 2017
Patricia Hammerquist and Susan Pressler (“Appellants”), co-
executrices of the Estate of Delores R. Shields (“Ms. Shields”), appeal from
the two orders entered on March 2, 2016, that granted (1) the motion for
judgment on the pleadings filed by Vidya S. Banka et al., and (2) the motion
for judgment on the pleadings filed by Pennsylvania Hospital et al.
(collectively “Appellees”). We affirm.
This case began as a result of a medical procedure in which coronary
artery stents were inserted in two of Ms. Shields’ arteries on August 16,
2007. On April 2, 2013, Ms. Shields received a letter from Pennsylvania
Hospital informing her that she may have undergone the surgery
unnecessarily. After an independent review of her catheterization records,
Ms. Shields was informed that the stent procedures had not been necessary.
On March 27, 2015, Ms. Shields filed a writ of summons against various
doctors and medical facilities. Then, on May 11, 2015, she filed a complaint,
including claims for “battery (lack of informed consent), common law fraud,
corporate liability, negligence, recklessness and intentional misconduct, and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
-2-
J-A31015-16
[violations of the] Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”) [73 Pa.C.S. § 201-1 et al].” Trial Court Opinion (TCO), 6/28/16,
at 1. In November of 2015, each group of Appellees filed a motion for
judgment on the pleadings. The trial court entered the two separate orders
from which these appeals emanate, granting the motions and dismissing Ms.
Shields’ complaint with prejudice. The basis for the dismissals rested on the
court’s determination that the complaint was barred by the statute of repose
contained in the Medical Care Availability and Reduction of Error Act
(“MCARE Act”), 40 Pa.C.S. §§ 1303.101 – 1303.910.1 Appellants2 appealed
to this Court and submitted a concise statement of errors complained of on
appeal in response to the trial court’s order. See Pa.R.A.P. 1925(b). A trial
court opinion was filed in response to Appellants’ claims of error.
Appellants’ brief filed with this Court contains five issues for our
review:
1. Did the trial court improperly apply the MCARE Act’s statute
of repose to [Appellants’] claims in this matter which are based
on a criminal and intentional battery purely performed for
pecuniary gain and the cardiac stent placement surgery
performed on Ms. Shields was not, by definition, a “healthcare
service” because the procedure was a sham, not medically
____________________________________________
1
See 40 Pa.C.S. § 1303.513(a) (stating, “[e]xcept as provided in subsection
(b) and (c), no cause of action asserting a medical professional liability claim
may be commenced after seven years from the date of the alleged tort or
breach of contract”).
2
Ms. Shields passed away on December 3, 2015, and the two executrices of
her estate were substituted as plaintiffs in this matter.
-3-
J-A31015-16
necessary and thus would not provide any benefit to [] Ms.
Shields’ health?
2. Did the trial court improperly apply the MCARE Act’s statute
of repose to [Appellants’] claims in this matter that were based
on intentional, criminal and fraudulent conduct by [Appellees]
performed only for pecuniary gain, despite the legislature’s
intent in that the MCARE Act only apply [sic] to medical
malpractice claims?
3. Did the trial court improperly apply the MCARE Act’s statute
of repose to [Appellants’] claims for fraud and violations of the
Pennsylvania UTPCPL when the MCARE Act does not specifically
abrogate those causes of action?
4. Did the trial court improperly apply the MCARE Act’s statute
of repose to [Appellants’] claims for violations of the
Pennsylvania UTPCPL when such claims are statutory causes of
action that cannot be defined as torts or breaches of contract?
5. Did the trial court improperly apply the MCARE Act’s statute
of repose to [Appellants’] claims in this matter when [Appellants]
pled continuing fraud and concealment and there was evidence
in the record that there were new and continuing acts of fraud
and concealment within the seven-year statute of repose that
could serve as a basis for [Appellants’] claims?
Appellants’ brief at 3-5.
In addressing Appellants’ issues, we are guided by our well-settled
standard of review for judgment on the pleadings.
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on
the pleadings is similar to a demurrer. It may be entered when
there are no disputed issues of fact and the moving party is
entitled to judgment as a matter of law.
Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
-4-
J-A31015-16
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is
filed, considering only those facts which were specifically
admitted.
We will affirm the grant of such a motion only when the moving
party's right to succeed is certain and the case is so free from
doubt that the trial would clearly be a fruitless exercise.
Century Surety Co. v. Essington Auto Center, LLC, 140 A.3d 46, 51 (Pa.
Super. 2016) (quoting Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d
177, 185 (Pa. Super. 2013) (citation omitted)).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the thorough, well-written opinion authored by the
Honorable Denis P. Cohen of the Court of Common Pleas of Philadelphia
County, dated June 28, 2016. We conclude that Judge Cohen’s
comprehensive opinion properly disposes of the issues presented by
Appellants on appeal and we discern no abuse of discretion or error of law.
Accordingly, we adopt Judge Cohen’s opinion as our own and, on the basis
stated therein, we affirm the orders appealed from that granted Appellees’
motions for judgment on the pleadings and dismissed Appellants’ complaint
with prejudice.
Orders affirmed.
-5-
J-A31015-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
-6-
Circulated 01/04/2017 11:25 AM
TN THE COURT OF COMMON PLEAS
FIRST ,JUDICIAL DISTRICT OF PENNSYLVANIA
PA TRICIA HAMMER QUIST and COURT OF COMMON PLEAS -
SUSAN PRESSLER PHILADELPHIA COUNTY
APPELLANTS 150303550
v.
VJDY AS. BANKA. M.D., et al. 945 EDA 2016; 947 EDA 2016
APPELLEE
OPINION
A. PROCEDURAL HISTORY
On March 27, 2015, plaintiff, Dolores R. Shields, filed a writ of summons and instituted
this litigation against Vidya Banka, M.D., Sahil S. Banka, M.D., Vidya S. Banks, M.D. &
Associates, PC.. Pennsylvania Hospital, Penn Medicine d/b/a Pennsylvania Hospital. The
University of Pennsylvania Health System, The Trustees of the University of Pennsylvania, Robert
Singer, M.D., and Associated Cardiovascular Consultants, P.A. On May 11, 2015, plaintiff filed
a complaint with claims for battery (lack of informed consent), common law fraud, corporate
liability, negligence, recklessness and intentional misconduct, and Unfair Trade Practices and
Consumer Protection Law ("UTPCPL"). On November 11, 2015, Defendants Vidya S. Banka,
M.D., Sahil S. Banks, M.D., and Vidya S. Banka, M.D. and Associates, P.C. filed a motion for
judgment on the pleadings. Defendants Pennsylvania Hospital, Penn Medicine d/b/a Pennsylvania
Hospital, the University of Pennsylvania Health System, and the Trustees of the University of
Pennsylvania ("Penn Defendants") also filed a motion for judgment on the pleadings on November
Shields Vs Banka Etal-OPFLO
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b)
II I I II 1111111111111111
06/29/20W030355000149
16, 2015. On March 2, 2016, the Honorable Denis P. Cohen. Judge of the Court of Common Pleas,
issued two orders granting the motions for judgment on the pleadings and dismissing plaintiffs
complaint as barred pursuant to the statute of repose of the Medical Care Availability and
Reduction of Error Act (''MCA RE"). On March 17, 2016, a praecipe to substitute party was filed
indicating that the plaintiff, Dolores Shields, had passed away on December 3, 2015 and that the
co-executrices of Dolores Shields' estate, Patricia Hamrnerquist and Susan Pressler, would be
substituted as plaintiffs. The plaintiffs filed a timely notice of appeal on March 21, 2016. On
March 24, 2016, this Court issued an Order requiring plaintiffs lo serve this Court with an itemized
Statement of Errors Complained ofon Appeal by April 14, 2016. Cohen Order, 3/24116. On April
12, 20 I 6, plaintiffs filed a 'Statement of Errors Complained of on Appeal alleging the following
errors:
I. The Court improperly applied the MCARE Act's statute of repose to the Plaintiffs'
claims for violations of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law ("UTPCPL") and common law fraud because the MCARE Act did
not specifically express a clear intent to abrogate those causes of action;
2. The Court improperly failed to consider the dates of Defendants' treatment
subsequent to the initial unnecessary stent placement surgery as continuing fraud
which gave rise to causes of action within the seven (7) year time period of the
MCARE Act's statute of repose;
3. The Court improperly applied the MCARE Act's statute of repose to Plaintiffs'
claim for violations of the UTPCPL because such violations are neither torts nor
breaches of contracts, as required to be a "medical professional liability claim"
under the MCARE Act;
2
4. The Court improperly applied the MCARE Act's statute of repose to the Plaintiffs'
claims in this action because Plaintiffs' claims are not "medical professional
liability claims" under the MCARE Act;
5. The Court improperly applied the MCARE Act's statute of repose to Plaintiffs'
claims against the Penn Defendants because the claims against the Penn Defendants
are based on their failure to properly supervise and monitor their employees to
protect consumers and the general pub! ic from fraud committed by their employees,
which continued well into the time period within which claims are allowed under
the MC ARE Act's statute of repose.
B. FACTUAL HISTORY
According to the Complaint, on August 16, 2007, Dr. Vidya Banka or Dr. Shail Banka
performed a coronary artery stent procedures on Dolores Shields' left anterior descending artery
and her mid circumflex artery. Complaint~ 31. On April 2, 20 I 3, Ms. Shields received a letter
from Pennsylvania Hospital indicating that they had discovered that a portion of Dr. Vidya Banka's
patients had undergone placements of coronary artery stents that may have not been necessary
according to test results. Id. ~ 34. In June 2013, Ms. Shields had her cardiac catheterization study
performed by Dr. Banka evaluated by other doctors. Id. ~ 39. The doctors told Ms. Shields that
the catheterization findings of Dr. Vidya Banka were false and that her two stent procedures were
unnecessary. Id. ~ 40. Plaintiffs' complaint includes claims for battery (lack of informed consent),
common law fraud, corporate liability, negligence, recklessness and intentional misconduct. and
Unfair Trade Practices and Consumer Protection Law ("UTPCPL").
C. I>lSCUSSJON
1. All of plaintiffs' claims are barred by MCARE's statute of repose .
.,.)
"·-·--·-·-·····-······- ·-··· -·-·-----~---~------------------------
This Court properly determined that MCAR.E's statute of repose eliminates all of the
plaintiffs' claims. The MCARE statute of repose states "no cause of action asserting a medical
professional liability claim may be commenced after seven years from the date of the alleged tort
or breach of contract." 40 Pa. S. § 1303.S 13. Unlike statute of limitations. there is no tolling of
the statute of repose because of the discovery rule or fraudulent concealment. See Osborne v.
Lewis, 59 A.3d 1109, 1116 (Pa. Super. 2012) (holding that fraudulent concealment does not apply
to ivlCARE's statute of repose); cf Altoona Area School Dist. v. Campbell, 618 A.2d 1129, 1135
(Pa. Commw, 1992) ( explaining that because a statute includes statute oflimitations and not statute
of repose, the claim is subject to discovery rule). Therefore, although Ms. Shields unfortunately
did not learn that the stent placements may have been unnecessary until she received the letter
from Pennsylvania Hospital in 2013, the applicable date for the statute of repose is August 16,
2007 when Dr. Banka performed the stent placements. To file within the seven year period
required by the statute of repose, the plaintiffs needed to have commenced the litigation by August
16, 2014. Plaintiffs, however, began the instant action on March 27, 2015.
Plaintiffs argue, however, that their claims are not "medical professional liability claims"
under MCARE. MCARE defines "medical professional liability claims" as "[ajny claim seeking
the recovery of damages or loss from a health care provider arising out of any tort or breach of
contract causing injury or death resulting from the furnishing of health care services which were
or should have been provided." 40 Pa. S. § 1303.103. All of plaintiffs' claims for damages are
against health care providers related to the "furnishing of health care services" as the claims relate
to a stent placement. The broad language of the definition of medical professional liability claim
referring to "any tort or breach of contract" clearly eliminates plaintiffs' cause of action for battery,
4
-------··---------------------------------
common law fraud, corporate liability, negligence, and recklessness and intentional misconduct as
these claims are all torts.1
However, less clear is whether plaintiffs' claim under the UTPCPL falls within MCARE's
definition of "medical professional liability claim." Plaintiffs claim that defendants violated the
UTPCPL by "[kjnowingly misrepresenting services ... are needed if they are not needed," and
"[ e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of
misunderstanding." Complaint'[ 95. Plaintiffs argue that because the UTPCPL claim is a statutory
claim, it is not a tort or breach of contract claim and does not fall within MCARE's definition of
"medical professional liability claim." Defendants argue that although UTPCPL is a statutory
remedy, plaintiffs' UTPCPL claim is nearly identical to plaintiffs' fraud claim and is considered a
"tort" for purposes of MCARE's statute of repose.
Whether the UTPCPL claim fits within the definition of "medical professional liability
claim" is ambiguous. The UTPCPL claim is still a claim seeking the recovery of damages from a
health care provider causing injury resulting from the furnishing of health care services. See 40
Pa. § 1303. I 03. Furthermore, something can be a statutory claim and still be a tort or breach of
contract claim as well. In Ash v, Continental Insurance Company, the Pennsylvania Supreme
Court held that the bad-faith insurance statute, 42 Pa. C.S. § 8371, is a statutorily-created tort
remedy. 932 A.2d 877, 885 (Pa. 2007). The Superior Court held in Gabriel v. 0 'Hara that the
UTPCPL "encompasses an array of practices which might be analogized to passing off,
I Plaintiffs claim that MCARE's statute of repose should not be applied to the common law fraud claim because the
MCA RE Act did not specifically express a clear intent to abrogate this cause of action. However, "the best
indication of the General Assembly's intent is the plain language of the statute. 'When the words of a stature are
clear and free from nil ambiguity, they are presumed to be the best indication of legislative intent."' Allstate life Ins.
Co.\'. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012) (quoting Chanceford Aviatio11v, Chanceford Twp. Bd. of
Supervisors, 923 A.2d I 099, 1104 (Pa. 2007)). Because courts interpret common law fraud as a tort and the fraud
claim relates to the furnishing of medical services, the plain language of the statute indicates that plaintiffs' common
law fraud claim is a "medical professional liability claim" that is subject to MCARE's statute of repose.
5
misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of
contract, and breach of warranty." 534 A.2d 488, 494 (Pa. Super. 1987). Several courts have
analyzed whether claims under the UTPCPL are closer to torts or breach of contract claims. See
e.g., Knight v. Springfield Hyundai, 81 A.3d 940, 951 (Pa. Super. 2013) (determining that gist of
action for UTPCPL claim was in tort and not breach of contract); Gabriel, 534 A.2d at 393-394
(discussing cases where Courts analyzed whether claim under the UTPCPL should be subject to
the tort or breach of contract statute of limitations). Thus, although it may be possible to view the
"UTPCPL" claim as arising of a tort, the statute is ambiguous as to whether a UTPCPL claim
should be subject to the statute of repose.
Because the statute is ambiguous as to whether the MCA RE statute of repose precludes a
claim under the UTPCPL, the intention of the General Assembly can be ascertained by considering
"(I) The occasion and necessity for the statute; (2) The circumstances under which it was enacted;
(3) The mischief to be remedied; (4) The object to be attained; (5) The former law, if any, including
other statutes upon the same or similar subjects; (6) The consequences of a particular
interpretation; (7) The contemporaneous legislative history; and (8) Legislative and administrative
interpretations of such statute." 1 Pa. C.S. § 1921; see Meyer v. C,nty. Coll. of Beaver a«, 93
A.3d 806, 814 (Pa. 2014). The Pennsylvania General Assembly passed MCARE in 2002 to
address concerns about the rising cost of medical professional liability insurance. See Osborne,
59 A.3d at 1112 ("[T]he MCARE Act was a response to a widely publicized perceived health care
crisis in Pennsylvania, which included an alleged fear on the part of medical practitioners that
malpractice insurance was becoming unaffordable resulting in some medical doctors opting to
leave practice in the Commonwealth.") (quoting Wexler v. Hecht, 928 A.2d 973, 986 (Pa. 2007)
(Castille, J., dissenting)). This is supported by the declarations of policy of MCARE which state
6
.. . . ····- .. ----·· ----------------------~-----
"medical professional liability insurance has to be obtainable at an affordable and reasonable cost
in every geographic region of this Commonwealth." 40 Pa. S. § 1303. l 02(3). As the Pennsylvania
Superior Court has previously noted, "[o ]ne way in which the MCA RE Act addressed the crisis of
the rising cost of medical professional liability insurance was to institute a seven-year statute of
repose on claims that, prior to the act, had no statute of repose at all." Osborne, 59 A.3d at 1112.
Because the purpose of MCARE's statute of repose was to limit claims against medical providers
to make medical professional liability insurance affordable, this Court should resolve this
ambiguity about whether the UTPCPL claim falls within the statue of repose in favor of limiting
the plaintiffs' cause of action.
In making its decision, this Court was also guided by the opinions of the Honorable
Frederica Massiah-Jackson of the Court of Common Pleas, First Judicial District who addressed
nearly identical facts in other cases involving allegations of unnecessary stent placements by Dr.
Vidya Banka. See Yudacufski v. Com., Dep't of Transp., 454 A.2d 923, 926 (Pa. 1982) ("It is well-
settled that, absent the most compelling circumstances, a judge should follow the decision of a
colleague on the same court when based on the same set of facts."); cf Castle Pre-Cast Superior
Walls of Delaware, inc. v. Strauss-Hammer, 610 A.2d 503, 505 (Pa. Super. 1992) ("trial court
decision: from a different county, provided no binding precedent for the Delaware County Court
in the instant case."). Judge Massiah-Jackson granted several motions dismissing claims against
Dr. Vidya Banka pursuant to MCARE's statute of repose and attached opinions explaining her
reasoning. See Deni v. Banka, No. 131200327, "Exhibit A,, to Massiah-Jackson Order (C.P.
Philadelphia, October 22, 2015); Gallagher v, Banko, No. 131203573, "Exhibit A" to Massiah-
Jackson Order (C.P. Philadelphia, October 22, 2015); Mathai v. Banka, No. I 31102814, "Exhibit
A" to Massiah-Jackson Order (C.P. Philadelphia, October 22, 2015); Wolfberg 11. Banka, No.
7
13 _I 203574, "Exhibit A" to Massiah-Jackson Order (C.P. Philadelphia, October 22. 20 l 5). 2 This
Court did not see compelling circumstances that necessitated issuing an order that conflicted with
the orders of a colleague on the same court when the cases involved the same issue. See
Yudacufski, 454 A.2d at 926.
2. Continuing treatment
The plaintiffs claim that the Court improperly failed to consider the dates of Ms. Shields'
treatment-with the defendants subsequent to the initial unnecessary stent placement surgery as
continuing fraud which gave rise to causes of action within the seven (7) year time period of the·
MCARE Act's statute of repose. The MCARE statute of repose states "no cause of action
asserting a medical professional liability claim may be commenced after seven years from the
date of the alleged tort or breach of contract." 40 Pa. S. § 1303 .513. The complaint makes clear
that the date of the alleged tort is August 16, 2007 when Ms. Shields underwent the stent
procedure. Complaint t[ 31. In fact, there is no reference in the complaint to any subsequent
treatment by the defendants after the August 16, 2007 stent procedure. The plaintiffs did not
raise the issue of subsequent treatment within the seven year period oft he statute of repose until
Plaintiffs' Sur-Reply in Opposition to the Motion for Judgment on the Pleadings. Tn deciding the
motion for judgment on the pleadings, a court may only consider_ the pleadings and any
documents properly attached to them. See Integrated Project Servs. v. HMS Interiors. Inc., 931
A.2d 724, 732 (Pa. Super. 2007). This Court could therefore not consider the documents
attached to Plaintiff's Sur-Reply indicating that Ms. Shields had doctor visits to Dr. Sahil Banka
and Dr. Vidya Banka within the seven year period. Instead, this Court correctly decided that the
2 However, this Court notes that Judge Massiah-Jackson did not address the issue of a UTPCPL claim in her
opinions.
8
complaint as written did not include any references to treatment by defendants after August 16,
2007.
3. The Court properly applied the statute of repose to the Penn Defendants.
For the first time, the plaintiffs argue in their Statement of Errors that MCARE's statute of
repose should not apply to the Penn Defendants because the Penn Defendants' failure to protect
the public from fraud occurred during the seven years before the filing of the complaint. First, this
claim is waived because the plaintiffs did not raise this issue until after the notice of appeal. See
Pa. R.A.P. 302(a) (''Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal."). Furthermore, while the Penn Defendants may have been negligent in·
properly supervising and monitoring their employees within the seven years period before the
initiation of this litigation, the failure of the Penn Defendants to properly supervise and monitor
Dr. Vidya Banka after Ms. Shields' stent placement could not have caused Ms. Shields' injury,
the unnecessary slent placement. As causation is a necessary element in plaintiffs' common law
fraud, corporate liability, and UTPCPL claims against the Penn Defendants, plaintiffs' claims
against the Penn Defendants must fail. See 73 Pa. S. § 201 ~9.2 ("Any person who purchases or
leases goods or services primarily for personal, family or household purposes and thereby suffers
any ascertainable loss of money or property, real or personal, as a result ~(the use or employment
by any person of a method, act or practice declared unlawful by section 31 of this act, may bring
a private action"); Kit v. Mitchell, 771 A.2d 814, 819 (Pa. Super. 2001) ("To succeed in a fraud
case, a plaintiff must establish the following elements . . "the resulting injury was proximately
caused by the reliance."); Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa. Super. 2001)
("In order to present a primia facie case of corporate negligence, appellees were required to
introduce evidence of the following: . . . that the conduct was a substantial factor in bringing
9
about the harm.''). Plaintiffs cannot bring a claim for the Penn Defendants' "failure to protect
consumers and the general public" but only for Penn Defendant's failure to protect Ms. Shields
from an unnecessary procedure.
D. CONCLUSION
For the foregoing reasons, the decision of this Court should be affirmed.
BY THE COURT:
Q&fM LIU
DENIS P. COHEN, J.
Dated: June 28, 2016
10