Moore, W. v. Penn Highlands Healthcare ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM M. MOORE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENN HIGHLANDS HEALTHCARE, : No. 26 WDA 2020
D/B/A PENN HIGHLANDS DUBOIS, :
UNIVERSITY ORTHOPEDICS CENTER :
Appeal from the Order Entered December 19, 2019
In the Court of Common Pleas of Clearfield County Civil Division at
No(s): 105 C.D. 2017
BEFORE: DUBOW, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED: March 16, 2021
Appellant, William M. Moore, appeals from the December 19, 2019 Order
entered in the Clearfield County Court of Common Pleas granting Penn
Highlands Healthcare d/b/a Penn Highlands Dubois’s Motion for Summary
Judgment and dismissing Appellant’s claims with prejudice in this medical and
corporate negligence action. Appellant also challenges the August 20, 2019
Order denying his Motion to Compel Additional Discovery as untimely. After
careful review, we affirm.
The relevant facts and procedural history are as follows. On January
28, 2015, Appellant underwent knee replacement surgery performed by Dr.
Paul R. Senisba, a physician employed by defendant University Orthopedics
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* Retired Senior Judge assigned to the Superior Court.
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Center (“UOC”). Appellant’s surgery took place at Penn Highlands-Dubois
(“Penn”) hospital. Dr. Sensiba performed the surgery without complication.
Dr. Sensiba’s physician’s assistant, Jonathan Burns, PA-C, discharged
Appellant from Penn the following day with instructions to keep the surgical
wound clean and dry. At the time of discharge, PA Burns noted the absence
of any signs of infection at the surgical and wound drainage sites.
On February 11, 2015, Appellant attended a routine medical
appointment at UOC for removal of his surgical staples. At that appointment,
Appellant reported having bumped his knee. PA Burns drained non-infected
fluid from the surgical site and Appellant received additional staples at the
edges of his surgical wound. Appellant also attended a follow-up visit at UOC
two days later, on February 13, 2015. Appellant did not present at that visit
with symptoms of a surgical site infection.
More than two weeks after his surgery, on February 14, 2015, Appellant
fell in his kitchen and his surgical wound opened. Appellant waited for two
days from the time of his fall, however, to seek medical attention for his open
wound. On February 16, 2015, a Penn doctor examined Appellant, diagnosed
Appellant with an infection in his knee, and admitted Appellant for in-patient
treatment. Fluid from Appellant’s surgical wound cultured positive for
“Clostridium perfringens,” a rare type of surgical infection originating in a
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patient’s own bowel, and not from an environmental source.1 Doctors
discharged Appellant from Penn on February 19, 2015.
Following Appellant’s February 16, 2015 hospitalization, on March 25,
2015, Appellant received a letter from Kathy Lemmon, the then-director of
Penn’s Infection Prevention and Control. The letter stated, in relevant part
that “I am writing to inform you that a Hospital Associated Infection 2 was
identified during routine review of your medical records from your recent
hospitalization. You were diagnosed and treated for a surgical site infection
following knee surgery on 1/28/15.” The letter did not indicate that Appellant
contracted the infection during his January 28, 2015 surgery.
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1Appellant recovered from this infection, but subsequently developed, in June
2015, an infection from a different kind of bacteria, “Pseudomonas
aeruginosa.” Appellant continued to receive treatment for his knee at Penn
until approximately 2017.
2 The parties use the terms “Hospital Associated Infection” and “Health care-
associated infection” interchangeably. “Health care-associated infection” is a
legal term of art defined in the Medical Care Availability and Reduction of Error
(“MCARE”) Act (the “Act”), 40 P.S. § 1303.402, and refers to an infection that,
inter alia, “occurs in a patient in a health care setting.” Relevantly, the Act
requires a hospital to notify a patient any time the hospital identifies a surgical
site infection, regardless of the cause of the infection. Notification under the
Act does not constitute an acknowledgement of admission of liability. Id. at
§ 1303.308(b). In addition, documents created or prepared for the purposes
of compliance with the Act “shall not be discoverable or admissible as evidence
in any civil or administrative action or proceeding. Id. at § 1303.311.
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On March 7, 2017, Appellant filed a Complaint against Penn and UOC3
raising medical negligence and corporate negligence claims. On June 6, 2017,
Appellant filed an Amended Complaint. Essentially, Appellant alleged that
Penn failed in its duty to prevent Appellant from acquiring an infection in his
knee. Amended Complaint, 6/6/17, at ¶ 37.
The case proceeded through discovery. On September 25, 2018, the
trial court held a case management conference. At the conference, Appellant
requested that the court schedule the case for trial. Ultimately, the trial court
instructed all counsel to make reasonable efforts to conclude discovery prior
to March 7, 2019, at which time the court intended to hold a second case
management conference.
On November 29, 2018, Appellant produced expert reports from Dr.
Peter Jenei, an internal medicine physician, and Timothy F. Hawkins, a board-
certified Healthcare Safety Professional and Hospital Administration Executive.
These experts reviewed Appellant’s medical records and Penn’s statement that
Appellant had contracted a Hospital Associated Infection. Neither report
provided any factual analysis of the procedure performed by Dr. Sensiba or of
Penn’s policies and procedures.
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3 Appellant and UOC subsequently entered into a settlement agreement.
Thus, on September 16, 2019, the trial court entered an Order “excus[ing
UOC] from any further active participation in this litigation.” Order, 9/16/19.
UOC is not a party to this appeal.
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On March 7, 2019, the trial court held a second case management
conference after which it entered an amended case management Order.
Relevantly, this Order set July 15, 2019 as the deadline for all discovery
including depositions, and September 15, 2019 as the deadline for filing any
motion for summary judgment.
On June 14, 2019, just one month before the discovery deadline,
Appellant served Penn with a “Second Set of Interrogatories” in which he
sought discovery of Penn’s operating room policies and procedures pertaining
to surgical skin preparation prior to total joint replacement procedures,
microbiology records from the hospital’s lab that performed infection cultures
in order to identify whether any other surgical patients had developed
infections, and other discovery pertaining to infection control policies. Penn
objected to this set of interrogatories as overly broad, vague, and
burdensome. It also asserted that various statutory privileges protected its
policies and procedures from discovery.
On June 24, 2019, Appellant informed Penn by letter that he sought to
depose seven of Penn’s employees within 30 days. Appellant did not identify
the Penn employees by name or specific job title. Penn objected to these
depositions the next day.
On July 10, 2019, Appellant filed a motion to amend the case
management order. The trial court granted the motion and, relevantly,
extended the discovery deadline by sixteen days to July 31, 2019.
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On July 24, 2019, Appellant filed a Motion to Compel Attendance [at]
Depositions and to Suspend the Second Case Management Order. On August
2, 2019, Appellant filed a Motion to Compel Answers to Plaintiff’s
Interrogatories and Request for Production of Documents and to Suspend the
Second Case Management Order. Following a hearing, on August 20, 2019,
the trial court denied the motions as untimely, also finding that Appellant’s
discovery requests were overly broad, vague, and unreasonably burdensome.
At the close of discovery, Penn filed a Motion for Summary Judgment
asserting that Appellant had failed to present a genuine issue of material fact
as to the duty Penn owed to Appellant, or causation of injury and damages.
The trial court held a hearing on Penn’s Motion for Summary Judgment.
On December 8, 2019, the court granted Penn’s Motion and dismissed
Appellant’s claims with prejudice.
This appeal followed. Appellant has complied with the trial court’s Order
to file a Pa.R.A.P. 1925(b) Statement, and the trial court filed a supplement
to its December 8, 2019 Opinion and Order in lieu of filing a Rule 1925(a)
Opinion.
Appellant raises the following three issues on appeal:
1. Did the trial court err in granting summary judgment
concerning [Penn’s] corporate negligence where genuine issues of
material fact existed?
2. Did the trial court err in granting summary judgment where it
erroneously found that [Appellant’s] experts were non-physicians
where it was clear that Dr. Peter Jenai is a medical doctor?
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3. Did the trial court err in denying [Appellant’s] Motion to Compel
Answers to Plaintiff’s Interrogatories and Requests for Production
of Documents and Motion to Compel Attendance of [sic]
Deposition, which precluded discovery of necessary facts
regarding [Penn’s] policies and procedures for infection control?
Appellant’s Brief at 8
Summary Judgment Standard of Review
Appellant’s first two issues challenge the trial court’s Order granting
summary judgment in favor of Penn. Our Supreme Court has clarified our role
as the appellate court as follows:
On appellate review [ ], an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But[,] the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo. This
means we need not defer to the determinations made by the lower
tribunals. To the extent that this Court must resolve a question
of law, we shall review the grant of summary judgment in the
context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations
and quotation omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law.” Id.(citation and quotation omitted); see also Pa.R.C.P. 1035.2(1). “When
considering a motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most favorable to the
non-moving party.” Summers, supra at 1159 (citation omitted). “In so
doing, the trial court must resolve all doubts as to the existence of a genuine
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issue of material fact against the moving party, and, thus, may only grant
summary judgment where the right to such judgment is clear and free from
all doubt.” Id. (citation and internal quotation marks omitted).
“Where the non-moving party bears the burden of proof on an issue, he
may not merely rely on his pleadings or answers in order to survive summary
judgment.” Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super. 2015),
(citation and quotation omitted). “Further, failure of a non-moving party to
adduce sufficient evidence on an issue essential to his case and on which he
bears the burden of proof establishes the entitlement of the moving party to
judgment as a matter of law.” Id. (citation and internal quotation marks
omitted). “If there is evidence that would allow a fact-finder to render a
verdict in favor of the non-moving party, then summary judgment should be
denied.” Id. (citation and quotation omitted).
Doctrine of Corporate Negligence
The doctrine of corporate negligence, under which a hospital can be held
directly liable for negligence, creates a non-delegable duty on a hospital to
uphold a proper standard of care to patients. Thompson v. Nason Hosp.,
591 A.2d 703, 707 (Pa. 1991). “A cause of action for corporate negligence
arises from the policies, actions[,] or inaction of the institution itself rather
than the specific acts of individual hospital employees. Brodowski v. Ryave,
885 A.2d 1045, 1056 (Pa. Super. 2005) (citation and quotation marks
omitted).
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Our law will impose liability if the hospital fails to ensure a patient’s
safety and well-being at the hospital. Thompson, 591 A.2d 707. A hospital
is directly liable under the doctrine of corporate negligence if it fails to uphold
any one of the following four duties:
1. a duty to use reasonable care in the maintenance of safe and
adequate facilities and equipment;
2. a duty to select and retain only competent physicians;
3. a duty to oversee all persons who practice medicine within its
walls as to patient care; and
4. a duty to formulate, adopt and enforce adequate rules and
policies to ensure quality care for the patients.
Id. (citations omitted)
Furthermore, to present a prima facie case of corporate negligence, a
plaintiff must demonstrate all of the following elements:
1. the hospital acted in deviation from the standard of care;
2. the hospital had actual or constructive notice of the defects or
procedures which created the harm; and
3. that the conduct was a substantial factor in bringing about the
harm.
Rauch v. Mike-Mayer, 783 A.2d 815, 827 (Pa. Super. 2001) (citation
omitted). Because the doctrine of corporate negligence contemplates a “kind
of systemic negligence” on the part of the hospital, evidence of actual or
constructive notice is critical. Kennedy v. Butler Mem. Hosp., 901 A.2d
1042, 1045 (Pa. Super. 2006).
“Unless a hospital’s negligence is obvious, an expert witness is required
to establish two of the three prongs: that the hospital deviated from the
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standard of care and that the deviation was a substantial factor in bringing
about the harm.” Rauch, 783 A.2d at 827 (citation omitted). The expert
testimony required to establish a prima facie breach of a corporate duty
requires more than simply alleging that an agent or employee erred; the focus
of the expert testimony must be on what a reasonable hospital under similar
circumstances should have done. Welsh v. Bulger, 698 A.2d 581, 585-87
(Pa. Super. 1997).
Issues 1 and 2: Summary Judgment
In his first two issues, Appellant asserts that the trial court erred in
granting summary judgment in favor of Penn. Appellant’s Brief at 20. First,
Appellant disputes the trial court’s finding that he failed to present genuine
issues of material facts as to duty, causation, and damages. Id. at 21-33.
He argues that the purported inadequacy and insufficient specificity of his
experts’ reports were not grounds for the entry of summary judgment. Id. at
at 25 n.4, 28. Appellant claims instead that Penn should have filed a motion
requesting that Appellant’s experts file supplemental reports to address any
deficiencies and should have pursued additional discovery, including deposing
Appellant’s expert witnesses. Id. at 25 n.4, 28-29. Appellant also asserts
that the entry of summary judgment was improper because Penn did not
provide any evidence within its Motion for Summary Judgment that it followed
an infection control policy during Appellant’s surgery, or that its infection
control protocols were adequate. Id. at 31-32.
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In his second issue, Appellant claims that the trial court erred in granting
summary judgment in part based on its error that Appellant’s expert, Dr.
Jenai, was not a medical doctor. Id. at 33-35.
The court issued an Order and Opinion in which it explained the basis
for its decision as follows:
Expert testimony must indicate in part what a reasonable hospital
under similar circumstances would have done. Additionally, it
must be shown that the hospital knew or should have known of
the problem and failed to take action. Lastly, the kind of causal
link between the hospital[’]s action or inaction and the alleged
injuries.
The [c]ourt is hard-pressed to find any evidence in the record that
suggests a genuine issue of material fact as to any of the prongs
outlined above as to corporate negligence on the part of [Penn].
Both experts, who are non-physicians, merely provide vague[,]
conclusory statements with no supporting facts whatsoever.
Without more, [Appellant] fails to establish a prima facie case for
negligence and this [c]ourt believes summary judgment is in fact
proper
Trial Ct. Opinion, 12/8/19, at 5.
In a subsequent Opinion, the court conceded that it incorrectly identified
Appellant’s expert Dr. Jenai as not being a medical doctor. Trial Ct. Op.,
6/11/20. Notwithstanding, the court concluded that “the fact that Dr. Peter
Jenai is a medical doctor would not have altered the [c]ourt’s rationale in
granting [s]ummary [j]udgment in favor of [Penn].” Id.
Following our review of the record, we agree with the trial court that
Appellant failed to adduce evidence sufficient to demonstrate the existence of
any genuine issues of material fact. In particular, Appellant did not produce
any factual evidence that Dr. Sensiba or Penn did anything inappropriate
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during Appellant’s surgery. It is undisputed that Dr. Sensiba discharged
Appellant from Penn the day after his surgery without an infection and it was
more than two weeks later, after Appellant had fallen in his kitchen, that
Appellant’s wound culture revealed an infected surgical wound.
Appellant produced two expert reports. Neither of Appellant’s experts
offered substantive analysis of the particulars of the surgery performed on
Appellant by Dr. Sensiba, Penn’s infection and sterilization protocols, how
those protocols fell below the standard of care, or how Penn’s actions or
inactions were the cause of any harm to Appellant. The record is similarly
devoid of any evidence that Penn had notice that its protocols allegedly fell
below the standard of care.
We also agree that the trial court’s misstatement pertaining to Dr.
Jenei’s credentials would not have changed the outcome of Penn’s Motion for
Summary Judgment. Whether Dr. Jenei was a doctor, as explained above, his
expert report did not provide evidence establishing a genuine issue of material
fact as to the elements of Appellant’s corporate negligence claim.
Appellant’s arguments—that the court erred in granting summary
judgment because Penn did not: (1) conduct additional discovery; (2) depose
Appellant’s experts; (3) request the court to order Appellant’s experts to
supplement their reports; or (4) provide any evidence within its Motion for
Summary Judgment that it followed an adequate infection control policy
during Appellant’s surgery—lack merit. Simply, it was Appellant’s burden, not
Penn’s, to produce evidence from which the court could find the existence of
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a genuine issue of material fact for consideration by a jury or other fact-finder
was on Appellant and not on Penn. Appellant failed to meet this burden.
In sum, Appellant failed to adduce sufficient evidence from which a fact-
finder could conclude that Penn acted in deviation from the standard of care,
that Penn had actual or constructive notice of the alleged defects or
procedures that created any harm, and that Penn’s conduct was a substantial
factor in bringing about that harm. The record simply establishes that
Appellant underwent knee surgery on January 28, 2015, and sometime
thereafter he developed an infection; anything beyond that is speculative at
best. Accordingly, Penn was entitled to judgment as a matter of law and the
trial court properly granted summary judgment in Penn’s favor.
Issue 3: Discovery Dispute
In his final issue, Appellant claims that the trial court abused its
discretion in denying his Motion to Compel Answers to Interrogatories and
Requests for Production of Documents and his Motion to Compel deposition
attendance. Appellant’s Brief at 35. He argues that the court’s ruling
prejudiced him because it precluded from him discovering the very evidence
of corporate negligence that the court found lacking when it granted Penn’s
Motion for Summary Judgment. Id. at 35-36. He assails the trial court’s
findings that his discovery requests were untimely, unduly burdensome,
vague, and overly broad. Id. at 36. Appellant emphasizes that he served
Penn with the disputed interrogatories within the July 31, 2019 discovery
deadline and that he filed his Motion to Compel only two days after the
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deadline. Id. at 36-37. With respect to the depositions for which he provided
notice on June 24, 2019, Appellant notes that he filed his Motion to Compel
within the discovery deadline. Id. at 39.
We review lower court discovery orders for an abuse of discretion.
Lockley v. CSX Transp. Inc., 5 A.3d 383, 388 (Pa. Super. 2010). See also
PECO Energy Co. v. Insurance Co. of North America, 852 A.2d 1230,
1233 (Pa. Super. 2004) (“The trial court is responsible for overseeing
discovery between the parties and therefore it is within that court’s discretion
to determine the appropriate measure necessary to insure adequate and
prompt discovering of matters allowed by the Rules of Civil Procedure.”)
(citation, internal brackets, and quotation marks omitted)).
A Pennsylvania court must give parties reasonable time to complete
discovery before it will entertain any motion for summary judgment. Reeves
v. Middletown Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. 2004). A party
seeking discovery must do so in a timely manner. Id. Lower courts should
consider the basis for a party’s request to extend a discovery deadline;
declining to do so may be unreasonable where the circumstances support
extending the discovery deadline. Anthony Biddle Contractors, Inc. v.
Preet Allied Am. St. LP, 28 A.3d 916, 923 (Pa. Super. 2011) (citing Gerrow
v. John Royle & Sons, 813 A.2d 778, 783-84 (Pa. 2002) (OAJC).
This Court has long held that local courts have the power to formulate
their own rules of practice and procedure. Sanders v. Allegheny Hospital–
Parkview Div., 833 A.2d 179, 183 (Pa.Super.2003); Murphy v. Armstrong,
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622 A.2d 992 (Pa. Super. 1993). We have further recognized that multiple
delays “would disrupt the efficient and just administration of justice and would
send a blatant message that case management deadlines are meaningless.”
Kurian ex rel. Kurian v. Anisman, 851 A.2d 152, 162 (Pa. Super. 2004).
In support of his claim that the trial court abused its discretion, Appellant
has cited extensively to extra-jurisdictional and non-binding lower court
decisions, as well as to boilerplate case law outlining general discovery
precepts. Appellant’s Brief at 40-46. The singular precedential decision relied
upon by Appellant in support of his claim that the trial court abused its
discretion in precluding further discovery—Anthony Biddle Contractors,
Inc. v. Preet Allied Am. St. LP, 28 A.3d 916 (Pa. Super. 2011)—is
inapposite.
In Biddle, the plaintiff initiated his cause of action in 2009. On June
17, 2009, the trial court entered a case management order setting a discovery
deadline of April 5, 2010. Subsequently, on November 24, 2009, the plaintiff
joined two additional defendants. At the close of discovery, the plaintiff filed
a motion to extend the discovery deadline because the two additional
defendants had not answered the discovery sent to them. Despite this
procedural posture and that the court had, to date, not extended the discovery
deadline, the court denied the plaintiff’s request. This Court concluded that
the trial court abused its discretion in denying the extension request and
reversed the order of the trial court.
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Instantly, Appellant sought discovery of, inter alia, the infection control
policies and procedures used by Penn and to depose seven of Penn’s
employees. On August 16, 2019, the trial court held a hearing on Appellant’s
Motions to Compel and Suspend the Case Management Order at which
Appellant argued that his discovery requests were “very timely” and “well in
advance[] of the deadline[.]” N.T. Hr’g, 8/16/19, at 5.
The record belies this assertion. At the time Appellant requested this
discovery and filed his motions to compel, nearly two and a half years had
passed since he commenced the action. During those two and a half years,
both parties had conducted discovery and the trial court had granted Appellant
numerous extensions of the discovery deadline.
Moreover, the court had already scheduled trial for a date certain in
January 2020, set September 17, 2019 for jury selection, and established
September 15, 2019, as the deadline for filing motions for summary
judgment. The trial court is under no obligation to adjust its busy docket to
accommodate Appellant’s “11th hour fishing expedition”4 after Appellant had
had the opportunity to engage in discovery for nearly two and a half years.
Following our review, we do not discern any abuse of discretion on the
part of the trial court in denying Appellant’s request to compel discovery
responses and depositions at this late stage. The court considered the basis
for Appellant’s request to compel discovery responses and depositions and to
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4 N.T. Hr’g, 8/16/19, at 11-12.
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extend the discovery deadline as set forth in his Appellant’s Motions and as
argued at the hearing. The trial court decision to decline to grant those
Motions was reasonable in light of the procedural history of this case and, in
particular, the upcoming jury selection and trial dates. Accordingly, Appellant
is not entitled to relief on this claim.
Order affirmed.
Judge Murray joins the memorandum.
Judge Strassburger did not participate.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2021
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