HomeMy WebLinkAbout2021-05574
DEWEY BROWNIN THE COURT OF COMMON PLEAS
PlaintiffOF
CUMBERLAND COUNTY,
PENNSYLVANIA
v.CIVIL ACTION
THE GARDENS at CAMP HILL,NO.2021-05574CIVIL TERM
Defendant
IN RE: DEFENDNTSPRELIMINARY OBJECTIONS TO PLAINTIFFS
COMPLAINT
BEFORE SMITH,HYAMS, and SIBERT JJ.
ORDER OF COURT
th
AND NOW, this 4day of May,2022,upon consideration of Defendants
preliminary objections to Plaintiffscomplaint,anyBriefs filed,followingoralargument
onApril22, 2022, and for the reasons stated in the accompanying opinion, it is
ORDERED and DECREED that the Defendantspreliminary objections based upon
Plaintiffs failureto comply with the relevant certificate of merit rules is SUSTAINED
and Plaintiffscomplaint is DISMISSED with prejudice.
BY THECOURT:
Carrie E. Hyams, Judge
Joseph Dixon, Esq.,126 State Street,Harrisburg, PA 17101,josephdixonlaw@gmail.com
Karen E. Minehan, Esq.,100 Corporate Center Drive,Camp Hill, PA 17011,
keminehan@mdwcg.com
DEWEY BROWN IN THE COURT OF COMMON PLEAS
Plaintiff OF
CUMBERLAND COUNTY,
PENNSYLVANIA
v. CIVIL ACTION
THE GARDENS at CAMP HILL, NO. 2021-05574 CIVIL TERM
Defendant
IN RE: DEFENDNTS PRELIMINARY OBJECTIONS TO PLAINTIFFS
COMPLAINT
BEFORE SMITH, HYAMS, and SIBERT JJ.
OPINION and ORDER OF COURT
HYAMS, J., May 4, 2022.
For disposition in this tort action, in which Defendants employee allegedly fell
directly onto Plaintiffs post-surgical, injured left knee while attempting to take his blood
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pressure, are preliminary objections filed by Defendant to Plaintiffs complaint. Oral
argument was held in the matter on April 22, 2022.
For the reasons stated in this opinion, Defendants preliminary objections are granted
and Plaintiffs Complaint is dismissed with prejudice.
STATEMENT OF FACTS
This civil action was commenced by the filing of a Writ of Summons that was
3
issued on July 20, 2020. On October 18, 2020, after the Defendant had obtained a Rule
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to File Complaint, the Plaintiff filed his Complaint. The facts alleged in Plaintiffs
complaint, filed on October 18, 2020, may be summarized as follows:
Plaintiff is Dewey Brown, an adult individual residing in Harrisburg, Pennsylvania
and Defendant is a nursing rehabilitation facility center, which is located in Camp Hill,
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Cumberland County, Pennsylvania. Plaintiff avers he underwent knee surgery by a non-
1 See Complaint, filed October 18, 2020 (hereinafter Plaintiffs Complaint).
2 Preliminary Objections of Defendant, to Plaintiffs Complaint, filed March 3, 2022 (hereinafter Defendants
Preliminary Objections).
3 Writ of Summons, issued July 20, 2020.
4 Complaint, filed October 18, 2020.
5 Plaintiffs Complaint, ¶¶2, 14.
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defendant physician prior to arriving at Defendants nursing rehabilitation facility center.
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Plaintiff claims he was sent to Defendants facility for rehabilitation services.Plaintiff
further alleges that while he was at Defendants facility, the Plaintiffs injured knee was
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injured again by the actions and conduct of the staff at the facility. The allegations include
that, while Plaintiff was in the Defendants facility on July 24, 2019, an employee attempted
to take Plaintiffs blood pressure while leaning over Plaintiffs wheelchair and walker at the
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side of the bed and fell directly into Plaintiffs post-surgical, injured left knee. While
Plaintiff makes a negligence claim and argued at oral argument that the claim sounds in
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general negligence, the specific allegations clearly sound in professional medical
malpractice/professional liability claim. More specifically, Plaintiff alleges that Defendants
\[sic\] employees, agents, and/or assigns were negligent in his technique to reach the
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Plaintiffs arm, with the blood pressure cuff, to take Mr. Browns blood pressure. In
addition, Plaintiff alleges the employee/individual utilized by the Defendant, to perform the
blood pressure check, was not qualified to perform the task and that \[t\]he Defendant failed
to follow the appropriate standard of care for a nursing rehabilitation facility to have
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qualified personnel performing designated tasks, such as taking blood pressure. Finally,
Plaintiff alleges that ll is the sole cause of the Plaintifffor a second surgery,
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and additional treatments, to restore his left knee.
On January 18, 2022, Defendant filed a Rule 1042.6 Notice of Intention to Enter
Judgement of Non Pros for Failure to File a Certificate of Merit if no Certificate of Merit
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was filed after thirty (30) days of the issuance of the Notice. On February 11, 2022,
Plaintiff filed a document entitled, Notice of Intention to Proceed without Medical
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Expert. Plaintiffs Notice stated as follows:
The case involves negligent conduct regarding actions and activities of the
6 Plaintiffs Complaint, ¶14.
7 Plaintiffs Complaint, ¶5.
8 Plaintiffs Complaint, ¶6.
9 Plaintiffs Complaint, ¶¶7,10.
10 Plaintiffs Writ of Summons Civil Cover Sheet identified premises liability as the type of claim.
11 Plaintiffs Complaint, ¶8.
12 Plaintiffs Complaint, ¶¶13-14.
13 Plaintiffs Complaint, ¶10.
14 Defendants Notice of Default Judgment pursuant to 1042.6, filed January 18, 2022.
15 Plaintiffs Notice of Intention to Proceed without Medical Expert, filed February 11, 2022.
Defendant and their employees; the nature of which is \[sic\] matters of
common knowledge, ordinary understanding and experience. In addition, the
Defendants violations of Federal and State Regulations do not have to be
proven by medical experts when involving matters of common knowledge,
ordinary understanding and experience.
Defendants preliminary objections were filed on March 3, 2022. Defendant filed
three separate preliminary objections and as the first preliminary objection in the nature of a
demurrer for failure to state a claim upon which relief may be granted is being sustained, the
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remaining two preliminary objections are rendered moot.
STATEMENT OF LAW
Preliminary objection in the nature of demurrer. The principles pertaining to a review
of a preliminary objection in the nature of a demurrer are well-settled:
For the purpose of testing the legal sufficiency of the challenged
pleading a preliminary objection in the nature of a demurrer admits as true
all well pleaded material, relevant facts and every inference deducible
from those facts. . . .
Since the sustaining of a demurrer results in a denial of the
pleader's claim as a dismissal of his suit, a preliminary
objection in the nature of a demurrer should be sustained only in cases
that clearly and without a doubt fail to state a claim for which relief may
be granted. . . .
If the facts as pleaded state a claim for which relief may be granted under
any theory of law then there is sufficient doubt to require the preliminary
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objection in the nature of a demurrer to be rejected. . . .
Certificate of Merit. Pennsylvania Rule of Civil Procedure 1042.3 provides that
for actions alleging a licensed professional deviated from an acceptable professional
standard, the plaintiff must file, within 60 days from the filing of the complaint, a
certificate of merit that:
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment, practice or work
that is the subject of the complaint, fell outside acceptable professional
16 Defendants preliminary objections in the alternative raised lack of specificity for failing to identify the alleged
agent whose care was at issue and also alleged scandalous and impertinent matter at paragraph 9 of the Complaint.
See Defendants preliminary objections filed on March 3, 2022.
17 Allegheny County v. The Commonwealth of Pennsylvania, 490 A.2d 402 (Pa. 1985)
standards and that such conduct was a cause in bringing about the
harm, or (Note omitted)
(2) the claim that the defendant deviated from an acceptable
professional standard is based solely on allegations that other licensed
professionals for whom this defendant is responsible deviated from an
acceptable professional standard, or (Note omitted).
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
Note: In the event that the attorney certifies under subdivision (a)(3) that
an expert is unnecessary for prosecution of the claim, in the absence of
exceptional circumstances the attorney is bound by the certification and,
subsequently, the trial court shall preclude the plaintiff from presenting
testimony by an expert on the questions of standard of care and causation.
Plaintiff is bound by his certification that expert testimony is not needed to prove
not only standard of care issues, but also medical causation. The trial court must
preclude Plaintiff from presenting expert testimony on the following allegations in
Plaintiffs Complaint: whether Defendants staff persons fall onto Plaintiffs knee while
attempting to take his blood pressure is the sole cause of the Plaintiff a second
surgery, and additional treatments, to restore his left knee. Even when reading the
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Complaint in a light most favorable to the Plaintiff, an expert opinion would be required
to establish that \[t\]he Defendant failed to follow the appropriate standard of care for a
nursing rehabilitation facility to have qualified personnel performing designated tasks,
such as taking blood pressureand that ll is the sole cause of the Plaintiff
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for a second surgery, and additional treatments, to restore his left knee.
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Plaintiffs assertion that the doctrine of res ipsa loquitur applies is misplaced.
18 HightowerWarren v. Silk, 698 A.2d 52, 54 (Pa. 1997)(holding that with all but the most self-evident
medical malpractice actions there is also the added requirement that the plaintiff must provide a medical expert
who will testify as to the elements of duty, breach, and causation.)(emphasis added).
19 Plaintiff, ¶¶10, 13-14.
20 The proper procedure for Plaintiff to challenge whether a certificate of merit was needed was to file a motion
pursuant to Pa.R.C.P. 1042.6(c): Upon the filing of a notice under subdivision (a) of this rule, a plaintiff may file a
motion seeking a determination by the court as to the necessity of filing a certificate of merit. The filing of the
motion tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. If
it is determined that a certificate of merit is required, the plaintiff must file the certificate within twenty days of
entry of the court order on the docket or the original time period, whichever is later. See Pa.R.C.P. No. 1042.6(c).
While the medicalprocedure at issueinvolved taking Plaintiffs blood pressure is not an
overly complicated medical procedure, it would not be within a jurys common
knowledge that the fall into Plaintiffs knee caused Plaintiff tohave to undergo a second
knee surgeryevenif arguably the method for taking blood pressure at bedside is common
knowledge.
APPLICATION OF LAW TO FACTS
Given the standard for review of preliminary objections in the nature of a demurrer,
including the rule that a demurrer admits as true all well pleaded material,relevant facts and
every inference deducible from those facts, and without expressing any opinion as to the
veracity of Plaintiffsallegations, the court isconstrained to sustainDefendants preliminary
objection in the nature of a demurrer.Plaintiffs failure to file a certificate of merit withhis
claims sounding in medical malpractice that will require expert testimony on standard of care
as well as medical causationresults in hisinabilityto establish a prima facie case at trial.
Accordingly, thefollowing order will be entered:
ORDER OF COURT
th
AND NOW, this 4day of May,2022,upon consideration of Defendants
preliminary objections to Plaintiffscomplaint,anyBriefs filed,followingoralargument
onApril22, 2022, and for the reasons stated in the accompanying opinion, it is
ORDERED and DECREED that the Defendantspreliminary objections based upon
Plaintiffs failureto comply with the relevant certificate of merit rules is SUSTAINED
and Plaintiffscomplaint is DISMISSED with prejudice.
BY THECOURT:
Carrie E. Hyams, Judge
Joseph Dixon, Esq., 126 State Street, Harrisburg, PA 17101, josephdixonlaw@gmail.com
Karen E. Minehan, Esq., 100 Corporate Center Drive, Camp Hill, PA 17011,
keminehan@mdwcg.com