Opinion
3198 EDA 2022 J-S36022-23
01-18-2024
STANLEY RODRIGUEZ Appellant v. ST. LUKE'S HOSPITAL-BETHLEHEM, ST. LUKE'S UNIVERSITY HEALTH NETWORK AND JIJI UTHUPPAN, PTA
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered November 14, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2021-C-1226
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM
NICHOLS, J.
Appellant Stanley Rodriquez appeals from the order granting summary judgment in favor of Appellees St. Luke's Hospital Bethlehem, St. Luke's University Health Network, and Jiji Uthuppan, PTA, in this professional negligence action. Upon careful review, we affirm.
On May 27, 2019, Appellant was involved in a motor vehicle accident and immediately transported to St. Luke's Hospital in Bethlehem. Appellant suffered multiple injuries, some of which necessitated emergency orthopedic surgery to repair his left femur and his right radius and right ulna. Consequently, Appellant was deemed a fall risk. However, he was evaluated and approved for in-patient physical therapy, and a session was scheduled for May 31, 2019.
The trial court summarized the circumstances of Appellant's transfer during the physical therapy session as follows:
[T]here were three persons in the [hospital] room during the physical therapy session; a light skinned male, an African-American wom[a]n, and a Spanish woman. [Appellant] described these individuals as "nurses" and referred to the person standing in front of him as "he." According to [Appellant], some or all three persons were helping him get out of the bed, holding him, but then "they let him go" and, when he tried to take a step, [Appellant] cracked a bone in his left ankle, but they grabbed him right away, preventing him from falling. [Appellant] testified that prior to taking a step, one person was holding him on his right shoulder, one person was holding him on his left shoulder, and one person stood in front of him.Trial Ct. Op., 11/10/22, at 4 (citations omitted).
On May 19, 2021, Appellant filed a civil complaint alleging claims of professional negligence surrounding the physical therapy session against Uthuppan, the physical therapist, St. Luke's Bethlehem Hospital and St. Luke's University Health Network, and John Does 1-50 and/or Jane Does 1-50, who were various unnamed medical staff personnel who provided medical care at the hospital. Specifically, Appellant's complaint set forth one count of negligence, one count of vicarious negligence, and one count of corporate negligence. Compl., 5/19/21, at ¶¶ 24-45. With his complaint, Appellant filed certificates of merit (COMs) pursuant to Pa.R.C.P. 1042.3(a)(3), which indicated that expert testimony from an appropriate licensed professional was unnecessary to establish his claims against the defendants.
On August 24, 2021, the defendants filed preliminary objections seeking to strike Appellant's vague allegations of negligence and agency, and to dismiss John Does 1-50 and Jane Does 1-50. Appellant failed to file a response, and the trial court entered an order sustaining the preliminary objections. Thereafter, the trial court issued a case management order setting forth various deadlines, requiring, among other things, discovery by April 1, 2022, expert reports by May 1, 2022, and motions for summary judgment by July 1, 2022.
On November 8, 2021, Appellees filed a motion to strike Appellant's COMs. Therein, Appellees argued that Appellant's claims concerning medical negligence required expert testimony and the defective COMs should be stricken and non pros entered. In the alternative, Appellees requested that, consistent with Appellant's COMs, Appellant be precluded from offering expert testimony at trial.
In his response, Appellant indicated that COMs were unnecessary. On May 9, 2022, the trial court issued an order precluding Appellant from offering expert testimony at trial regarding the standard of care and causation.
On July 1, 2022, Appellees filed a motion for summary judgment on the basis that without the support of expert evidence, Appellant would be unable to meet his burden of proof for professional liability claims on the standard of care and causation. Appellant filed a response, which maintained that expert testimony was not required. Nevertheless, after oral argument, the trial court issued an order granting Appellant's request for the extension of discovery deadlines and directed the parties to conduct depositions of Appellant and Appellee Uthuppan. Thereafter, the parties filed briefs. On November 10, 2022, the trial court entered its order and memorandum granting summary judgment in favor of Appellees. Appellant filed this timely appeal on December 12, 2022. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant needed to file his notice of appeal on or before Monday, December 12, 2022, because December 10, 2022, was a Saturday. See 1 Pa.C.S. § 1908 (stating that, for computations of time, whenever the last day of any such period shall fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from the computation).
Appellant presents the following issues for our review:
1. Did this trial court erred in dismissing all of the claims where clear questions of fact remained as to each [Appellee]?
2. Did this trial court erred in restricting the ability of Appellant to conduct meaningful discovery?
3. Did this trial court erred in precluding expert witness testimony for Appellant before any discovery had been completed and before the pleadings were closed?
4. Did this trial court err when it did not provide an opinion as to whether or not an expert opinion was required in its [May 9, 2022 o]rder?
5. Did this trial court err when it dismissed the matter to be determined by the jury when it was so simple that no expert testimony was required [or], in the alternative, if it deemed expert testimony necessary for prosecution, []Appellant should be able to amend its certificate of merit and provide expert testimony at trial as defendants' would not be prejudiced as that indicated in their pretrial memorandum that they had already intended to produce an expert at trial?Appellant's Brief at 7-8.
Appellant first argues that the trial court erred in granting Appellees' motion for summary judgment because there were questions of fact as to all elements of his claims. See id. at 13-20. He asserts that there was evidence in the medical records and deposition testimony that supported his claims of negligence. See id. at 13. Appellant also posits that "the facts of the instant case are so basic that a jury will not need to hear from any experts about why a medical professional should not have dropped or failed to prevent a patient from falling and causing serious injuries" and notes that because Appellant was a patient who had suffered extreme injuries, Appellees owed Appellant a duty of care not to inflict additional injuries. See id.
Regarding Uthuppan, Appellant claims that she breached her duty of care while managing the therapy session, particularly his transfer from his bed to a standing position. See id. at 18. He further asserts that Uthuppan breached her duty by failing to report Appellant's new injury, or to include it in his medical records. See id. Concerning the hospital's duty of care, Appellant alleges that the hospital failed to ensure proper medical review was adhered to by Uthuppan prior to the physical therapy session. See id. at 20. Appellant also claims that proper charting and documentation was not adhered to because the incident was not reported in Appellant's medical record. See id.
Appellees respond that Appellant cannot meet his burden of proof for medical and corporate negligence because his own testimony contradicts his pleadings. See Appellees' Brief at 26. Specifically, Appellees observe that Appellant's pleadings contend that he was dropped during physical therapy, but his deposition testimony indicates that his ankle snapped upon bearing weight, and he was caught before he could fall. Id. Appellees conclude that summary judgment was appropriate because it is "patently obvious that [Appellant] required expert support to opine not only that there was a breach of the standard of case in having [him] engage in physical therapy, but also that the taking of a single step could be the factual cause of [his] ankle fracture." Id. at 28.
We observe that, in reviewing matters of summary judgment, we are governed by the following well-established principles:
Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 60-61 (Pa. Super. 2006) (citation omitted).
Motions for summary judgment implicate the plaintiff's proof of the elements of his cause of action. Chenot, 895 A.2d at 61 (citation omitted). Summary judgment is proper "if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Pa.R.C.P. 1035.2(2). In other words, "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report," Pa.R.C.P. 1035.2(1), and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Chenot, 895 A.2d at 61.
When reviewing a grant of summary judgment, we are not bound by the trial court's conclusions of law, but may reach our own conclusions. Id. We will disturb the trial court's order only upon
an error of law or an abuse of discretion. "Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration." Chenot, 895 A.2d at 61 (citation omitted). Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law, exercises its discretion in a manner lacking reason, or does not follow legal procedure. Id. (citation omitted).
Where the discretion exercised by the trial court is challenged on appeal, the party bringing the challenge bears a heavy burden. It is not sufficient to persuade the appellate court that it might have reached a different conclusion if charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. Chenot, 895 A.2d at 61 (citation omitted). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused. Id. at 61-62 (citation omitted).Continental Cas. Co. v. Pro Machine, 916 A.2d 1111, 1115-1116 (Pa. Super. 2007).
Pa.R.C.P. 1035.2 governs motions for summary judgment and provides the following, in relevant part:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.Pa.R.C.P. 1035.2. The official note to Rule 1035.2 states, in pertinent part:
Note: Rule 1035.2 sets forth the general principle that a motion for summary judgment is based on an evidentiary record which entitles the moving party to judgment as a matter of law.
The evidentiary record may be one of two types. Under subdivision (1), the record shows that the material facts are undisputed and, therefore, there is no issue to be submitted to a jury.
Under subdivision (2), the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury. The motion in this instance is made by a party who does not have the burden of proof at trial and who does not have access to the evidence to make a record which affirmatively supports the motion. To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action or defense.
Only the pleadings between the parties to the motion for summary judgment must be closed prior to filing the motion.Pa.R.C.P. 1035.2, Note.
As our Supreme Court has explained, "[s]ummary judgment may be entered prior to the completion of discovery in matters where additional discovery would not aid in the establishment of any material fact. Thus, the question is whether additional discovery would have aided in the establishment of any material fact." Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938, 950-51 (Pa. 2001) (citation omitted). Further, we have recognized that "the party seeking discovery is under an obligation to seek discovery in a timely fashion." Anthony Biddle Contrs., Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 928 (Pa. Super. 2011) (citations omitted).
In addition, we have long stated that the court's function in summary judgment proceedings is not to determine the facts, but only to determine if a genuine issue of fact exists. Johnson v. Harris, 615 A.2d 771, 775 (Pa. Super. 1992). "When a motion for summary judgment is made and supported . . . the non-moving party may not rest on the averments made in his pleading. Rather, it is [the non-moving party's] responsibility to show that a genuine issue of fact exists by affidavit or otherwise." Id. (citations omitted).
To establish a prima facie case of professional negligence against a medical provider, a plaintiff must provide evidence of the following elements: the defendant owed the plaintiff a duty; the defendant breached that duty; the defendant suffered actual harm; and the breach of that duty was the proximate cause of, or a substantial factor in bringing about, the plaintiff's harm. See Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004). Determining whether there was a breach of duty in a professional malpractice action entails two steps: first, a determination of the relevant standard of care, and second, a determination of whether the defendant's conduct met that standard. See Toogood v. Rogal, 824 A.2d 1140, 1149 (Pa. 2003) (plurality). In a medical malpractice action, expert testimony is generally required to establish the following elements: the applicable standard of care, the defendant's failure to exercise that standard of care, and the causal relationship between the failure to exercise the standard of care and the plaintiff's harm. See id. at 1145.
To establish corporate negligence, a plaintiff is required to introduce evidence of the following:
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. [T]he conduct was a substantial factor in bringing about the harm.Whittington v. Episcopal Church, 768 A.2d 1144, 1149 (Pa. Super. 2001) (citation omitted). Further, unless the hospital's negligence is obvious, expert testimony is required to establish the first and third prongs of the test. Id.
In granting the motion for summary judgment, the trial court explained:
[Appellant] further testified that there were three persons in the room during the physical therapy session; a light skinned male, an African-American wom[a]n, and a Spanish woman. [Appellant] described these individuals as "nurses" and referred to the person standing in front of him as "he". According to [Appellant], some or all three persons were helping him get out of the bed, holding him, but then "they let him go" and, when he tried to take a step, [Appellant] cracked a bone in his left ankle, but they grabbed him right away, preventing him from falling. [Appellant] testified that prior to taking a step, one person was holding him on his right shoulder, one person was holding him on his left shoulder, and one person stood in front of him. However, and later, when [Appellant] was taken for surgery to repair his left ankle, he stated that "he slipped." And in answering a deposition question posed to him regarding other treatment, [Appellant] replied "You mean during the time that I slipped and fell?" Crucially, Uthappan's deposition provides no testimony to confirm or contradict [Appellant's] version of events as she has no independent recollection of what occurred on May 31, 2019[.]Trial Ct. Op. 11/10/22, at 4 (citations omitted).
The trial court also noted that, in the absence of expert testimony concerning how Appellant was helped out of the bed, supported, instructed to take a step, and "let go", it is not reasonable to infer that the injury was caused by Appellees' negligence. See id. In concluding that Appellant did not set forth evidence from which negligence may be inferred, the trial court further explained that Appellant's testimony "describes being helped out of bed by the 'nurses,' who held him, one at his right shoulder, and one at his left shoulder, and that these persons caught him as he was falling." Id. at 5 (citation omitted). The court further concluded that expert testimony was required because,
although the acts described by [Appellant] are not particularity complex, it is not obvious that negligence can be presumed based solely on the fact that [Appellant] fractured his ankle during physical therapy. Physical therapy is a professional form of treatment and an expert witness is necessary to opine on the standard of care for physical therapy assistants regarding; the proper method to transfer [Appellant] from a bed, what support was necessary to secure him in a standing position, and was it a breach of the standard of care to let go of [Appellant] when he took a step.Id. at 6.
After review, we agree with the trial court in our conclusion that the record does not support Appellant's assertions concerning the incident in question. Specifically, Appellant argues that "the facts of the instant case are so basic that a jury will not need to hear from any experts about why a medical professional should not have dropped or failed to prevent a patient from falling and causing serious injuries." Appellant's Brief at 17. He further opines that "it is clear that Defendant Uthuppan breached this duty when she instructed him to transfer with no support from her or any other staff and then his left leg/ankle snapped." Id. at 18.
We further observe that Appellant's decision to indicate on his COMs that "expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim" pursuant to Pa.R.C.P. 1042.3(a)(3) is inapposite to Appellant's argument challenging the trial court's preclusion of expert testimony on his behalf. As the note to the rule explains, when an attorney certifies under subdivision (a)(3) that expert testimony is unnecessary, the attorney is bound by the certification and, "the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation." Pa.R.C.P. 1042.3(a)(3) Note.
However, the record reflects that in Appellant's deposition testimony, he did not indicate that he had no support or that he was dropped during the therapy session. Rather, Appellant stated that there were three people present and "[o]ne was on the left side. I don't remember who was on the left. I just know somebody was on the left, and somebody was on the right; and they were, like, holding me, one to my right shoulder and one to my left shoulder." N.T. Appellant Dep., 9/16/22, at 47. Appellant then explained that as he took a step he started to fall, and the attendants present immediately grabbed him and he did not fall to the ground. See id. Moreover, on this record, Appellant has not provided expert evidence to establish a medical professional standard of care for a physical therapist, nor the deviation of any standard of care that caused Appellant's injuries during the subject physical therapy session. Appellant asserts that expert reports are not necessary and alleges that Appellees failed to take proper precautions to secure a known fall risk while Appellant was in their care, and that Appellant should not have been dropped to the floor; and that Appellee Uthuppan, as a medical professional owed a duty to protect Appellant from further injury, which she failed to do resulting in injury to Appellant. Appellant also alleged vicarious and corporate negligence. See Appellant's Brief at 17-21; Compl., 5/19/21, at ¶ 26.
However, Appellant's deposition testimony belies the facts asserted in his pleadings, and appellate brief before this Court, in that Appellant testified that he did not fall, nor was he dropped during the physical therapy session in question:
Q. And when they told you to get up and start to walk, where was each person standing?
A. I'm trying to think. What I remember is, they were by the bed, yeah. They were by the bed, like where I was at; and they were, like, helping me. One was on the left side. I don't remember who was on the left. I just know somebody was on the left, and somebody was on the right; and they were, like, holding me, one to my right shoulder and one to my left shoulder.
Q. Both of them were holding your shoulders as you started to try and walk?
A. Yeah.
Q. Okay. And where was the third person?
A. The third person? I believe he was in front of me.
Q. Okay. Can you walk me through what happened when you fell?
A. When I fell, well, they just -- I didn't completely fall to the ground. Like, as I was falling, they grabbed me; and then right there, like, they just kind of like -- everybody just, like, grabbed me by every part of my body; and they just laid me back on the bed.N.T. Appellant Dep., 9/16/22, at 47 (emphasis added).
In support of his claims, Appellant filed COMs indicating that expert testimony is not necessary in this action, therefore, we agree that the trial court correctly precluded Appellant from offering expert testimony as to the standard of care and causation at trial and no relief is due. Further, contrary to Appellant's assertions, we agree with the trial court's conclusion that negligence cannot be presumed solely because Appellant alleges that he fractured his ankle during physical therapy. Additionally, we agree with the trial court that physical therapy as a professional form of treatment would require expert witness testimony to establish the appropriate standard of care, causation, and the breach of that standard concerning the proper method to transfer Appellant from a bed, and the support necessary to secure him in a standing position, and walking. Accordingly, on this record, Appellant has failed to produce evidence of facts essential to his negligence claims to submit to a jury, such that summary judgment is appropriate because Appellant has presented insufficient evidence of facts to make out a prima facie case for his claims. Therefore, no genuine issues of material fact exist. See Pa.R.C.P. 1035.2(2); Chenot, 895 A.2d at 61. See also Pa.R.C.P. 1042.3(a)(3).
In his remaining four issues, Appellant offers various claims of error by the trial court related to discovery, which he alleges negatively impacted the procedural posture of this matter and affected his ability to present his case. See Appellant's Brief at 21-24. Specifically, Appellant claims that the trial court improperly limited discovery, precluded expert testimony before discovery was complete and pleadings closed, failed to provide an opinion to accompany its May 9, 2022 order precluding expert testimony as to standard of care and causation, and should have permitted Appellant to secure and present an expert at trial, which we have previously discussed. See id.
Pennsylvania Rule of Appellate Procedure 2119 addresses the argument section of appellate briefs and provides, in part, as follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have . . . such discussion and citation of authorities as are deemed pertinent.Pa.R.A.P. 2119(a).
This Court has long stated:
Rule 2119 contains mandatory provisions regarding the contents of briefs. We have held consistently, '[a]rguments that are not appropriately developed are waived.'
It is the appellant who has the burden of establishing [its] entitlement to relief by showing that the ruling of the trial court is erroneous under the evidence or the law. . . .Connor v. Crozer Keystone Health Sys., 832 A.2d 1112, 1118 (Pa. Super. 2003) (citation and emphasis omitted).
Moreover, this Court has explained:
This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter. When an appellant fails to develop his issue in an argument and fails to cite any legal authority, the issue is waived.
Moreover, "mere issue spotting without analysis or legal citation to support an assertion precludes our appellate review of a matter."In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013) (citations omitted and some formatting altered).
Here, the argument portions of Appellant's brief do not contain meaningful discussion of or citation to relevant legal authority. See Appellant's Brief at 21-24. Specifically, the portion of the arguments pertaining to Appellant's issues two through four each contain one paragraph, which consist of recitation of Appellant's allegations of perceived trial court procedural errors and no citation to legal authority. See id. at 21-23. We observe that the argument addressing Appellant's fifth issue contains one citation to case law mentioning that "the purpose of . . . civil trials is to discover the truth. . . ." Id. at 24 (quoting Bailey v. Tucker, 621 A.2d 108, 113 (Pa. Super. 1993)). However, Appellant failed to provide citation to or discussion of relevant legal authority on the issues. Therefore, we conclude that Appellant has waived these claims. On this record, we agree with trial court that Appellant has failed to establish a genuine issue of material fact sufficient to defeat Appellees' request for summary judgment. Therefore, the trial court correctly dismissed all of Appellant's claims. See In re S.T.S., Jr., 76 A.3d at 42; Connor, 832 A.2d at 1118.
In any event, were we to reach the merits of these claims, we would affirm on the basis of the trial court's Pa.R.A.P. 1925(a) statement, which incorporated the trial court's November 13, 2022 opinion. See Rule 1925(a) Statement, 1/10/23.
For these reasons we conclude that the trial court did not err nor abuse its discretion in entering summary judgment in favor of Appellees. See Continental Cas. Co., 916 A.2d at 1115-16. Therefore, we affirm the trial court's order.
Order affirmed. Jurisdiction relinquished.
Judgment Entered,