K.H. v. Kumar, S., M.D ( 2015 )

J-A08018-15
2015 Pa. Super. 177
K.H., A MINOR, BY HIS PARENT AND IN THE SUPERIOR COURT OF
NATURAL GUARDIAN, H.S., AND PARENT PENNSYLVANIA
AND GUARDIAN, E.H., IN THEIR OWN
RIGHT
Appellants
v.
SHAKTHI M. KUMAR, M.D., ET AL
Appellee No. 497 MDA 2014
Appeal from the Judgment Entered on February 19, 2014
In the Court of Common Pleas of Lancaster County
Civil Division at No.: Cl-09-00313
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED AUGUST 25, 2015
K.H. through his parents, H.S. and E.H.,1 and his parents individually
(collectively, “Appellants”), appeal the trial court’s November 27, 2013, and
February 19, 2014 orders granting summary judgment in favor of Appellees
Shakthi Kumar, M.D.; Yvonne Siwek, M.D.; Lancaster Pediatric Associates,
Ltd. (“Lancaster Pediatric”); Donald Diverio, Jr., D.O.; AO Orthopedics, Inc.;
Vincent Avallone, Jr., D.O.; Julie A. Mack, M.D.; Gene C. Smigocki, M.D.;
Lancaster Radiology Associates, Ltd. (“Lancaster Radiology”); Lancaster
General Hospital (“LGH”), Atilla Devenyi, M.D.; and Regional
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
K.H.’s biological father, as explained infra, is C.S. E.H. married H.S.
after the events underlying this lawsuit transpired.
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Gastroenterology Associates of Lancaster, Ltd. (“Regional Gastroenterology”)
(collectively, “Appellees”), and dismissing Appellants’ amended complaint
with prejudice. Although this case nominally presents several issues, their
resolution principally rests upon our answer to one question: Whether, as
the trial court ruled, the lack of an express statutory civil remedy under the
Child Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301, et seq.,
implicitly precludes a common-law remedy in tort for harms sustained due to
child abuse when a physician has failed to report reasonable suspicions that
a child is a victim of abuse to the government authorities designated by the
CPSL. After careful review of the record and the seventeen party briefs filed
in this case, we reverse and remand for further proceedings.
I. Introduction
This case presents this Court with various challenges to two trial court
orders that entered summary judgment for Appellees and collectively
dismissed all of Appellants’ claims against the Appellees. Motions for
summary judgment are governed by Pa.R.C.P. 1035.2, which provides as
follows:
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
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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.
In reviewing an order granting or denying summary judgment, we
apply the following standard:
We must examine the entire record in the light most favorable to
the non-moving party and resolve all doubts against the moving
party when determining if there is a genuine issue of material
fact. We will only reverse the lower court’s grant of summary
judgment if there is a manifest abuse of discretion. Summary
judgment should be granted only in cases where the right is
clear and free of doubt. Summary judgment serves to eliminate
the waste of time and resources of both litigants and the courts
in cases where a trial would be a useless formality.
First v. Zem Zem Temple, 686 A.2d 18, 20 (Pa. Super. 1996) (citations
and internal quotation marks omitted).
Although it is clear that a jury is not permitted to reach a verdict
based upon guess or speculation, it is equally clear that a jury
may draw inferences from all of the evidence presented. Cade
v. McDanel, 679 A.2d 1266 (Pa. Super. 1996).
It is not necessary, under Pennsylvania law, that every fact
or circumstance point unerringly to liability; it is enough
that there be sufficient facts for the jury to say reasonably
that the preponderance favors liability. . . . The facts are
for the jury in any case whether based upon direct or
circumstantial evidence where a reasonable conclusion can
be arrived at which would place liability on the defendant.
It is the duty of [the] plaintiffs to produce substantial
evidence which, if believed, warrants the verdict they
seek. . . . A substantial part of the right to trial by jury is
taken away when judges withdraw close cases from the
jury. . . .
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Id. at 1271 (quoting Smith v. Bell Tel. Co. of Penna.,
153 A.2d 477, 480 (Pa. 1959)).
First, 686 A.2d at 21 (citations modified).
II. FACTUAL AND PROCEDURAL HISTORY
As noted, we are constrained in this procedural posture to grant
Appellants the most favorable account of the evidence of record. For
present purposes, the trial court’s account of the factual background and
procedural history of this case suffices.
[K.H.] was born to [H.S.] and her former husband, [C.S.], on
June 29, 2002 at [LGH]. [K.H.] was born prematurely at thirty-
three weeks[’] gestation as a result of maternal preeclampsia.
Following his birth, [K.H.] was admitted to the Neonatal
Intensive Care Unit where he remained until his release from the
hospital on July 15, 2002. After his discharge, [K.H.] was
monitored by Dr. Shakthi Kumar at [Lancaster Pediatric]. [K.H.]
suffered from respiratory, cardiac and gastrointestinal
complications due to his prematurity, and was admitted to LGH
on five occasions in July and August of 2002 pursuant to these
issues.
On September 9, 2002, [H.S.] took [K.H.] to [Lancaster
Pediatric] with symptoms including congestion, spitting up,
wheezing and refusing to sleep and eat. [K.H.] was examined
by Dr. Yvonne Siwek, who ordered a chest X-ray. The X-ray was
performed and read by Dr. Julie Mack at LGH. Dr. Mack noted
that [K.H.’s] lungs were clear, but that the X-ray showed healing
fractures of the fifth and sixth ribs and flattening of the vertebral
bodies at T8, T9, T12, L2, L3 and L4. Dr. Mack discussed her
findings with Dr. Siwek by telephone. While concerned about
the potential of child abuse, Dr. Mack concluded that the more
likely cause of the injuries was a congenital issue secondary to
[K.H.’s] premature birth. Dr. Siwek memorialized the
conversation with an entry in her office chart and referred [K.H.]
to Dr. Donald Diverio, a pediatric orthopedist at AO Orthopedics.
On September 12, 2002, [K.H.] was examined by Dr. Diverio.
Dr. Diverio noted that [K.H.] became irritable upon palpation of
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his ribs. Dr. Diverio additionally reviewed the September 9th X-
rays. At the conclusion of the office visit, Dr. Diverio accused
[H.S. and C.S.] of child abuse.1 After the appointment, [H.S.
and C.S.] took [K.H.] to see Dr. Kumar and told her about
Dr. Diverio’s allegations. [Appellants] assert that, following their
conversation, Dr. Kumar called Dr. Diverio and discussed
[K.H.’s] injuries with him.
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1
During his deposition, Dr. Diverio denied accusing [H.S.
and C.S.] of abusing [K.H.]. Nevertheless, for summary
judgment purposes, viewing the record in the light most
favorable to the non-moving party, the [c]ourt will assume
that these allegations were made as pled in Plaintiffs’
Amended Complaint.
Later the same day, [K.H.] underwent a bone survey performed
and read by Dr. Mack at LGH. Dr. Mack’s report identified
healing rib fractures and vertebral deformities.
On October 2, 2002, [K.H.] was seen by Dr. Atilla Devenyi, a
gastroenterologist at [Regional Gastroenterology]. Dr. Devenyi
examined [K.H.] and noted a rash or bruise on his sternum and
chest wall. Dr. Devenyi reported his findings to Dr. Kumar.
[K.H.] was seen in Dr. Kumar’s office on October 3, 2002, where
she also observed the mark on his lateral chest wall and
sternum. Dr. Kumar noted in her office chart, “Seen by
Dr. Devenyi yesterday. Ordered PT/PTT, CBC with platelets for a
pattern seen on the chest that was suspicious for abuse. He also
ordered a skeletal survey[.”] Later that day, Dr. Kumar spoke
with Dr. Devenyi about the skeletal survey and laboratory tests
that he ordered, and, following their conversation, the tests were
canceled.
On December 3, 2002, [K.H.] presented at [Lancaster Pediatric]
for an appointment with Dr. Kumar. Dr. Kumar examined [K.H.]
and noted an increase in the size of his head as well as a bruise
on his forearm. On December 6, 2002, [K.H.] underwent a
chest X-ray at LGH. Dr. Mack read the X-ray and reported[]
“minimal deformity of [the] anterior lateral 7th rib compatible
with [a] remote healing fracture” as well as “smooth periosteal
reaction involving both humeri[.”] Dr. Mack additionally noted,
“if there is any clinical concern of non-accidental trauma, full
skeletal series should be performed[.”]
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On December 6, 2002, [K.H.] underwent an ultrasound of his
head at LGH. Dr. Gene Smigocki read and interpreted the
ultrasound and noted, “no evidence of hydronephrosis.
Asymmetrically prominent left frontal horn. No hemorrhage[.”]
On December 18, 2002, [K.H.] was discovered at home in his
crib unresponsive by [C.S.] and was rushed to LGH. A CT scan
of his head was performed[,] which showed a left frontal
intracranial hemorrhage. Consequently, [K.H.] was transported
via helicopter to Milton S. Hershey Medical Center. It was later
confirmed that [K.H.] had suffered non-accidental injuries
including “contusion in the high left parietal region with
surrounding edema with mass effect, interhemispheric subdural
hematoma, tentorium subdural hematoma, and small left
frontoparietal subdural hematoma[.”] It was additionally
determined that [K.H.] suffered these injuries because he was
shaken. As a consequence of this incident, [C.S.] was charged
with and convicted of felony child abuse and is currently serving
a five- to ten[-]year prison sentence.
[Appellants] claim that, as a result of his injuries, [K.H.] suffers
from permanent brain damage and seizures, physical and
neurodevelopmental deficits, disabilities and delays, delayed
growth and development, and other physical traumas.
[Appellants] additionally allege that [K.H.] has sustained
numerous personal injuries including substantial pain and
suffering, mental anguish, loss of life’s pleasures, humiliation,
embarrassment and disfigurement.
On January 13, 2009, [H.S.] and her current husband, [E.H.], on
behalf of [K.H.] and in their own right, filed a Complaint for
medical professional liability in the Lancaster County Court of
Common Pleas. In the Complaint, [Appellants] asserted
negligence claims against Dr. Kumar, Dr. Siwek, [Lancaster
Pediatric], Dr. Diverio, AO Orthopedics, Dr. Mack, [Lancaster
Radiology,] and LGH, alleging that they collectively failed to
recognize, treat and report child abuse pursuant to
Pennsylvania’s [CPSL] §§ 6311 and § 6313.[2] [Appellees] filed
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2
Specifically, section 6311 of the CPSL obligates, inter alia, any person
“licensed or certified to practice in any health-related field under the
jurisdiction of the Department of State,” as well as any “employee of a
health care facility or provider licensed by the Department of Health, who is
(Footnote Continued Next Page)
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Preliminary Objections in the nature of a demurrer, which
[o]bjections were overruled without [o]pinion by the Honorable
Dennis E. Reinaker on October 13, 2009. On November 19,
2009, the Court amended its [o]rder overruling the [p]reliminary
[o]bjections to include a certification for immediate interlocutory
appeal to the Superior Court. [Appellees] then filed a “Petition
for Allowance of Appeal” with the Superior Court[,] which was
denied via a per curiam [o]rder on February 16, 2010.
On August 11, 2011, [Appellants] filed an Amended Complaint
containing additional claims of negligence against Dr. Avallone,
Dr. Smigocki, Dr. Devenyi and [Regional Gastroenterology],
alleging that they also failed to report a suspicion of child abuse
pursuant to the CPSL. Moreover, [Appellants] asserted medical
negligence claims against Drs. Mack and Smigocki based upon
misreads of radiographic imaging. [Appellees] demurred a
second time, and their [p]reliminary [o]bjections were overruled
again without [o]pinion by Judge Reinaker on January 4, 2012.
On June 22, 2012, the case was reassigned to me [i.e., Judge
Wright].
With discovery now complete, [Appellees] have filed Motions for
Summary Judgment seeking to dismiss [Appellants’] claims
against them. In their [m]otions, [Appellees] assert that
summary judgment is warranted because the CPSL does not
create a private civil cause of action for violation of the reporting
requirements contained in 23 Pa.C.S.A. § 6311 and § 6313.
Further, [Appellees] argue that Pennsylvania law does not
authorize negligence per se claims based upon violations of the
_______________________
(Footnote Continued)
engaged in the admission, examination, care or treatment of individuals” to
“make a report of suspected child abuse . . . if the person has reasonable
cause to suspect that a child is a victim of child abuse.” 23 Pa.C.S.
§§ 6311(a)(1), (3). Notably, subsection 6311(b)(3) provides that “[n]othing
in this section shall require the mandated reporter to identify the person
responsible for the child abuse to make a report of suspected child abuse.”
Section 6313 directs the reporting procedure, requiring a mandated reporter
to “immediately make an oral report of suspected child abuse to the
department via the Statewide toll-free telephone number . . . or a written
report using electronic technologies,” and further directs that an oral
reporter submit a written report to the assigned department or agency
within forty-eight hours.
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CPSL, and that there is no common[-]law duty for a physician to
report a reasonable suspicion of child abuse. Additionally,
[Appellees] contend that, even if the [c]ourt recognizes a duty
for physicians to report suspected child abuse, [Appellants]
cannot establish that [Appellees’] conduct was the legal cause of
[K.H.’s] injuries. Finally, LGH asserts that [Appellants] have
failed to establish that they are liable for the conduct of the
physicians through the doctrine of ostensible agency, or that the
hospital engaged in corporate negligence.
Trial Court Opinion (“T.C.O.”), 11/27/2013, at 2-6 (citations omitted).
After reviewing Appellees’ various arguments, the trial court entered
partial summary judgment as follows:
[Appellees’] Motions are granted insofar as all of [Appellants’]
claims based upon [Appellees’] alleged failure to recognize, treat
and report reasonable suspicions of child abuse are dismissed.
LGH’s Motions are also granted as to [Appellants’] corporate
negligence claims related to the hospital’s failure to adopt
policies to ensure quality care for the patient and to select and
retain competent physicians. However, Dr. Mack, Dr. Smigocki,
[Lancaster Radiology] and [LGH’s] [m]otions are denied with
respect to any averments of negligence that are specifically
premised on the misinterpretation of radiological studies by
Drs. Mack and Smigocki, and the vicarious liability of Lancaster
Radiology Associations and [LGH] on these medical malpractice
claims.
Order, 11/27/2013, at 1-2.
The parties thereafter filed motions for reconsideration. After
reviewing the motions, the trial court entered an order denying Appellants’
motion for reconsideration, granting Appellees’ motion for reconsideration,
and dismissing Appellants’ amended complaint in its entirety. See Order,
2/19/2014, at 1. The trial court order included a footnote explaining the
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court’s reversal of course as to those claims that initially survived summary
judgment:
Upon further review of [Appellants’] expert reports submitted by
Drs. [Alan E.] Oestreich and [James] Abrahams, the [c]ourt
determined that, while both experts initially opine that Drs. Mack
and Smigocki misinterpreted [K.H.’s] radiographic studies, they
ultimately conclude that the only damage caused by these errors
was that the physicians failed to recognize and report suspected
child abuse. The [c]ourt has already determined that
Pennsylvania law does not authorize a private cause of action
against a physician for failure to report suspected child abuse.
Accordingly, [Appellees’] Motion for Reconsideration must be
granted.
Id. at 1 n.1. The trial court’s February 19, 2014 order rendered final the
court’s entry of summary judgment for Appellees as to all of Appellants’
claims. This timely appeal followed.
On March 18, 2014, the trial court directed Appellants to file a concise
statement of the errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellants timely complied on April 8, 2014. On
April 30, 2014, the trial court issued its Rule 1925(a) opinion, which directed
this Court’s attention to the explanations provided in its lengthy November
27, 2013 opinion, which coincided with its initial order entering partial
summary judgment.
II. DISCUSSION
Appellants raise the following issues for review:
1. Did the trial court commit an error of law by granting
summary judgment in favor of [Appellees] on purely legal issues
that had been decided in favor of [Appellants] on preliminary
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objections by a judge of coordinate jurisdiction where no new
law or evidence was presented?
2 Did the trial court commit an error of law by granting
summary judgment in favor of [Appellees] on [Appellants’]
legally cognizable claims for professional medical negligence
based on [Appellees’] departure from the applicable standard of
care where [Appellants] established a duty based on the
[Appellees’] admissions and expert opinions?
3. Did the trial court commit an error of law by granting
summary judgment on [Appellants’] anticipated request for a
negligence per se jury instruction at trial?
4. Did the trial court commit an error of law by granting
summary judgment in favor of [Appellees] where the record
contained more than adequate evidence, including multiple
expert reports, demonstrating [that Appellees’] medical
negligence increased the risk of harm to [K.H.]?
5. Did the trial court commit an error of law by granting
summary judgment in favor of [LGH] on [Appellants’] claims for
corporate negligence where the record contained more than
sufficient evidence that [LGH] failed to have appropriate policies
in place for the retention and availability of patients’ prior
radiology studies, and failed to have adequately trained,
experienced, and qualified physicians to read pediatric
radiographs?
Brief for Appellants at 4-5 (footnote omitted).3
A. The Coordinate Jurisdiction Doctrine Does Not Preclude
the Trial Court from Granting Summary Judgment.
Appellants’ first issue is the easiest to resolve, requiring only brief
discussion. As noted, supra, the trial court’s entry of summary judgment for
Appellees hinged principally, perhaps exclusively, upon the proposition that
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3
Issues two and four overlap sufficiently that we will consider them
together as Appellants’ second issue.
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Appellants’ claims, however denominated, amounted to claims for civil relief
for violations of the CPSL’s reporting obligations. In effect, Appellants argue
that Judge Reinaker, the first judge assigned this case, conclusively decided
this issue in their favor. Consequently, the coordinate jurisdiction rule
barred Judge Wright, to whom the matter later was assigned, from granting
summary judgment for Appellees. We disagree.
Our Supreme Court has described the coordinate jurisdiction rule as
follows:
Generally, the coordinate jurisdiction rule commands that[,]
upon transfer of a matter between trial judges of coordinate
jurisdiction, a transferee trial judge may not alter resolution of a
legal question previously decided by a transferor trial judge.
More simply stated, judges of coordinate jurisdiction should not
overrule each other’s decisions.
The reason for this respect for an equal tribunal’s decision . . . is
that the coordinate jurisdiction rule is based on a policy of
fostering the finality of pre-trial applications in an effort to
maintain judicial economy and efficiency. Furthermore, . . . the
coordinate jurisdiction rule serves to protect the expectations of
the parties, to [e]nsure uniformity of decisions, to maintain
consistency in proceedings, to effectuate the administration of
justice, and to bring finality to the litigation.
Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (citations modified;
internal quotation marks omitted).
The trial court addressed this issue only briefly in its Rule 1925(a)
opinion, rejecting Appellants’ argument by reference to this Court’s decision
in Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168, 1170
(Pa. Super. 1988). In Salerno, this Court made the following observations:
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[The coordinate jurisdiction rule] is not intended to preclude
granting summary judgment following denial of preliminary
objections. “The failure to present a cause of action upon which
relief can be granted may be raised at any time. A motion for
summary judgment is based not only upon the averments of the
pleadings but may also consider discovery depositions, answers
to interrogatories, admissions and affidavits.” Austin J.
Richards, Inc., v. McClafferty, 538 A.2d 11, 14-15 n.1
(Pa. Super. 1988). We can discern no reason for prohibiting the
consideration and granting of a summary judgment if the record
as it then stands warrants such action. Cf. DiAndrea v.
Reliance S.&L. Ass’n, 456 A.2d 1066, 1069 (Pa. Super. 1983).
This is particularly true when the preliminary objections were
denied without an opinion. Farber v. Engle, 525 A.2d 864
(Pa. Cmwlth. 1987).
Salerno, 546 A.2d at 1170 (citations modified).
Appellants counterpose, inter alia, our Supreme Court’s decision in
Goldey v. Trustees of Univ. of Penna., 675 A.2d 264 (Pa. 1996). In this
Court’s decision preceding the Supreme Court’s review, we appeared to
expand Salerno’s reliance upon the lack of trial judge opinion in connection
with denying preliminary objections to a far broader spectrum of motions
and procedural contexts. This Court’s ruling to that effect, our Supreme
Court observed, “stretched far beyond the exception stated in Salerno,
which was grounded in the differences between preliminary objections and
summary judgment motions.” Goldey, 675 A.2d at 267. The Supreme
Court, emphasizing that the “presence or absence of an opinion in support of
the initial ruling is not controlling,” held without qualification that, “[w]here
the motions differ in kind, as preliminary objections differ from motions for
judgment on the pleadings, which differ from motions for summary
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judgment, a judge ruling on a later motion is not precluded from granting
relief although another judge has denied an earlier motion.” Id.
Appellants seek to distinguish Salerno from the instant case on the
basis that, in the instant case, the record relevant to the purely legal issues
raised on summary judgment before Judge Wright was no more expansive
than the record as it appeared to Judge Reinaker when he overruled
Appellees’ preliminary objections. Brief for Appellants at 27. For this
reason, Appellants argue that the procedural context is immaterial, because
the spirit of the coordinate jurisdiction rule was violated when the trial court
accepted these arguments after they were rejected earlier by a different
judge. Id. at 27-28.
In the strongest of the Appellees’ various briefs on this subject, 4
Appellee Dr. Devenyi cites, inter alia, Mellon Bank, N.A., v. National
Union Insurance Co. of Pittsburgh, PA, 768 A.2d 865 (Pa. Super. 2001),
as controlling authority. Brief for Dr. Devenyi, AO Pediatric Associates, Inc.,
and Dr. Avallone at 11-12 (“Brief for Devenyi”). In that case, one judge
overruled preliminary objections asserted on the basis that the claimant in
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4
In sum, this Court is confronted with seventeen briefs—Appellants’
primary brief, eight responsive briefs by Appellees, and Appellants’ reply
brief to each responsive brief. In the discussion that follows, references to
individual Appellees’ arguments will occur only rarely, because their
arguments tend to be shared, incorporated by reference, or materially the
same. Except when circumstances warrant otherwise, we will simply refer to
“Appellees’” arguments.
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that case was not an insured, and did not provide an explanatory opinion.
Later, when the same issue was raised before a different judge in a motion
for summary judgment that did not present any new evidence in support of
dismissal, this Court, citing Goldey, held that the differing nature of the two
motions sufficed to preclude application of the coordinate jurisdiction rule.
We agree that Mellon Bank is controlling. Consequently, we find it
immaterial whether, in fact, the decisional record on summary judgment
before Judge Wright varied at all from what Judge Reinaker had at his
disposal in reviewing Appellees’ preliminary objections. Under Mellon
Bank, the procedural context alone precludes application of the coordinate
jurisdiction rule. Accordingly, we reject Appellants’ argument that Judge
Wright was barred from granting Appellees summary judgment by Judge
Reinaker’s prior contrary ruling in the context of preliminary objections.
B. Appellants Do Not Seek to Establish a Civil Cause of
Action Under the CPSL.
In taking up the questions presented as issues two and four, we
cannot address whether Appellants set forth a prima facie case of medical
malpractice in various particulars before first addressing the trial court’s and
Appellees’ conclusions that Appellants seek relief that necessarily sounds in
a putative civil violation of the CPSL, a statute that expressly provides only
criminal sanctions against physicians who “willfully” fail to comply with its
terms. See 23 Pa.C.S. § 6319(a)(1). The trial court ruled that the absence
of an express provision in the CPSL providing for such a claim necessarily
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signals the exclusion of any civil cause of action based upon a failure to
report child abuse, requiring dismissal of all of Appellants’ claims.
Only Appellee Regional Gastroenterology Associates of Lancaster—in a
mere two sentences—addresses this issue in the terms that we find
conclusive: “In their Brief, Appellants concede that the [CPSL] does not
create a private cause of action against Appellees. [Regional
Gastroenterology] accepts this concession.” Brief for Regional
Gastroenterology at 2. We agree.5
That being said, Appellees’ arguments suggest that Appellants’ claims,
even if framed as common-law medical malpractice, necessarily depend
upon the existence of a civil remedy under the CPSL. Appellees in effect
assert that Appellants may not obtain the benefit of their artful pleading in
seeking to invent a private cause of action that the legislature implicitly
declined to create. Notably, Appellees offer no controlling or entirely on-
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5
Appellants unnecessarily complicate their own position by suggesting
that Regional Gastroenterology’s assertion that Appellants concede the
matter “misses the point.” Reply Brief of Appellants to Brief of Regional
Gastroenterology at 2 (unnumbered). Appellants elaborate that, “[w]hile
the CPSL may not include an express private cause of action, [Appellants]
have not sought to recover under the statutory provisions of the CPSL.” Id.
This strikes us as a distinction without a difference. In any event, even if
Appellants did not disavow any such claim, we would find it waived for want
of argument in support of such a position. See Commonwealth v. Veon,
109 A.3d 754, 774 (Pa. Super. 2015) (deeming an issue waived under
Pa.R.A.P. 2119(a) because the appellant failed to provide a “properly
developed argument”).
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point case law establishing the necessity of construing Appellants’ claims in
this fashion. Furthermore, the CPSL does not expressly preclude civil
liability for a failure to report abuse, nor immunize those who fail in their
reporting obligations.
Consequently, for purposes of determining whether Appellants have
stated a prima facie case of medical malpractice or negligence, we think it
most useful to evaluate the adequacy of Appellants’ showing in this regard
as though the CPSL simply does not exist. Appellants claim not to rely upon
it, and we find no reason in Pennsylvania law not to treat their asserted
common-law claims as such. If Appellants’ claims cannot stand without
reference to the CPSL, our analysis would reveal that flaw. However, we do
not find that to be the case.
C. Appellants Have Set Forth a Prima Facie Case of Medical
Malpractice.
We begin with the time-honored characterization of the standard that
governs common-law medical malpractice claims:6
[W]hen a plaintiff’s medical malpractice claim sounds in
negligence, the elements of the plaintiff’s case are the same as
those in ordinary negligence actions. As such, medical
malpractice can be broadly defined as the unwarranted
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6
At times, Appellants refer to their claims as ordinary negligence and in
others as sounding in medical malpractice. However, the substance of their
claims consists of assertions consistent with medical malpractice, and we
treat them exclusively as such. See Grossman v. Barke, 868 A.2d 561,
566 (Pa. Super. 2005) (analyzing claims stated as ordinary negligence under
the standards governing medical malpractice).
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departure from generally accepted standards of medical practice
resulting in injury to the patient, including all liability-producing
conduct arising from the rendition of professional medical
services. Thus, to prevail in a medical malpractice action, a
plaintiff must establish a duty owed by the physician to the
patient, a breach of that duty by the physician, that the breach
was the proximate cause of the harm suffered, and [that] the
damages suffered were a direct result of the harm.
Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003)
(citations and internal quotation marks omitted); see Grossman v. Barke ,
868 A.2d 561, 566 (Pa. Super. 2005).
“Whether a duty of care exists in any given set of circumstances is a
question of law.” Winschel v. Jain, 925 A.2d 782, 796 (Pa. Super. 2007).
However, provided the plaintiff makes a prima facie showing of a duty, the
standard of care and the defendant’s satisfaction of that standard are
questions of fact to be submitted to a jury. Joyce v. Blvd. Phys. Therapy
& Rehab. Ctr., P.C., 694 A.2d 648, 654-55 (Pa. Super. 1997).
1. Appellees owed the general duty of care to K.H.
that arises in the physician-patient
relationship.
Our Supreme Court has spoken eloquently of the nature of the duty
owed by any one person to another:
In determining the existence of a duty of care, it must be
remembered that the concept of duty amounts to no more than
the sum total of those considerations of policy which led the law
to say that the particular plaintiff is entitled to protection from
the harm suffered. . . . To give it any greater mystique would
unduly hamper our system of jurisprudence in adjusting to the
changing times. The late Dean Prosser expressed this view as
follows:
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These are shifting sands, and no fit foundation. There is a
duty if the court says there is a duty; the law, like the
Constitution, is what we make it. Duty is only a word with
which we state our conclusion that there is or is not to be
liability; it necessarily begs the essential question. When
we find a duty, breach and damage, everything has been
said. The word serves a useful purpose in directing
attention to the obligation to be imposed upon the
defendant, rather than the causal sequence of events;
beyond that it serves none. In the decision whether or not
there is a duty, many factors interplay: [t]he hand of
history, our ideas of morals and justice, the convenience of
administration of the rule, and our social ideas as to where
the loss should fall. In the end the court will decide
whether there is a duty on the basis of the mores of the
community, always keeping in mind the fact that we
endeavor to make a rule in each case that will be practical
and in keeping with the general understanding of mankind.
Sinn v. Burd, 404 A.2d 672, 681 (Pa. 1979) (citations omitted).
Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000) (emphasis added;
citations modified); see Thierfelder v. Wolfert, 52 A.3d 1251, 1265
(Pa. 2012).
The following overarching principle, which adapts the broader notion of
duty to the context of medical malpractice, is enshrined in many decades of
our case law:
Duty is measured against the standard of care appropriate to the
training of the physician and the time and place of the
treatment. Our Supreme Court has explained the standard of
care appropriate to a non-specialist physician as follows:
The standard of care required of a physician . . . is well-
settled . . . . A physician who is not a specialist is required
to possess and employ in the treatment of a patient the
skill and knowledge usually possessed by physicians in the
same or a similar locality, giving due regard to the
advanced state of the profession at the time of the
treatment; and in employing the required skill and
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knowledge he is also required to exercise the care and
judgment of a reasonable man.
Joyce, 694 A.2d at 654 (quoting Donaldson v. Maffucci, 156
A.2d 835, 838 (Pa. 1959))
Winschel, 925 A.2d at 796-97 (citations modified).
A specialist acting within his or her specialty . . . is held to a
higher standard; he or she is expected to exercise that degree of
skill, learning and care normally possessed and exercised by the
average physician who devotes special study and attention to
the diagnosis and treatment of diseases within the specialty.
Maurer v. Trustees of Univ. of Penna., 614 A.2d 754, 758
(Pa. Super. 1992) (internal quotation marks omitted).
The trial court began its discussion of Appellants’ common-law claims
as follows:
As a general rule, under Pennsylvania law, a person is not liable
for the criminal conduct of a third party. Feld v. Merriam, 485
A.2d 742, 756 (Pa. 1984). Moreover, it is axiomatic that there is
no duty to control the conduct of a third person to prevent him
from causing physical harm to another unless (a) a special
relationship exists between the actor and third person’s conduct,
or (b) a special relationship exists between the actor and the
other which gives the other a right to protection. Emerich v.
Phila. Ctr. for Human Dev., Inc., 720 A.2d 1032, 1036
(Pa. 1998). . . . Absent a special relationship, the duty that one
person owes to another is “the general duty imposed upon all
persons not to expose others to risk of injury which are
reasonably foreseeable[.”] Schmoyer v. Mexico Forge, Inc.,
649 A.2d 705, 708 (Pa. Super. 1994).
T.C.O. at 18 (citations modified).
The trial court relied exclusively upon a Georgia decision to support its
finding that no relevant duty arose under the circumstances of this case.
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Specifically, the trial court deemed “persuasive” the Court of Appeals of
Georgia’s decision in Cechman v. Travis, in which that court, faced with
claims materially identical to those at bar, found no common-law duty on the
part of the physician to discover and report a case of possible child abuse.
T.C.O. at 19 (citing Cechman, 414 S.E.2d 282, 285 (Ga. Ct. App. 1991)).
But see First Comm’l Trust Co. v. Rank, 915 S.W.2d 262, 267-68
(Ark. 1996) (rejecting Cechman and noting that physician’s attorney
conceded that common-law medical malpractice claim may lie for failure to
report).
We find the trial court’s resort to Cechman unconvincing. In
connection with duty, we are confronted with a trial court decision and
arguments by the Appellees reflecting an essential misapprehension by the
trial court and the Appellees, one that perhaps descends from many cases in
which the distinction between duty and standard of care has been blurred
without consequence when properly separating the two was less critical than
it is in this case. Stated specifically and in brief, the trial court and Appellees
effectively maintain that the question of duty must be stated in the
particular terms of the case presented. Thus, in the absence of an express
common-law “duty” specifically to report suspected child abuse that has
been recited in a prior controlling precedent, such a claim categorically is
unavailable. However, to define the relevant duty in this case in that fashion
improperly imports into the duty inquiry questions pertaining to whether a
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duty was breached, which is a question of fact as to which Appellants
presented sufficient evidence to create a genuine issue of material fact.
In most cases, this distinction will be of little import, which is why our
medical malpractice case law tends to lack discussions that clearly segregate
these inquiries. However, disentangling these principles is critical to
resolving the issue presented: If the question is simply whether Appellees
owed K.H., as their patient, a duty of reasonable care, then the necessity of
a duty clearly is satisfied. As our case law makes clear, a physician must
“possess and employ in the treatment of a patient the skill and knowledge
usually possessed by physicians in the same or a similar locality, giving due
regard to the advanced state of the profession at the time of the treatment”
and “is also required to exercise the care and judgment of a reasonable
man.” Winschel, 925 A.2d at 196-97. However, if, as the trial court and
Appellees maintain, the question is whether Appellees had a specific duty to
report suspicions of abuse, the absence of case law establishing such a duty
lends at least some credence to Appellees’ claims that to vindicate
Appellants’ view would create an entirely new form of liability, which this
Court does not regularly do.7
____________________________________________
7
Although ultimately we find this argument immaterial to our analysis,
the mere recognition of a viable basis for a tort claim that has not previously
been presented to Pennsylvania courts should not be fatal per se to such a
claim. As the Minnesota Supreme Court observed in Becker v. Mayo
Foundation, 737 N.W.2d 200 (Minn. 2007), the “[n]ovelty of an asserted
right and lack of common-law precedent are no reasons for denying its
(Footnote Continued Next Page)
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Although we find the relevant principle in the above-cited cases,
Pennsylvania law is not a paragon of clarity in distinguishing duty from
standard of care. Nonetheless, additional suggestions as to the correct
answer are found in the above cases and others. In Pratt v. Stein,
444 A.2d 674 (Pa. Super. 1982), for example, we held that a physician’s
duty to a patient is simply the “exercise [of] reasonable medical care,”
without importing into that question of duty the precise contours of what
care was appropriate under the circumstances of that case. Rather, we
addressed the particular standard of care and the doctor’s satisfaction
thereof as a question of fact. Id. at 705. And in Ervin v. American
Guardian Life Assurance Co., 545 A.2d 354 (Pa. Super. 1988), this Court
held that a cardiologist retained by an insurance company to review an
insured’s electrocardiogram did not owe the claimant a duty that would
support a medical malpractice action. In so doing, we favorably quoted a
Michigan decision to the effect that, where the claimant did not seek medical
advice or treatment from the defendant, the physician lacked the duty that
attaches to such a relationship. Id. at 356 (quoting Rogers v. Horvath,
237 N.W.2d 595, 596-97 (Mich. Ct. App. 1976)).8
_______________________
(Footnote Continued)
existence. The common law does not consist of absolute, fixed, and
inflexible rules. Its principles have been determined by the social needs of
the community and have changed with changes in such needs.” Id. at 216.
8
The Michigan Supreme Court later abrogated Rogers, holding that an
independent medical examiner owes a limited duty to the subject of his
(Footnote Continued Next Page)
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Perhaps most interestingly, just last year this Court reaffirmed a
limited duty on the part of a physician to certain third parties in the
treatment of a patient with a communicable disease. Our decision was
couched in the Restatement (Second) of Torts § 324A (“Liability to Third
Person for Negligent Performance of Undertaking”), which provides that
“[o]ne who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of a
third person . . ., is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care . . . .” Restatement
(Second) of Torts § 324A. We noted that the “original undertaking,” i.e.,
“entry into the physician-patient relationship for treatment purposes,”
imposed upon the physician “the duty to exercise reasonable care.”
Matharu v. Muir, 86 A.3d 250, 259 (Pa. Super. 2014) (quoting Seebold v.
Prison Health Servs., Inc., 57 A.3d 1232, 1244-45 (Pa. 2012)).
Comparing these cases’ accounts of what general duty a physician
owes to a patient to certain intrinsic principles of medical malpractice claims
points to the proper approach to separating a physician’s duty from his
standard of care. First, as noted, supra, the duty inquiry is a pure question
of law. Consequently, it is for the court in the first instance to determine
without jury consideration whether a duty attaches under the circumstances
_______________________
(Footnote Continued)
examination that is consistent with his professional training and expertise.
See Dyer v. Trachtman, 679 N.W.2d 311 (Mich. 2004).
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of the case before it. However, we also have made clear that in all but
extraordinary cases, establishing the applicable standard of care, or if one
prefers, the contours of the general duty recognized in the first instance by
the court, requires expert testimony and presents a question of fact for the
jury. Joyce, 694 A.2d at 654-55. If we allow the trial court to import into
the duty inquiry a determination as to the precise standard of care at issue,
and implicitly to decide on summary judgment that the standard has not
been breached, we take from the jury its prescribed role in medical
malpractice cases. The integrity of the time-honored delineation of what
belongs to the court and what belongs to the jury can be preserved only by
separating a physician’s general duty to his patient, the formulation of
which arises simply from the inception of any physician-patient relationship,
from the elucidation of how that duty is to be fulfilled in a given case, which
concerns the particular standard of care, and whether the defendant did so.
The latter inquiries require a jury determination. See id.9
____________________________________________
9
Even as they argue for the expanded account of what duty a trial court
must find as a matter of law before a case may proceed, Appellees LGH and
Dr. Kumar elsewhere appear to concede that the inquiry properly proceeds
from the threshold question of law on to trial and jury consideration as we
explain herein. LGH, for example, notes that “a duty exists, as recognized
by law as created by the physician/patient relationship, that requires the
physician to act in accordance with specific norms or standards established
by the profession, commonly referred to as the standard of care.” Brief
for LGH at 20 (emphasis in original). LGH then notes that, “if no care is due,
it is meaningless to assert that a person failed to act with due care.” Id.
(quoting Elbasher v. Simco Sales Serv. of Penna., 657 A.2d 983, 984-85
(Pa. Super. 1995)). See Brief for Kumar at 36-37 (noting that “[w]hether a
(Footnote Continued Next Page)
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In light of this account, it is clear that the trial court conflated the
broader inquiry into Appellees’ duties into one inflected by the case- and
physician-specific standard of care, the determination of which is reserved
for the jury. This error led the court to conclude that no common-law claim
for a failure to report would lie, when, in fact, the common-law claim that
was asserted is (or may be) merely a species of medical malpractice, albeit
one infrequently invoked, requiring expert testimony sufficient to enable a
jury to conclude that the standard of care applicable to Appellees in this case
entailed an obligation to report suspicions of child abuse. Appellants
established Appellees’ general duty as soon as they established the
undisputed physician-patient relationship between K.H. and all of the
Appellees in this case. Thus, we now must consider whether Appellants set
forth sufficient evidence as to each of the remaining elements of a medical
malpractice claim to establish a prima facie case for medical malpractice.
2. Appellants set forth a prima facie case that
Appellees breached their respective duties to
K.H.
Having established the threshold duty that K.H.’s healthcare providers
owed him as a consequence of the physician-patient relationship, we turn
_______________________
(Footnote Continued)
physician is performing his duty . . . is established by the profession of which
the physician is a member,” but stating that “[e]xperts do not establish
whether a duty exists,” and conceding that Dr. Kumar had a duty to
examine, diagnose, and treat K.H.).
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now to the question of breach. Because we review Appellants’ proffer in the
light most favorable to Appellants, we must consider whether their evidence
(a) could lead a jury reasonably to conclude that Appellees’ standards of
care entailed obligations to form and/or report suspicions of abuse, and
(b) establishes a basis upon which a jury reasonably could conclude that
Appellants failed to meet their respective standards of care.
(a) Appellants’ evidence creates a genuine
issue of material fact regarding whether
Appellees’ standard of care imposed upon
them a reporting obligation.
Under the circumstances of this case, establishing the applicable
standard of care for a general practitioner or a specialist generally requires
expert testimony. See Donaldson, 156 A.2d at 838; Maurer, 614 A.2d
at 758. Typically, “[a] plaintiff [must] present an expert witness who will
testify, to a reasonable degree of medical certainty, that the acts of the
physician deviated from good and acceptable medical standards . . . .”
Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990).
“This requirement stems from judicial concern that, absent the
guidance of an expert, jurors are unable to determine
relationships among scientific factual circumstances.” Brannan
v. Lankenau Hosp., 417 A.2d 196, 199-200 (Pa. 1980) (citing
McMahon v. Young, 276 A.2d 534 (Pa. 1971)). The standard
by which an expert witness is qualified, however, is a liberal one.
Lira v. Albert Einstein Med. Ctrs., 559 A.2d 550
(Pa. Super. 1989); see Flanagan v. Labe, 666 A.2d 333, 335
(Pa. Super. 1995) (nurse properly testified to standard of care
pertaining to certain acts where she had in fact performed those
acts). “If a witness has any reasonable pretension to specialized
knowledge on the subject under investigation he may testify,
and the weight to be given to his [testimony] is for the jury.”
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Lira, 559 A.2d at 552 (quoting Kuisis v. Baldwin-Lima-
Hamilton Corp., 319 A.2d 914, 924 (Pa. 1974)).
Joyce, 694 A.2d at 654-55 (citations modified); see Toogood, 824 A.2d
at 1149 (“[A] jury of laypersons generally lacks the knowledge to determine
the factual issues of medical causation; the degree of skill, knowledge, and
experience required of the physician; and the breach of the medical standard
of care.”10).11
Conspicuously absent from this appeal is any suggestion by Appellees
that the numerous experts who have provided their opinions in this case on
Appellants’ behalf are unqualified as such to speak on the subjects upon
which they opine, and their respective credentials would militate strongly
against any such challenge. Consequently, the only question is whether
Appellants provided expert evidence that defined a standard of care
requiring reporting to a reasonable degree of medical certainty and asserted
a breach thereof with respect to each Appellee. Appellants provided
voluminous evidence to precisely that effect.
____________________________________________
10
Here, too, it is clear that determining the standard of care is a task
firmly ensconced with the jury, not the court under the guise of satisfying
the threshold question of whether the defendant owed a duty to the plaintiff.
11
With the enactment of Pennsylvania’s Medical Care Availability and
Reduction of Error Act (“MCARE”), 40 P.S. §§ 1303.101, et seq., additional
mandatory qualifying criteria were imposed upon the introduction of such
expert testimony. Because the parties to this matter do not dispute the
qualifications of Appellants’ experts, the MCARE restrictions, which merely
reinforce and give shape to the common-law expert testimony requirement
that preceded MCARE’s May 20, 2002 effective date, are not at issue.
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Eli H. Newberger, M.D., a board-certified pediatrician, Assistant
Professor of Pediatrics at Harvard Medical School, and Adjunct in Pediatrics
at Childen’s Hospital of Boston, rendered a lengthy report that touched upon
the standard of care governing Appellees, reviewed at length the medical
history and records documenting Appellees’ treatment of K.H., and expressly
rendered his opinions as to the standard of care and each physician’s
individual failures to satisfy that standard “to a reasonabl[e] degree of
medical certainty.” Report of Eli H. Newberger, M.D., 7/8/2013, at 2, 23,
attached as Exh. FF to Appellants’ Omnibus Memorandum of Law In
Opposition to All Defendants’ Motion for Summary Judgment (“Appellants’
Omnibus Memorandum”), 9/27/2013 (hereinafter “Newberger Report”).
Dr. Newberger’s account of the standard of care was as follows:
As a matter of background, Pennsylvania’s child reporting
statute was harmonized with the model developed by the
American Bar Association commission on which I served in the
mid-1970’s. Pursuant to the 1973 Federal Child Abuse
Prevention and Treatment Act, prior to their receiving their
monetary shares of the Congressional budgetary allocation for
the National Child Abuse Center in the Department of Health,
Education, and Welfare, states were required to conform their
reporting standards to the Federal model. The threshold for
reporting—reasonable cause or suspicion—was intentionally set
low in order to assure that children would be protected from
subsequent, more severe injuries than those initially reported.
Infant injuries and their frequently fatal or lasting consequences
were a particular focus of concern, and a national training
initiative assured that the reporting requirements and their
rationale were built into the training of medical students,
primary care physicians, and especially, pediatricians. Thus, the
standard of care for physicians in recognition and
reporting of child abuse has been incorporated into the
reporting statutes.
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Newberger Report at 2 (emphasis added).12
Similarly, David Turkewitz, M.D., a board-certified pediatrician and,
inter alia, Chairman of Pediatrics at York Hospital in York, Pennsylvania,
Director of Section Pediatric Emergency Medicine of the Department of
Emergency Medicine,13 and clinical professor of pediatrics at Pennsylvania
State University, averred that, “[i]n order to comply with the standard of
care a physician, particular[ly] a pediatrician, must appropriately recognize
signs and symptoms of abuse, diagnose that abuse, and report that abuse.”
Report of David Turkewitz, M.D., undated, at 2, attached as Exh. HH to
Appellants’ Omnibus Memorandum (hereinafter “Turkewitz Report”).
Dr. Turkewitz elaborated as follows:
[T]he obligation to report a suspicion of child abuse is the
standard of care governing any physician. This duty is also
mandated by statute in Pennsylvania (and elsewhere). A
____________________________________________
12
The language emphasized in this passage and those that immediately
follow is important because, as worded, it suggests that the standard of care
existed separately from, and was later baked into, the model law upon which
the CPSL is founded, not that the statute supplied or supplanted the
standard of care. Moreover, no authority of which we are aware suggests
that, when a statute overlaps or is in conformity with a common-law
standard of care, or vice-versa, that standard of care no longer governs the
physician’s conduct independently of the statute. Even when they entirely
overlap, the different standards of proof governing criminal and civil claims
for failure to report suggest otherwise: Under medical malpractice, a
plaintiff need only establish a negligent breach of the standard of care by a
preponderance of the evidence, while criminal liability, even for the same
alleged conduct, requires proof beyond a reasonable doubt of a “willful”
failure to report.
13
This title is per Dr. Turkewitz’s curriculum vitae.
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reasonable suspicion of abuse is exactly that: if after analysis of
decision[-]making components, there is a reasonable suspicion
of abuse, then the physician has a duty to report under
Pennsylvania mandating reporting requirements which is
encompassed in the standard of care. Reasonable suspicion
by no means requires a high degree of medical certainty. The
threshold for reporting is purposely set low to encourage
reporting of child abuse and to ensure children are protected
from additional abuse which can lead to further injury or death.
The goal is simple—protection of the child. . . . All physicians, in
accordance with the standard of care, must therefore
appropriately appreciate, assess, diagnose, and report signs and
symptoms of abuse.
Id. at 3 (emphasis added).14
In light of this expert evidence, it would be untenable to suggest that
Appellants failed to adduce sufficient evidence to create a genuine issue of
material fact regarding whether Appellees’ standard of care obligated them
to report reasonable suspicions of child abuse to the appropriate authorities,
independently of a similar statutory obligation.
(b) Appellants’ evidence raises a genuine
issue of material fact regarding whether
Appellees breached the governing
standard of care.
We now move on to review Appellants’ experts’ opinions regarding
each Appellee-physician’s performance under the standard of care.
____________________________________________
14
Without exception, the other experts cited below, who are cited, infra,
as attesting that one or more Appellees breached the standard of care,
similarly aver that the standard of care imposes a reporting obligation
independently of the statute requiring same. To cite them all would gild the
lily.
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Shakthi Kumar, M.D.
With respect to Dr. Kumar, Dr. Newberger opined as follows:
[Dr. Kumar] failed multiple times to make mandated reports of
suspected abuse. While she should have reported on September
12, 2002, each new injury thereafter provided even more reason
to report, and her failure to act in accordance with the standard
of care in assessment, diagnosis, and reporting of child abuse
served not only to deny this child the protection that he needed
and deserved, but enabled his abuser to continue to harm him.
Dr. Kumar was at the core of over three months of escalating
injuries to [K.H.] that were all suspicious of [sic] an ongoing
pattern of abuse to the child, as well as concerns by several
other physicians for abuse. Despite this, Dr. Kumar did nothing
to protect the child from further abuse and actually defended
against allegations of abuse by other physicians. This was a
gross deviation from the standard of care that had catastrophic
consequences of additional and more severe abuse that rendered
[K.H.] neurologically devastated.
Newberger Report at 22; see Report of Herschel R. Lessin, M.D., 7/8/2013,
at 12, attached as Exh. LL to Appellant’s Omnibus Memorandum; Report of
Maria McColgan, M.D., 7/8/2013, attached as Exh. JJ to Appellants’ Omnibus
Memorandum (hereinafter “McColgan Report”); Turkewitz Report.
Yvonne Siwek, M.D.
With respect to Dr. Siwek, Dr. Newberger opined as follows:
[Dr. Siwek], Dr. Kumar’s colleague at Lancaster Pediatrics, failed
to report abuse, notwithstanding having written ABUSE in capital
letters on the form in which she documented her visit with the
infant at 2 months of age. She saw evidence of unexplained
fractures that were highly concerning for abuse and failed to
report her suspicions of abuse.
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Newberger Report at 22; see Report of Dan Cohen, M.D., 7/8/2013,
attached as Exh. NN to Appellant’s Omnibus Motion; McColgan Report;
Turkewitz Report.
Donald D. Diverio, Jr., D.O.
With respect to Dr. Diverio, Dr. Newberger opined as follows:
[Dr. Diverio], according to his own account, despite being
informed that the “parents are being investigated for child
abuse” failed to connect the infant’s pain responses over the rib
cage and on being turned to the prone position with his multiple
underlying rib fractures, nor to consider the vectors of force that
would produce rib fractures (violent squeezing of the thorax) and
vertebral compressions (vertical forces from being bounced). He
failed to explore with appropriate additional diagnostic studies
whether there were other signs of osseous trauma. In addition
to failing to properly diagnose abuse in this child, he also failed
to make a mandated report of suspected abuse. The
contemporaneous records of Dr. Kumar and testimony of others
indicated that Dr. Diverio made allegations of abuse to the
family, yet he failed to comply with the standard of care in
reporting his suspicions of abuse.
Newberger Report at 22-23; see Report of Mininder S. Kocher, M.D.,
7/8/2013, attached as Exh. PP to Appellant’s Omnibus Memorandum;
Turkewitz Report.
Julie A. Mack, M.D.
With respect to Dr. Mack, Dr. Newberger opined as follows:
[Dr. Mack] missed important findings on several radiology
studies and failed to pursue with appropriate radiographs her
diagnosis of multiple rib fractures and appeared to advocate for
a benign interpretation of worrisome findings that confused
medical colleagues[,] and[] her actions were a key reason why
the child’s abuse continued to its ultimate tragic ending. She
violated both [LGH’s] policies on child abuse and the
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Pennsylvania mandate to report suspected abuse under the
standard of care and state law.
Id. at 23; see Report of Alan E. Oestreich, M.D., 7/6/2013, attached as Exh.
TT to Appellants’ Omnibus Memorandum; Turkewitz Report.
Gene C. Smigocki, M.D.
With respect to Dr. Smigocki, Dr. Newberger opined as follows:
[Dr. Smigocki] failed to appropriately interpret and report
abnormal findings in a 12/6/06 head ultrasound that were
indicative of abusive head trauma and would have resulted in a
heightened concern for abuse to this child by the clinicians and
reporting, especially in light of the plethora of other injuries
preceding the ultrasound.
Id.; see Report of James J. Abrahams, M.D., 7/8/2013, attached as Exh. VV
to Appellants’ Omnibus Memorandum; Turkewitz Report.
Atilla G. Devenyi, M.D.
With respect to Dr. Devenyi, Dr. Newberger opined as follows:
[Dr. Devenyi] documented a hemorrhagic rash/bruise that
covered the skin from the sternum to the lateral chest wall.
Notwithstanding his explicit concern about the risk of inflicted
injury, documented in the records of Dr. Kumar and manifested
in his ordering both a skeletal x-ray survey and clotting studies,
he improperly acquiesced with Dr. Kumar in cancelling those
studies. Moreover, after his examination and discussion with
Dr. Kumar, Dr. Devenyi failed to make a mandated report of
suspected abuse.
Id.; see Report of Fredric Daum, M.D., 7/8/2013, attached as Exh. RR to
Appellants’ Omnibus Memorandum; Turkewitz Report.
More than enough expert testimony was presented by Appellants to
create a genuine issue of material fact regarding the nature of the relevant
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general and specialist standards of care, independently of the CPSL, as well
as whether each Appellee conformed to those that applied to him or her or
breached the standard, and, in so doing, his or her duty to K.H.15
Accordingly, we turn to Appellants’ evidence in support of damages and
causation.
3. Appellants have provided ample evidence to
raise a jury question with respect to damages.
Because the adequacy of Appellants’ proffered expert evidence
regarding the nature and scope of Appellants’ damages has not been
challenged on appeal, it is not necessary to address this issue at length. In
the interests of comprehensiveness, we simply note that Appellants
____________________________________________
15
Appellees make much of the proposition that they had no duty to third
parties, or to control third parties. However, it is clearly the case that the
duty asserted by Appellants was Appellees’ duty to K.H., which, at least in
its broadest strokes, cannot be disputed. Appellees also argue at length that
their duty extends only to diagnosis and treatment, and does not reach any
obligation to report, a proposition flatly contradicted by several of
Appellants’ experts. See, e.g., Brief for Smigocki at 31-33. Moreover, other
cases, albeit distinguishable in various particulars, have established that a
physician’s duty to a patient or, in certain narrow circumstances, to a third
party, may reach outside the examination room. See Emerich, 720 A.2d
1032 (holding that a mental health professional has a duty to warn a third
party of a patient’s threat to harm the third party); DiMarco v.Lynch
Homes—Chester County, Inc., 583 A.2d 422 (Pa. 1990) (permitting suit
against physician by a third party who contracts a communicable disease
when third party establishes that he contracted disease due to physician’s
erroneous advice to patient). Thus, it is clear that the precise scope of a
physician’s duty to a patient (and to others) is more complex than any of
Appellees’ arguments would allow, and can be extended to matters affecting
the public interest that fall outside the narrow bounds of diagnosis and
treatment of the maladies presented by a given patient.
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furnished several reports from qualified experts attesting in detail to the
necessities of K.H.’s ongoing care, K.H.’s medical prognosis, and the costs
Appellants will incur in attending to his needs. See Report of David L.
Hopkins, 7/8/2013, attached as Exh. III to Appellant’s Omnibus
Memorandum (actuarial cost estimate); Report of B.A. McGettigan, R.N.,
7/7/2013, attached as Exh. GGG to Appellants’ Omnibus Memorandum
(home care analysis and cost estimate); Reports of Thomas Rugino, M.D.,
12/8/2012, 7/6/2013, and 7/8/2013, Attached respectively as Exhs. XX, YY,
and ZZ to Appellants’ Omnibus Memorandum (medical analysis and
prognosis).
4. Appellants’ evidence raises a genuine issue of
material fact regarding whether Appellees’
alleged breach of their respective standards of
care caused K.H.’s damages.
We now examine whether Appellants provided a prima facie showing
that Appellees’ alleged breaches of the applicable standards of care caused
K.H.’s injuries. The trial court did not believe so, reasoning as follows:
[E]ven if [Appellees] owed a duty to [K.H.] to report a
reasonable suspicion that he was a victim of abuse, under the
circumstances of this case there is insufficient evidence of
causation for [Appellants’] negligence claims to proceed. In a
medical malpractice suit for negligence, the expert testimony
requirement “means that a plaintiff must present medical expert
testimony to establish that the care and treatment of the plaintiff
by the defendant fell short of the required standards of care and
that the breach proximately caused the plaintiff’s injury.”
Toogood, 824 A.2d at 1145. . . . An expert may not base his
opinion regarding causation on mere speculation or conjecture.
Instead,
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[w]hen a party must prove causation through expert
testimony[,] the expert must testify with “reasonable
certainty” that “in his professional opinion, the result in
question did come from the cause alleged[.”] An expert
fails this standard of certainty if he testifies that the
alleged cause “possibly[,”] or “could have” led to the
result, that it “could very properly account” for the result,
or even that it was “very highly probable” that it caused
the result.
Kovach v. Cent. Trucking, Inc., 808 A.2d 958, 959-60
(Pa. Super. 2002) (citing Cohen v. Albert Einstein Med. Ctr.,
N. Div., 592 A.2d 720, 723-24 (Pa. Super. 1991)).
In the case at bar, [Appellants] cannot establish to a reasonable
degree of medical certainty that [Appellees’] failure to report
their alleged suspicions that [K.H.] was a victim of child abuse
caused his injuries on December 18, 2002. [K.H.] was not
injured as a result of any of the treatment he was given by
[Appellees]. Rather, [Appellants] allege that [Appellees] were
negligent merely for failing to discover and report the non-
medical source of [K.H.’s] condition. Even if [Appellees] had
reported a suspicion of child abuse to the appropriate
authorities, there is no way to prove that Lancaster County
Children and Youth Services would have definitely intervened
and removed [K.H.] from his home. Suggesting that
[Appellees’] failure to report the abuse “could very [probably]”
account for [K.H.’s] injuries is insufficient as a matter of law.
[Appellants] are required to demonstrate to a reasonable degree
of medical certainty that [Appellees] caused [K.H.’s] injuries,
which they are unable to do in this case without engaging in
speculation and conjecture.
T.C.O. at 20-21 (citations modified).
The trial court’s recitation of the standard is incomplete, because it
wholly neglects to acknowledge, and arguably contravenes, Pennsylvania
case law recognizing the relaxed burden of proof reserved for cases in which
it would be unreasonable and inequitable to demand that a plaintiff provide
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conclusive evidence that the defendant is the direct and exclusive cause of
the harm alleged. This Court has explained as follows:
In Hamil v. Bashline, our Supreme Court adopted the relaxed
“increased-risk-of-harm” standard for use in certain medical
malpractice claims. 392 A.2d 1280, 1288 (Pa. 1978). In
adopting this principle, the Hamil Court reasoned:
In light of our interpretation of [subs]ection 323(a),[ 16] it
follows that where medical causation is a factor in a case
coming within that Section,[17] it is not necessary that the
plaintiff introduce medical evidence in addition to that
already adduced to prove defendant’s conduct increased
the risk of harm—to establish that the negligence asserted
resulted in plaintiff’s injury. Rather, once the jury is
apprised of the likelihood that defendant’s conduct resulted
in plaintiff’s harm, [subsection 323(a)] leaves to the jury,
and not the medical expert, the task of balancing
probabilities.
Hamil, 392 A.2d at 1288. Subsequently, our high court
explained:
____________________________________________
16
Negligent Performance of Undertaking to Render Services
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of
such harm . . . .
Restatement (Second) of Torts § 323(a).
17
We have held that subsection 323(a) applies, inter alia, to failure-to-
diagnose cases. See Jones v. Montefiore Hosp., 431 A.2d 920, 925
(Pa. 1981) (citing Gradel v. Inouye, 421 A.2d 674 (Pa. 1980)). We can
conceive of no reason why it would not apply in this case, which involves
both failure-to-diagnose and failure-to-report claims.
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An example of this type of case is a failure of a physician
to timely diagnose breast cancer. Although timely
detection of breast cancer may well reduce the likelihood
that the patient will have a terminal result, even with
timely detection and optimal treatment, a certain
percentage of patients unfortunately will succumb to the
disease. This statistical factor, however, does not preclude
a plaintiff from prevailing in a lawsuit. Rather, once there
is testimony that there was a failure to detect the cancer in
a timely fashion, and such failure increased the risk that
the woman would have either a shortened life expectancy
or suffered harm, then it is a question for the jury whether
they believe, by a preponderance of the evidence, that the
acts or omissions of the physician were a substantial factor
in bringing about the harm. See Jones v. Montefiore
Hosp., 431 A.2d 920 (Pa. 1981).
Mitzelfelt, 584 A.2d at 892; see Smith v. Grab, 705 A.2d 894,
899 (Pa. Super. 1997) (stating expert’s testimony demonstrating
increased risk of harm “furnishes a basis for the fact-finder to go
further and find that such increased risk of harm was in turn a
substantial factor in bringing about the resultant harm”) (quoting
Hamil, supra).
Accordingly, in cases where the plaintiff has introduced sufficient
evidence that the defendant’s conduct increased the risk of
injury, the defendant will not avoid liability merely because the
plaintiff’s medical expert was unable to testify with certainty that
the defendant’s conduct caused the actual harm. Montgomery
v. S. Phila. Med. Grp., Inc., 656 A.2d 1385, 1392
(Pa. Super. 1995) (citing Mitzelfelt, supra). The trial court may
send the issue of causation to the jury “upon a less than normal
threshold of proof” as long as reasonable minds could conclude
that a preponderance of the evidence shows the defendant’s
conduct was a substantial factor in causing the resulting harm.
Id. The determination then rests with the jury. Mitzelfelt,
supra; Montgomery, supra at 1391 (citing Jones, supra).
Carrozza v. Greenbaum, 866 A.2d 369, 380-81 (Pa. Super. 2004), aff'd on
other grounds, 916 A.2d 553 (Pa. 2007) (footnote omitted; citations
modified; all emphasis as rendered in Carrozza); see Vogelsberger v.
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Magee-Womens Hosp. of UPMC Health Sys., 903 A.2d 540, 563-64
(Pa. Super. 2006) (“Once there is sufficient testimony to establish that
(1) the [health care provider] failed to exercise reasonable care, that
(2) such failure increased the risk of physical harm to the plaintiff, and
(3) such harm did in fact occur, then it is a question properly left to the jury
to decide whether the acts or omissions were the proximate cause of the
injury. The jury, not the medical expert, then has the duty to balance
probabilities and decide whether defendant’s negligence was a substantial
factor in bringing about the harm.”).
In reliance upon Hamil and other decisions, this Court further has held
that “[a] defendant cannot escape liability because there was a statistical
possibility that the harm could have resulted without negligence.”
Montgomery v. S. Phila. Med. Grp., Inc., 656 A.2d 1385, 1392
(Pa. Super. 1995). The concurrence of a contributing cause with the
negligence at issue in a given case “does not relieve the defendant from
liability unless he can show that such other cause would have produced the
injury independently of his negligence.” Id. (internal quotation marks
omitted); accord Kearns v. Clark, 493 A.2d 1358, 1361 (Pa. Super. 1985);
Brozana v. Flanigan, 454 A.2d 1125, 1128 (Pa. Super. 1983) (approving
jury charge that informed the jury that it could find liability if the defendant’s
negligence “either was a substantial factor in bringing about the loss of
appellant’s leg or increased the risk of losing the leg and that increased risk
was a substantial factor in the loss of the leg”).
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Several of Appellants’ experts in this case have opined to a reasonable
degree of medical certainty, and without obvious resort to pure conjecture,
that Appellees’ alleged breaches of their standards of care over a period of
approximately three months substantially increased K.H.’s risk of harm.18
Moreover, we have the highly detailed account provided by Larry
Breitenstein, Ph.D., an expert with extensive credentials in social work
focusing upon child abuse and child neglect, who, in preparing his doctoral
____________________________________________
18
See, e.g., Newberger Report at 15 (“Dr. Kumar’s and Dr. Siwek’s
deviations from the standard of care in assessment, diagnoses, and
reporting of child abuse on September 12, 2002, increased the risk of harm
of further abuse to [K.H.] and were a substantial contributing factor in him
suffering a permanent and catastrophic brain injury.”), 16 (“Dr. Mack’s and
Dr. Kumar’s conduct in connection with the 9/12/02 skeletal survey deviated
from the standard of care, increased the risk of harm to K.H., and was a
substantial contributing factor to K.H. suffering further abuse [that] resulted
in a severe and irreversible brain injury.”), 17 (“Dr. Devenyi’s failure to
report his suspicion of abuse on October 2, 2002 or anytime thereafter was a
deviation in the standard of care that increased the risk of harm to [K.H.]
and was a substantial contributing factor to him suffering further abuse and
a permanent brain injury.”), 21 (“[D]ue to the missed interpretation of the
ultrasound by Dr. Smigocki, [K.H.] was denied one final opportunity to avoid
the continued abuse that culminated in the permanent brain injury . . . .”),
22-23 (noting that Dr. Diverio failed to comply with the standard of care in
reporting his suspicions of abuse, and opining that “[a]ll of the
aforementioned deviations in the standard of care by [K.H.’s] providers in
the diagnosis of child abuse and the failure to report suspicions of abuse
increased the risk of harm and were substantial contributing factors in
[K.H.’s] enduring further and more severe abuse and increased the risk of
harm of him suffering an abusive head injury, which he went on to suffer”;
adding that, “[h]ad abuse been appropriately diagnosed and reported by any
of [Appellees] at any time prior to December 18, 2002[,] an appropriate
investigation of the abuse would have occurred and [K.H.] would have been
in a safe environment [free] from any further abusive trauma”).
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dissertation, examined “nearly two hundred thousand Pennsylvania child
abuse and neglect reports,” and who served for fifteen years as director of
Westmoreland County’s Children’s Bureau, handling reports of abuse like
those not made in this case between September and December of 2002.
See Report of Larry Breitenstein, Ph.D., 7/8/2013, at 1, attached as Exh.
EEE to Appellants’ Omnibus Memorandum (hereinafter “Breitenstein
Report”). Highlights of Dr. Breitenstein’s report include his opinion, “based
on [his] training, expertise and knowledge handling child abuse cases, [that]
the obvious signs and symptoms of child abuse to [K.H.] that were missed
by this child’s physicians . . . [were] as troublesome as [he has] seen in
[his] career.” Id. at 2. In a detailed account of the procedures prescribed
for children and youth agencies who receive a report of abuse featuring
symptoms such as those at issue in this case even as early as September 9,
2002, Dr. Breitenstein opined that an investigation would have been
conducted within twenty-four hours of the report; the case would have been
designated “high risk” in light of K.H.’s age and the nature of his injuries;
and the investigation would have “involved immediately going to the location
of the child.” Id. at 4. Because the suspected abuse involved “serious
physical injury,” Dr. Breitenstein indicated, the children and youth agency
“would also have notified the District Attorney,” and “a detective or other
law enforcement officer designated by the county district attorney would
have collaborated with [Children and Youth Services (“CYS”)] and been
involved with the interviews and the investigation.” Id. Moreover, “[g]iven
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that the parents were the primary persons that cared for the child, their
interviews would have been extensive and comprehensive to determine if
they were the abuser [sic].” Id. at 5.
Dr. Breitenstein’s lengthy report addressed directly why it was his
expert opinion, to a reasonable degree of professional certainty, that K.H.’s
catastrophic brain injury would have been prevented had an appropriate
report been made by one or more of K.H.’s physicians between September
and December 2002:
The [CPSL] provides remedies to protect children even if the
perpetrator is unknown. The CPSL provides that the child may
be taken into custody pursuant to a court order or by a law
enforcement officer or duly authorized court officer if there are
reasonable grounds to believe that the child is suffering from
illness or injury or is in imminent danger from his surroundings
and his removal is necessary. From September 9, 2002 until
December 18, 2002, [K.H.] suffered from severe injuries (rib
fractures, vertebral compressions, rapid increase in head size, as
well as bruising and scratches) and given his age and
vulnerability to future abuse he would certainly be considered to
be in imminent danger. Therefore, either the investigating
officer or detective would have taken protective custody or
the CYS worker would have sought a court order for
protective custody if the perpetrator was unknown and/or
had not been arrested.
Id. at 5 (emphasis added). Given Dr. Breitenstein’s credentials, experience,
and the detail and certainty with which he asserted his conclusions regarding
causation, the trial court’s conclusion that, “[e]ven if [Appellees] had
reported a suspicion of child abuse to the appropriate authorities, there is no
way to prove that [CYS] would have definitely intervened,” T.C.O. at 21,
appears to us to be a patent usurpation upon the sort of determination of
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fact that belongs with a jury. Dr. Breitenstein outlined what he
characterized as mandatory protocols observed by children and youth
agencies in every county in Pennsylvania that essentially guaranteed some
significant degree of intervention upon a report of K.H.’s symptoms.19
____________________________________________
19
Appellees, Dr. Kumar in particular, attempt to cast Dr. Breitenstein’s
testimony as wholly conjectural, opining that he cannot presume to know
how CYS would have responded to a report under these circumstances. The
strongest rebuttal of this argument is Dr. Breitenstein’s report, which not
only outlines his extensive experience in responding to these requests, but
also outlines mandatory events that would follow a report of this nature as
well as testifying with a reasonable degree of professional certainty that
proper reports in this case would have resulted in a heightened degree of
scrutiny, and a more rapid response, then reports of lesser harm.
Furthermore, Dr. Kumar’s resort to Kovach v. Central Trucking, Inc., 808
A.2d 958 (Pa. Super. 2002), for the proposition that “no matter how skilled
or experienced the expert witness may be, he will not be permitted to guess
or to state a judgment based on mere conjecture,” does her argument no
favors, given our ruling in that case. See Brief for Kumar at 32 (quoting
Kovach, 808 A.2d at 959). In Kovach, we reversed a trial court ruling
excluding a physician-expert’s testimony upon the basis that it was
speculative. Specifically, we determined that the trial court should not have
excluded the expert’s testimony regarding whether the accident sued-upon
resulted in the plaintiff’s knee injuries, even though the expert admitted that
he could not be certain about the condition of the plaintiff’s knees before the
accident, or whether the injuries complained of were entirely a result of the
accident or constituted an aggravation of a pre-existing injury. Nonetheless,
because the expert testified to a reasonable degree of medical certainty that
the accident had been a substantial cause, if not the only cause, of the
plaintiff’s injuries, we ruled that the trial court should have admitted the
testimony. 808 A.2d at 959-61. We read Dr. Breitenstein’s testimony as
neither less certain nor more qualified or conjectural than the expert’s in
Kovach. Consequently, his testimony certainly provided sufficient support
with regard to causation to avoid summary judgment in the instant case.
Dr. Siwek also attacks the sufficiency of Dr. Breitenstein’s testimony.
However, she does so almost entirely by quibbling with the assertions
therein. See Brief for Siwek at 15-18. Dr. Siwek’s alternative view of the
case has no place in a summary judgment proceeding; to the extent that we
(Footnote Continued Next Page)
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In light of the liberal standard Pennsylvania courts are directed by
Hamil and its progeny to apply to increased-risk-of-harm cases where direct
causation cannot be established, and Appellants’ voluminous evidence,
stated to a reasonable degree of medical or professional certainty, that
Appellees’ acts or omissions substantially increased K.H.’s risk of harm, the
trial court simply applied too rigid a standard in finding that Appellants’
evidence of causation was so speculative as to warrant dismissal. To the
contrary, the causation evidence submitted by Appellants for precisely that
purpose was a model of the sort of evidence that Hamil deemed sufficient to
support a prima facie case of medical negligence. Consequently, the trial
court erred when it found Appellants’ causation evidence wanting.20
Having found, supra, that Appellants’ showings also were adequate to
establish jury questions regarding all four elements of medical malpractice,
we conclude that the trial court erred in entering summary judgment in
favor of Appellees.
D. Appellants’ Entitlement to a Jury Instruction Regarding
Negligence Per Se Is Moot.
_______________________
(Footnote Continued)
deem Dr. Breitenstein’s testimony to have been sufficiently certain to reach
a jury, we need only consider that testimony, viewing it in the light most
favorable to the Appellants.
20
The trial court’s erroneous conclusions follow in part from a question-
begging premise. In ruling that K.H. “was not injured as a result of any
treatment,” the court implicitly assumed that the standard of care entails
only clinical treatment, and does not require reporting suspicions of abuse,
which we have found involves a fact question to be determined by a jury.
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We now turn to Appellants’ third issue. Appellants contend that the
trial court erred in determining that they are not entitled to a negligence per
se jury instruction on the grounds that Appellees’ violation of the CPSL,
without more, would suffice to establish a breach of Appellees’ duty for
purposes of setting forth claims of medical malpractice, leaving the jury after
such a finding to assess only proximate causation and damages. We need
not resolve this issue, for two reasons.
First, whether to provide a negligence per se instruction is not typically
a matter that is disposed of in a motion for summary judgment, insofar as
its propriety most often is a matter to be measured against the evidence
adduced at trial. Second, the trial court’s ruling on this matter was based in
part upon premises that we have rejected above. Thus, the court may rule
differently in light of our analysis of those premises and the parties’
presentations of the evidence at trial. Because this issue was prematurely
addressed, and presently is moot, we leave its final disposition for the trial
court in the first instance, without prejudice to Appellants’ entitlement to
raise the issue in a future post-trial appeal, should the trial court again
reject their request for such an instruction.
E. Appellants Have Set Forth a Cognizable Claim for
Corporate Negligence Against LGH.
Finally, we consider Appellants’ argument that the trial court erred in
dismissing their claims against LGH for corporate negligence. The following
standard governs:
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Corporate negligence is a doctrine under which the hospital is
liable if it fails to uphold the proper standard of care owed the
patient, which is to ensure the patient’s safety and well-being
while at the hospital. This theory of liability creates a
nondelegable duty which the hospital owes directly to a patient.
Therefore, an injured party does not have to rely on and
establish the negligence of a third party.
The hospital’s duties have been classified into four general
areas: (1) a duty to use reasonable care in the maintenance of
safe and adequate facilities and equipment—Chandler Gen.
Hosp. Inc. v. Purvis, 181 S.E.2d 77 (Ga. Ct. App. 1971); (2) a
duty to select and retain only competent physicians—Johnson
v. Misericordia Comm. Hosp., 301 N.W.2d 156 (Wis. 1981);
(3) a duty to oversee all persons who practice medicine within its
walls as to patient care—Darling v. Charleston Comm. Mem.
Hosp., 211 N.E.2d 253 (Ill. 1965); and (4) a duty to formulate,
adopt and enforce adequate rules and policies to ensure quality
care for the patients—Wood v. Samaritan Institution, Inc.,
161 P.2d 556 (Cal. Ct. App. 1945); see Comment, The Hospital-
Physician Relationship: Hospital Responsibility for Malpractice of
Physicians, 50 Wash.L.Rev. 385 (1975); Note, Medical
Malpractice—Ostensible Agency & Corporate Negligence, 17 St.
Mary’s L.J. 551 (1986).
Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991) (citations
modified; footnote omitted); see Scampone v. Highland Park Care Ctr.,
LLC, 57 A.3d 582, 597-98 (Pa. 2012).
Appellants’ claims hinge upon their claim that LGH failed to have
appropriate policies in place for the retention and availability of patients’
prior radiological studies and failed to retain adequately qualified physicians
to read pediatric radiographs. The trial court rejected these claims for the
following reasons:
[Appellants’ claim regarding retention of radiographs] falls under
the hospital’s duty to “adopt and enforce rules and policies to
ensure quality care for the patient[.” Appellants] have failed to
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produce any specific policies or procedures that address LGH’s
method for storing and organizing patients’ past radiological
studies. Moreover, neither [Appellants], nor Dr. Oestreich in his
report, claim that having had access to [K.H.’s] prior studies
would have assisted Dr. Mack and Dr. Smigocki in interpreting
the radiographic studies in question. Instead, Dr. Oestreich
asserts that the studies would have assisted the radiologists in
diagnosing child abuse. Since the [trial c]ourt has already
determined that Pennsylvania does not impose a duty upon
physicians to report suspected child abuse, even if Drs. Mack
and Smigocki had determined that [K.H.] was being abused,
they would not have been under a statutory or common[-]law
duty to report it.
Finally, [Appellants] assert that, in employing Dr. Mack, LGH
“failed to employ a pediatric radiologist [who] was adequately
trained, experienced and qualified in reading pediatric
radiographs and the recognition of abuse[.”] (Oestreich Report,
[Appellants’] Exhibit TT [to Omnibus Memorandum].)
Specifically, Appellants point to the fact that, in her deposition
testimony, Dr. Mack stated that she primarily read breast
imaging studies, was the chief of the mammography section, and
did not have a special[ty] in reading pediatric radiographs. As
demonstrated by her Curriculum Vitae, Dr. Mack completed a
Pediatric Radiology Fellowship at Children’s Medical Center in
Dallas, Texas[,] from 1994 to 1995. . . . Additionally, she is
Board Certified in Radiology with a “Certificate of Added
Qualifications in Pediatric Radiology[.”] Given these credentials,
there is absolutely no question that Dr. Mack was qualified to
read K.H.’s studies.
T.C.O. at 26.
We begin with the trial court’s latter rationale. In response to the
determination that “there is absolutely no question that Dr. Mack was
qualified to read [K.H.’s] studies,” Appellant argues that the trial court
essentially resolved a material question of fact best left to the jury in
accepting Dr. Mack’s CV as evidence conclusive of her qualifications despite
Dr. Mack’s testimony that her principal responsibilities at the relevant time
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involved mammography rather than pediatric radiology. The trial court
provided no additional support to suggest that this was a determination
appropriately resolved by the court rather than by a jury. However strongly
Dr. Mack’s CV might militate in favor of finding that she was qualified, we
find no principled basis not to have allowed the jury to resolve the
discrepancy. On summary judgment, as our governing standard makes
clear, all doubts are to be resolved in favor of the non-moving party. The
trial court’s conclusion in this regard is inconsistent with the governing
standard. Accordingly, to the extent the trial court’s ruling on corporate
negligence depended on this finding, we reject it.
With respect to the trial court’s first rationale, Appellants aptly note
that the trial court expressly relied upon its own finding that no civil remedy
for a failure to reporting child abuse would lie under the CPSL or the
common law. Insofar as we have rejected the trial court’s ruling in this
regard, that rationale will not stand.
Appellants further argue that the trial court’s determination that they
“failed to produce any specific policies or procedures that address LGH’s
method for storing and organizing patients’ past radiological studies” proves,
rather than undermines, their claim, insofar as their allegations that LGH
was negligent inhered in the absence of such policies.
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In support of this claim, Appellants cite the following exchange from
Dr. Smigocki’s deposition testimony:21
Q. Is there somebody in your office that you would ask or—
A. Our office? No. It would be a hospital record.
Q. Is there somebody at the hospital that you would ask?
A. The film library.
Q. Is there a person that’s currently a custodian or at the film
library that you would ask?
A. No.
Q. When you reviewed and interpreted the December 6th,
2002, ultrasound, you had whatever information was written on
the order form; correct?
A. I would assume.
Q. Okay. And you also had any previous studies; correct?
A. Possibly.
Q. Why do you say “possibly”?
A. Well, previous studies are not always available.
Q. Okay. And what are the range of reasons why they
wouldn’t be available?
A. Sometimes they can’t be located. Sometimes—
Q. Like, if they’re lost?
A. They could be lost. They could be misplaced. They could
be in a referring clinician’s trunk.
____________________________________________
21
This excerpt starts in medias res, a product of Appellants’ election to
attach only excerpts of the deposition transcript to their Omnibus
Memorandum. However, there is sufficient context to understand the thrust
of Appellants’ contentions and the degree to which Dr. Smigocki’s testimony
supports them.
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Q. If they were lost or misplaced or in a referring clinician’s
trunk, there would still be a record of the fact that they had
existed; correct?
A. Presumably.
Q. Okay. So you would have available to you at least a list of
what previous studies there were.
A. Yes.
Q. And if it turned out that you wanted to review a previous
study, but it wasn’t in the—it would have been electronic or in
the film jacket?
A. I don’t know how it was back in 2002.
Notes of Deposition Testimony—Gene Smigocki, 10/4/2012, at 85-86.
Even if we assume that this testimony, standing alone, provides only
limited support for the proposition that LGH did not have an appropriate
records policy, one that might have enabled Drs. Mack or Smigocki to
conduct a clinically appropriate comparative review of K.H.’s radiographs
with former studies, once again it usurps the trial court’s function to pass
judgment on the weight of this evidence in reviewing a motion for summary
judgment. This testimony provides a modicum of support for the proposition
that LGH’s records policy was either inadequate, or inadequately conveyed
to physicians with LGH privileges, such that corporate negligence might lie
for a breach of LGH’s “duty to formulate, adopt and enforce adequate rules
and policies to ensure quality care for the patients.” See Thompson, 591
A.2d at 707. In his report, Dr. Oestreich noted that it was “unfortunate that
Dr. Mack failed to review the chest x-ray from [K.H.’s] birth. To the extent
that it was not made available to her, the hospital/practice group should
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have had a practice in place for the prior films to be available for review.”
Oestreich Report at 8. This, viewed in tandem with Dr. Smigocki’s equivocal
testimony regarding LGH’s policies for retaining prior scans, sufficed to
create a genuine issue of material fact, such that it was error for the trial
court to grant summary judgment to LGH relative to Appellants’ claims for
corporate negligence.
III. Conclusion
In its contemporary form, the Hippocratic Oath sworn by aspiring
physicians in the United States provides, inter alia, that “I will remember
that I do not treat a fever chart, a cancerous growth, but a sick human
being, whose illness may affect the person’s family and economic stability.
My responsibility includes these related problems, if I am to care adequately
for the sick.” The Oath also provides that “I will prevent disease whenever I
can, for prevention is preferable to cure.” In its archaic form, the Oath also
provided that “I will keep [the sick] from harm and injustice.”22
These sound sentiments are embodied in the CPSL, it is true, but the
potential harm that may befall children when their physicians fail to behave
according to professional reporting requirements vastly exceeds the harm
inuring to the public. Children, like all individuals, find legal protection, and
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22
For all quotations, see Bioethics, Johns Hopkins Sheradan Libraries &
University Museums, available at guides.library.jhu.edu/c.php?g=
202502&p=1335752 (last reviewed June 26, 2015).
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grounds for civil recourse, whenever a physician violates his or her duty of
care. That duty of care is determined not by the General Assembly but by
the community of physicians. Irrespective of whether the legislature
intended to imply a private right of action under the CPSL, it beggars belief
that, in enacting that statute, the General Assembly intended to immunize
from civil redress violations of the standard of care so severe that the
legislature deemed them worthy of criminal punishment. The anomaly is
cast into relief even more stark when one considers that civil redress
undisputedly remains available for far less egregious violations of that
standard of care.
We need not address on this day whether the CPSL itself furnishes
such a remedy; Appellants do not argue that it does. Indeed, today we need
not decide whether, as Appellants allege, Appellees serially violated the
standard of care in passing K.H. amongst themselves while repeatedly
setting aside concerns that he was the victim of abuse. Nor need we decide
whether, in so doing, Appellees caused the crippling harm that eventually
befell K.H. at the hands of his biological father’s continuing abuse. Indeed,
the essence of our ruling is that it is not our place, nor that of the trial
judge, to do so. We need decide only whether the trial court improperly
intruded upon Appellants’ right to have a jury hear testimony regarding the
independent obligations of the standard of care and testimony to the effect
that such violations, if any, substantially increased K.H.’s risk of harm over
the several months that K.H. presented to the various Appellees, allegedly
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with tell-tale signs of continuing abuse the nature of which was readily
detectable by those physicians. The trial court did precisely that, in violation
of the governing standard.
Specifically, the trial court improperly ruled that Appellants failed to
present a prima facie case of medical malpractice against all six named
Appellees who undertook K.H.’s care from September to December of 2002.
This includes both Appellants’ claims of malpractice predicated on the
failures to report suspicions of abuse as well as their claims against Dr. Mack
and Dr. Smigocki, and the vicarious liability of Lancaster Radiology and LGH,
for malpractice associated with their review of K.H.’s radiographs.23 We also
find that Appellants have set forth a prima facie case of corporate negligence
against LGH. Finally, we find that any decision regarding the propriety of a
negligence per se instruction would be premature and advisory, insofar as
our other disposition and analyses of related issues render the matter moot
at this time.
For the foregoing reasons, we reverse in all aspects the trial court’s
entry of summary judgment for Appellees and its dismissal with prejudice of
____________________________________________
23
Because the trial court’s dismissal of these claims was based upon its
finding that Appellants could not seek damages for the failure to report that
Appellants allege was, in part, a consequence of Drs. Mack and Smigocki’s
malpractice in this regard, our ruling that such claims will lie renders the
trial court’s disposition of these claims erroneous.
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Appellants’ amended complaint, and we remand for further proceedings
consistent with this opinion.
Judgment reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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