Schweigart, J. v. Schmalenberger M.D., K. ( 2021 )

J-S10016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JACQUELINE SCHWEIGART : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KEVIN SCHMALENBERGER, M.D. AND : No. 1226 MDA 2020
WEST SHORE ANESTHESIA :
ASSOCIATES :
Appeal from the Order Dated August 19, 2020
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2015-06598
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 02, 2021
Jacqueline Schweigart appeals from the order granting summary
judgment in favor of Kevin Schmalenberger, M.D., and West Shore Anesthesia
Associates (“West Shore”). We affirm.
The trial court set forth the factual and procedural history, which we
incorporate herein. Trial Ct. Op., filed Aug. 19, 2020, at 1-3 (“1925(a) Op.”).
We will briefly summarize the facts. Schweigart underwent hip replacement
surgery at Holy Spirit Hospital in December 2013. Dr. Schmalenberger, an
employee of West Shore Anesthesia Associates, was her anesthesiologist. At
some point after she woke up, Schweigart looked on her phone and saw that
someone had sent her a photograph of herself. The photograph was taken
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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before surgery and depicted her lying on her back in her hospital bed, in a
hospital gown, looking at the camera and sticking her tongue out at the
photographer. She tried calling the phone number that had sent the message.
Dep. of Schweigart, N.T., 12/27/18, at 46. No one answered the phone, the
answering message did not identify the phone’s owner, and she did not leave
a message. Id. at 46-47. She later learned Dr. Schmalenberger had sent the
picture. Dr. Schmalenberger testified at his deposition that he sent the picture,
as it was sent from his phone number, but he does not remember doing so.
Dep. of Schmalenberger, N.T., 5/13/19, at 12, 14. He further testified that he
has in the past taken photographs of patients and sent the photograph to the
patient’s phone when the patient has requested. Id. at 22. When he has done
this, he has immediately deleted the photograph from his phone after sending
it. Id.
Schweigart instituted this suit in December 2015, and in her Amended
Complaint asserted claims of negligence, invasion of privacy, intentional
infliction of emotional distress, breach of physician-patient confidentiality, and
gross negligence. In the negligence count, Schweigart alleged Dr.
Schmalenberger owed a duty of care to his patient Schweigart, breached that
duty by taking and sending the photograph, and the breach caused harm.
Schweigart did not file a certificate of merit, but rather a certificate stating,
“the expert testimony of a Licensed Professional is unnecessary for
prosecution of the claim(s) raised in the Complaint.” Certificate of Counsel,
filed Nov. 29, 2016. In the breach of physician-patient confidentiality count,
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Schweigart alleged Dr. Schmalenberger took the unauthorized photograph,
anonymously sent it to Schweigart, transmitted it “using a series of cellular
networks, wifi-networks that were both closed and open,” and still possessed
the photograph. Complaint at ¶¶ 42-44.
Schweigart claims that as a result of receiving the photo, she is afraid
to leave her home and no longer does activities that she used to enjoy. She
stated that she is afraid that Dr. Schmalenberger “would put her to sleep and
I’d never wake up again.” Dep. of Schweigart, N.T., 12/27/18, at 77. She is
medicated for depression and attends counseling. Plaintiff has a history of
head and neck injuries, spine surgery, hip replacement, shoulder surgery,
frequent headaches, Lyme disease, and was previously treated for depression
with medication. She sustained injuries in a car accident that occurred in 1986
that resulted in her receiving Social Security disability payments since around
1986.
Following discovery, Appellees filed a motion for summary judgment,
which the trial court granted. Schweigart filed a notice of appeal.
Schweigart raises the following issues:
1. Whether the trial court abused its discretion and
otherwise committed an error of law when it granted
[Appellants’] motion for summary judgment as to Count I -
Negligence on the grounds that expert testimony of a
Licensed Professional is necessary for prosecution of the
claim and determining the specific cause of [Schweigart’s]
medical conditions in this case will require the finder of fact
to thoroughly examine [Schweigart’s] medical records and
determine the cause of each and every diagnosis, something
that is neither simple nor obvious, and thus beyond the
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scope of the exception to the medical expert requirement,
when [Schweigart] posits that normal ‘expert’ testimony is
not necessary as the conduct of [Dr. Schmalenberger] is so
far outside the standard of care that her testimony would be
sufficient to establish each and every element of negligence,
and when it is clear that Ms. Schweigart has a lengthy
medical history and per her deposition, she possesses more
expertise of her condition and its toll upon her than the
ordinary range of experience, and when the actions of [Dr.
Schmalenberger] on their face are a breach of the standard
of care due any patient of a physician or their employer.
2. Whether the trial court abused its discretion and
otherwise committed an error of law when it granted
[Appellants’] motion for summary judgment as to Count IV
- Breach of Physician-Patient Confidentiality on the grounds
by stating that it did not subscribe to [Schweigart’s] belief
that someone could have intercepted the photo through
open wifi or cellular networks, when Ms. Schweigart has
clearly stated how she was damaged by the photo being
taken and then anonymously transmitted to her while she
lay alone in a recovery room.
3. Whether the trial court abused its discretion and
otherwise committed an error of law when it granted
[Appellants’] motion for summary judgment as to Count III
- Intentional Infliction of Emotional Distress on the grounds
that Schmalenberger’s actions were hardly outrageous or
extreme “beyond all bounds of decency.” When
[Schweigart] can prove, by her own testimony a causal link
between the photographs and the fear, apprehension, terror
and emotional damage she suffered immediately after and
continues to suffer as a direct result of [Dr.
Schmalenberger’s] actions and inaction.
4. Whether the trial court abused its discretion and
otherwise committed an error of law when it granted
[Appellants’] motion for summary judgment as to Count V -
Gross Negligence and punitive damages on the grounds that
[Schweigart] “cannot show that [Dr.] Schmalenberger acted
with the state of mind necessary to show gross negligence,
let alone recklessness...that there were simply too many
unknowns”, when Ms. Schweigart has established at
minimum that some of the injuries complained of are a
direct result of the actions or inactions of [Dr.
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Schmalenberger] while she was under their sole care and
concern.
5. Whether the trial court abused its discretion and
otherwise committed an error of law when it granted
[Appellants’] motion for summary judgment as to the claims
against Defendant West Shore Anesthesia Associates on the
grounds that they have dismissed all claims against [Dr.]
Schmalenberger, and therefore must also dismiss them
against Defendant West Shore Anesthesia Associates.
Schweigart’s Br. at 5-6.
We review the grant of summary judgment for errors of law and abuse
of discretion. See In re Risperdal Litig., 223 A.3d 633, 639 (Pa. 2019).
“[S]ummary judgment is appropriate only in those cases where the record
clearly demonstrates that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Id. “The trial
court must take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party” and “must resolve all doubts as
to the existence of a genuine issue of material fact against the moving party.”
Id. The court “may only grant summary judgment where the right to such
judgment is clear and free from all doubt.” Id.Schweigart first challenges the grant of summary judgment as to her
negligence claim. She claims expert testimony was not necessary for the
prosecution of her claim. She contends that Dr. Schmalenberger’s conduct
was “so far outside the standard of care that her testimony would be sufficient
to establish each and every element of negligence.” Schweigart’s Br. at 11.
Schweigart claims Dr. Schmalenberger’s actions “on their face are a breach of
the standard of care due any patient of a physician or their employer” and she
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“can prove, by her own testimony, a causal link between the photograph being
taken and transmitted to her and the emotional damage she suffered
immediately after and continues to suffer as a direct result of [Dr.
Schmalenberger’s] actions and inaction.” Id. at 14-15.
Schweigart has claimed medical malpractice. “Medical malpractice
consists of a negligent or unskillful performance by a physician of the duties
which are devolved and incumbent upon him on account of his relations with
his patients, or of a want of proper care and skill in the performance of a
professional act.” Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1229
(Pa.Super. 2014) (quoting Quinby v. Plumsteadville Family Practice Inc.,
907 A.2d 1061, 1070 (Pa. 2006)). Such a claim implicates the elements of
negligence: duty, breach (sometimes called the negligence prong), causation,
and damages. Id.In all but the most self-evident medical malpractice actions, the plaintiff
must provide a medical expert who will testify as to the elements of duty,
breach, and causation. Id. (citing Quinby, 907 A.2d at 1070-71). A narrow
exception to this requirement “applies in instances of obvious negligence, i.e.,
circumstances in which the medical and factual issues presented are such that
a lay juror could recognize negligence just as well as any expert.” Id. at 1230
(citing Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137 (Pa.
1981)). “In such instances, the doctrine of res ipsa loquitur allows a fact-finder
to infer from the circumstances surrounding the injury that the harm suffered
was caused by the negligence of the defendant.” Id.-6-
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For res ipsa loquitur to apply, three conditions must exist: (a) the event
is of a kind which ordinarily does not occur in the absence of negligence; (b)
other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and (c) the indicated
negligence is within the scope of the defendant’s duty to the plaintiff. Id.Where res ipsa applies, it permits the jury to infer negligence and causation.
Id.Schweigart asserted that the doctrine res ipsa loquitur obviated the
need for expert testimony. The trial court disagreed. It concluded that a lay
jury would be unable to determine, in the absence of expert testimony, that
Dr. Schmalenberger’s conduct constituted negligence. 1925(a) Op. at 6. It
further noted that Schweigart’s injuries included “physical pain, distress, and
emotional damage,” but she had an extensive medical history and no expert
to testify regarding the cause of each of her diagnoses. Id. at 5-6.
We perceive no error in the grant of summary judgment. At the very
least, Schweigart will need an expert to prove causation. The injuries she
claims are not of the sort that a lay jury can determine resulted from the
alleged negligence, without expert help.1
Although not included in her statement of questions involved, in the
argument section of her brief, Schweigart next asserts the court erred in
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1 Toogood v. Owen J. Rogal, D.D.S., 824 A.2d 1140 (Pa. 2003) (opinion
announcing judgment of the court), which the trial court cited, is a plurality
opinion, and not binding precedent. See Quinby v. Plumsteadville Family
Practice, Inc., 907 A.2d 1061, 1070 n.14 (Pa. 2006).
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granting summary judgment as to her claim for invasion of privacy – intrusion
upon seclusion. She argues that the evidence she presented met the elements
for such a claim.
Schweigart waived this issue by not including it in her statement of
questions involved. See Pa.R.A.P. 2116(a) (“No question will be considered
unless it is stated in the statement of questions involved or is fairly suggested
thereby.”).2 Moreover, the trial court dismissed the claim because Schweigart
commenced suit after the statute of limitations had expired. See 1925(a) Op.
at 6-7; 42 Pa.C.S.A. § 5523(1) (providing an action for invasion of privacy
“must be commenced within one year”). Schweigart makes no argument on
appeal that the court erred in reaching that conclusion. Therefore, even if she
had included this issue in the statement of questions involved, we would
nonetheless affirm the trial court.
Schweigart next claims the court erred in granting summary judgment
as to her breach of physician-patient confidentiality claim. She argues that
“[b]y taking a photograph of Ms. Schweigart for a purpose unrelated to any
medical treatment or diagnosis and then at a minimum saving said photo to
his phone, in addition to transmitting the same to [Schweigart] anonymously,
is a breach of” the physician-patient relationship. Schweigart’s Br. at 17. She
claims that, although Dr. Schmalenberger does not recall taking and
____________________________________________
2 See Pa.R.A.P. 2119; Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675,
680 n.6 (Pa.Super. 2007) (the failure to develop an argument with citation to
and analysis of relevant authority waives the issue on appeal).
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transmitting the photograph, “the only reason could be to invade the psyche
of Ms. Schweigart to which the blackening of her character occurs as she must
now wonder why for some unknown reason, she was chosen to be the victim
of [Dr. Schmalenberger’s] unauthorized actions.” Id. at 18.
In Pennsylvania, “in some cases a civil claim for a physician’s breach of
confidentiality is cognizable.” Haddad v. Gopal, 787 A.2d 975, 980
(Pa.Super. 2001). “Doctors have an obligation to their patients to keep
communications, diagnosis, and treatment completely confidential.” Id. at
981. In Haddad, we noted that courts have recognized a physician breach of
confidentiality claim where “confidential disclosures occurred that were
unrelated to any judicial proceedings.” Id.; See Moses v. McWilliams, 549
A.2d 950, 953 n.4 (Pa.Super. 1988) (discussing cases from other jurisdictions
that recognized a breach of confidentiality claim where there were extra-
judicial disclosures of information).
The trial court granted summary judgment because no “disclosure” of
confidential information occurred in this case. 1925(a) Op. at 8-9. The trial
court explained that Dr. Schmalenberger sent the photograph only to
Schweigart, and Schweigart does not allege he sent it to others, submitted it
for publication, or posted it on social media. Id. at 9. The court further
rejected Schweigart’s claim someone could have intercepted it through open
wifi or cellular networks. Id. After a review of the briefs, the trial court record,
the relevant law, and the trial court opinion, we affirm on the basis of the trial
court opinion. Id. at 7-9.
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Schweigart next argues the court erred in granting summary judgment
as to her intentional infliction of emotional distress claim. She claims the facts
reveal that Schmalenberger’s “conduct was certainly outrageous.”
Schweigart’s Br. at 18. She notes Dr. Schmalenberger does not deny taking
the photograph, and she stated that he sent it to her without explanation and
without identifying himself. She further claims that Dr. Schmalenberger’s
“intent can be inferred by examining the backs of everyone else in the
photograph being turned away from the camera.” Id. She states that “given
her post-operative state, [Schweigart] was immediately physically impacted
in terms of the immediate fear, terror, loss of sleep and being left to wonder
all night if someone was stalking her in the hospital or coming for her in the
recovery room as she lay alone in her bed post hip replacement.” Id. at 19.
“The gravamen of the tort of intentional infliction of emotional distress
is outrageous conduct on the part of the tortfeasor.” Gray v. Huntzinger,
147 A.3d 924, 927 (Pa.Super. 2016) (quoting Kazatsky v. King David Mem’l
Park, Inc., 527 A.2d 988, 991 (Pa. 1987)). “[A] plaintiff must prove that the
defendant ‘by extreme and outrageous conduct intentionally or recklessly
cause[d] severe emotional distress.’” Id. (quoting Kazatsky, 527 A.2d at
991).
Here, the trial court granted summary judgment, finding “Dr.
Schmalenberger’s actions were hardly outrageous or extreme ‘beyond all
bounds of decency.’” 1925(a) Op. at 11. After a review of the briefs, the trial
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court record, the relevant law, and the trial court opinion, we affirm on the
basis of the trial court opinion. See id. at 9-11.
Schweigart also claims the court erred in dismissing her request for
punitive damages. She alleges that she set forth facts that her
anesthesiologist took an unsolicited and unauthorized photograph of her and
anonymously sent it to her. She further claims that she then “inquired of the
person sending her the photo of herself and [was] again met with deafening
silence.” Schweigart’s Br. at 20. She asserts that, viewed in the totality, the
“conduct . . . was an egregious deviation from the standard of care to evince
a conscious and or reckless disregard of a patent risk of harm to Ms.
Schweigart.” Id.
Although the claim in the Complaint is entitled “gross negligence,”
Schweigart is in effect requesting punitive damages, and, in her brief, claims
the court erred in dismissing her claim for punitive damages. Id. at 19.
As stated above, the trial court did not err in granting summary
judgment as to her negligence, invasion of privacy, breach of
physician/patient confidentiality, and IIED claims. Therefore, any claim for
punitive damages must also fail. See Judge Tech. Servs. v. Clancy, 813
A.2d 879, 888) (Pa.Super. 2002) (“[i]f no cause of action exists, then no
independent action exists for a claim of punitive damages since punitive
damages is only an element of damages”) (quoting Kirkbride v Lisbon
Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989)). Further, the trial court
found that there was nothing in the record to support Schweigart’s claim that
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Dr. Schmalenberger “acted with the state of mind necessary to show gross
negligence, let alone recklessness.” 1925(a) Op. at 14. We agree and conclude
the court did not err in granting summary judgment.
Schweigart also argues the trial court erred when it granted summary
judgment in favor of West Shore.3 The trial court pointed out that the claims
against West Shore were for vicarious liability, and as it had “dismissed all
claims against [Dr.] Schmalenberger, [it] must also dismiss them against . . .
West Shore.” Id. at 15.
We agree. Because summary judgment properly was entered for all
claims against Dr. Schmalenberger, and Schweigart does not assert an
independent claim against West Shore, the trial court did not err in granting
summary judgment as to the claims against West Shore.
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3 The sole mention of this claim after the statement of questions involved is
in the summary of the argument section. Schweigart makes no mention of it
in the argument section of this brief. Although we could find the claim waived
for failure to develop the argument, we will address it, as the trial court has
done so.
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Order affirmed.
Judge Murray joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
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Received 10/16/2020 1:35:52 P9r&dpbib06/(2dV2D2ddNf5ZtAM
Filed 10/16/2020 1:35:00 PM Superior Court Middle District
1226 MDA 2020
JACQUELINE SCHWEIGART, :THE COURT OF COMMON PLEAS
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
V. :No. 2015-06598 CIVIL TERM
KEVIN SCHMALENBERGER, M.D. and:
WEST SHORE ANESTHESIA ASSOC.,:
Defendants :CIVIL ACTION -LAW ;•,
OPINION
IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Smith, J., August 19, 2020
FACTS
The undisputed facts of this case are as follows. On December 18, 2013, Plaintiff
arrived at Holy Spirit Hospital for hip replacement surgery. While she was in a"holding
area" waiting to be wheeled into the operating room, she was approached by Defendant
Schmalenberger, who introduced himself as her anesthesiologist. Defendant
Schmalenberger was an employee of Defendant West Shore Anesthesia Associates
and working in his official capacity. At the time, Plaintiff was lying in ahospital bed in a
hospital gown. Defendant Schmalenberger asked her anumber of questions related to
her medical conditions and explained the procedure of undergoing general anesthesia.
According to the parties and Plaintiff's medical records, this interaction took place at
3:42 p.m. Plaintiff then signed some paperwork, after which, she was sedated at 3:46
p.m., and surgery commenced-at 3:49 p.m.'
Plaintiff's recollection oscillates after this moment in time. She remembers
waking up in arecovery room in pain. She also remembers waking up in an ambulance
being taken to Healthsouth Rehabilitation facility. At some point, Plaintiff remembers
hearing her phone make an audible alert. When she looked at her phone, she noticed
that someone had sent her aphotograph just before surgery. The photograph is of
Plaintiff, lying on her back in her hospital bed, in ahospital gown, looking at the camera
and sticking her tongue out at the photographer. The picture came from anumber
unknown to Plaintiff at that time and was sent at 3:45 p.m. on December 18, 2013. 2
According to Defendant's deposition testimony "begins surgery" actually indicates the time that the
anesthesiologist releases the patient to the surgical team, not necessarily when the first incision is made.
Defendant's Motion for Summary Judgment, Exhibit B, Deposition of Kevin P. Schmalenberger, M.D., 25,
Schweigart v. Schmalenberqer, No. 2015-06598 (May 8, 2020).
2 Id. at Exhibit A, 61.
Page 1of 15
Plaintiff indicates that she attempted to call the phone number, but no one answered,
and the voicemail message did not indicate to whom the phone number belonged.
Plaintiff indicated in her deposition that after several months, she told her friend,
Bill Davis, about the photo and he helped her do a"reverse look up" of the phone
number. It was at that time that she found out the phone number belonged to
Defendant Schmalenberger. After Plaintiff received her medical records, she learned
that Defendant Schmalenberger had been her anesthesiologist. Again, Plaintiff did not
exactly remember when she was able to connect Defendant Schmalenberger to the
photo, but it would have been before June 30, 2014. On that date, Plaintiff underwent
surgery on her right shoulder, and specifically asked her surgeon not to use Defendant
Schmalenberger as the anesthesiologist because she "had abad experience" with him.
While Plaintiff and Defendants agree on the facts as outlined above, what they
do not agree on is how the picture came to be. Plaintiff indicates that she has no
recollection of the picture being taken and that she was already under sedation when
the picture was taken. Defendant Schmalenberger does not deny that the picture came
from his cellphone, but has no recollection of taking it or why he would have. He
testified at his deposition that "the only reason Ican think of was that Iwas asked to do
that" by Plaintiff. 3 Defendant Schmalenberger further indicated that while he cannot tell
from the photograph whether Plaintiff had any form of sedation, he can say that the
photograph shows that she had not been induced with anesthesia at that point "because
her eyes are open. "4 Defendant Schmalenberger further stated that he has taken
photos at apatient's request in the past and sent it to them, so while it was not common
practice for him to do so, he had done it before. 5 Ultimately, Defendant
Schmalenberger does not deny that he took or sent the photo s
Plaintiff asserts that because of receiving the picture, she is afraid to leave her
house. She no longer does activities that she used to enjoy. She bases this fear on her
belief that she is afraid that "Dr. Schmalenberger has friends in places... Maybe he
would, maybe they would put me to sleep and I'd never wake up again."' She stated in
her deposition that she has had nightmares that Defendant has held her down to put a
3 Id. at Exhibit B, 14.
4 Id. at Exhibit B,15-16.
5 Id. at Exhibit B, 22.
6 Id. at Exhibit B, 20.
7 Id. at Exhibit A, 77.
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needle in her throat to kill her. $ The fear has caused Plaintiff to install security cameras
around her residence. 9 Plaintiff has been under the care of aphysician's assistant at
Summit Behavioral Health since October 2015. She is on medications for depression
and anxiety, and she attends counseling appointments at least once amonth. 10
Plaintiff commenced this proceeding by filing awrit of summons on December 1,
2015. A complaint was filed on October 17, 2016, in which six counts were pleaded,
Count I— Negligence of Dr. Kevin Schmalenberger; Count II — Invasion of Privacy —
Intrusion Upon the Solitude and/or Seclusion and/or Private Affairs of Schweigert; Count
III -Intentional Infliction of Emotional Distress; Count IV —Breach of Physician-Patient
Confidentiality; and Count V —Gross Negligence of Dr. Kevin Schmalenberger. Holy
Spirit Hospital was dismissed as aparty by Order of Court on December 2, 2016.
Defendants Schmalenberger and WSAA filed preliminary objections to the Complaint,
which were granted in part and denied in part. As aresult, Plaintiff filed an Amended
Complaint on June 15, 2017, which pleaded five counts, Count I — Negligence of Dr.
Kevin Schmalenberger; Count II — Invasion of Privacy —Intrusion Upon the Solitude
and/or Seclusion and/or Private Affairs of Schweigert; Count III - Intentional Infliction of
Emotional Distress; Count IV —Breach of Physician-Patient Confidentiality; Count V —
Negligence —West Shore Anesthesia —Holy Spirit Hospital Vicarious Liability —
Agency/Joint Venture; Count VI —Gross Negligence of Dr. Kevin Schmalenberger.
Defendants have now filed aMotion for Summary Judgment.
DISCUSSION
Summary judgment is proper only when the pleadings, depositions, answers to
interrogatories, admissions and affidavits and other materials demonstrate that
there is no genuine issue of material fact and that the moving party is entitled to
judgment as amatter of law. The reviewing court must view the record in the light
most favorable to the nonmoving party and resolve all doubts as to the existence
of agenuine issue of material fact against the moving party. Only when the facts
are so clear that reasonable minds could not differ can atrial court properly enter
summary judgment."
aId.
9 Id. at Exhibit A, 79.
10 Id at Exhibit A, 85-88.
" Safe Auto Ins. Co. v. Oriental-Guillermo, 170 A.3d 1170, 1173 (Pa. Super. 2017), affd, 214 A.3d 1257(Pa. 2019), quoting Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007) (citations
omitted).
Page 3of 15
Additionally, "a proper grant of summary judgment depends upon an evidentiary
record that either (1) shows the material facts are undisputed or (2) contains insufficient
evidence of facts to make out aprima facia cause of action or defense, and, therefore,
there is no issue to be submitted to the jury. 02
NEGLIGENCE
Defendants' first argument in support of summary judgment is that "Plaintiff's
negligence claims must be dismissed as Plaintiff has not provided expert testimony to
establish the necessary elements. 03 Defendants argue that, generally, in order to
proceed on aclaim for medical malpractice, expert testimony is required to establish the
standard of care, show the defendant's failure to exercise that standard of care and
connect the defendant's failure to exercise the standard of care to the plaintiff's
injuries. 14
The requirement of expert testimony in amedical malpractice action is well-
established in Pennsylvania. "[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 standard of care and that the breach proximately caused the plaintiff's injury.
Hence causation is also amatter generally requiring expert testimony. "15 An exception
to this requirement only exists "'where the matter is so simple or the lack of skill or care
so obvious as to be within the range of experience and comprehension of even non-
professional persons...'also conceptualized as the doctrine of res ipsa /oquitor." 16
Res ipsa /oquitor is not alegal doctrine or theory of recovery, but rather arule of
circumstantial evidence that allows ajury to infer negligence without direct evidence of
the elements of negligence. 17 Three conditions must be met before res ipsa /oquitor
may be invoked:
(a) either alay person is able to determine as amatter of common knowledge, or
an expert testifies, that the result which has occurred does not ordinarily occur in
the absence of negligence; (b) the agent or instrumentality causing harm was
within the exclusive control of the defendant; and (c) the evidence offered is
sufficient to remove the causation question from the realm of conjecture, but not
so substantial that it provides afull and complete explanation of the event. 18
92 McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998).
13 Defendant's Motion for Summary Judgment, ¶IV, Schweiqart, No. 2015-06598 (May 8, 2020).
" Id. at ¶28.
15 Tooqood v. Owen J. Roqal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).
18 Id. (quoting Hightower-Warren v. Silk, 698 A.2d. 52, 54 (Pa. 1997)).
17 Id.18 Id. at 1150.
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Our appellate courts have typically applied the theory of res ipsa loquitor to the
element of causation, the prime example being asponge left in apatient's body during
surgery. However, the Pennsylvania Supreme Court has declined to extend the theory
to establish the standard of care and breach of duty.
Not only does plaintiff have the burden of proving that the defendant did not
possess and employ the required skill and knowledge, or did not exercise the
care and judgment of a reasonable professional, he or she must also prove that
the injury was caused by the failure to employ that requisite skill and knowledge.
We have previously concluded that this must be accomplished with expert
medical testimony presented at trial by doctors testifying as witnesses. 19
In the Complaint, Plaintiff states that "a doctor-patient relationship was thus
created between Plaintiff and Defendant Schmalenberger and thus Schmalenberger
owed aduty of care to Plaintiff. ,20 Plaintiff further states that "Defendant
Schmalenberger specifically breached his duty by taking aphotograph of Plaintiff while
she was partially undressed in a hospital smock and presumably in amedicated
state... [and] disseminated an unauthorized photograph of Plaintiff to her while she was
along in her recovery room... "21 Plaintiff concludes that as aresult of this breach of
duty, "Plaintiff suffered physical pain, distress and emotional damage. ,22
Plaintiff has not named an expert in this matter. Rather, Plaintiff filed a
"Certificate of Counsel" that "the expert testimony of aLicensed Professional is
unnecessary for prosecution of the claim(s) raised in the Complaint. ,23 In Plaintiff's
brief, Plaintiff explains further that she "possesses more expertise of her condition and
its toll upon her than someone with the ordinary range of experience," and that "the
actions of Defendant[s] on their face are abreach of the standard of care due any
patient of aphysician or their employer. ,24 Plaintiff further asserts that "Plaintiff can
prove, by her own testimony, acausal link between the photographs being taken and
transmitted to her and the emotional damage she suffered immediately after and
continues to suffer as adirect result of Defendant's action and inaction." 25 Ultimately,
Plaintiff believes that expert testimony is not necessary, "as the conduct of Defendant(s)
19 Id. at 1149.
20 First Amended Complaint, q 20, Schweiqart, No. 2015-06598 (June 15, 2017).
21 Id.
22 Id.
23 Certificate of Counsel, Schweiqart, No. 2015-06598 (November 29, 2016).
24Plaintiff's Brief in Support of Denying Summary Judgment, 3, Schweiqart, No. 2015-06598 (June 15,
2020).
25 Id.
Page 5of 15
is so far outside the standard of care that her testimony would be sufficient to establish
every element of negligence." 26
Plaintiff, at no point, states what the standard of care in this matter is; only that
Defendant Schmalenberger owed her aduty of care because he was her
anesthesiologist. There is no expert witness to say that Defendant Schmalenberger
owed Plaintiff aspecific duty not to photograph her before surgery. Plaintiff wants the
finder of fact to assume that the standard of care that doctors should not photograph
patients goes without saying. However, without knowing what the standard of care is,
the finder of fact cannot reasonably determine if Defendant Schmalenberger breached
the standard of care, and by default, cannot determine whether the breach caused
injury.
Additionally, in this matter, Plaintiff claims her injuries were "physical pain,
distress and emotional damage."27 Plaintiff was interrogated extensively in her
deposition with regard to her medical history. Plaintiff has had head and neck injuries,
spine surgery, hip replacement, shoulder surgery, frequent headaches, Lyme disease,
and was previously treated for depression with medication. Plaintiff's medical history
goes back to acar accident that occurred in 1986, and Plaintiff's injuries are so severe,
that she has been collecting Social Security disability payments since around 1986. 28
Without an expert to differentiate between Plaintiff's preexisting conditions and any
conditions that arose as aresult of the Defendants' actions, alay jury will not be able to
determine causation. Determining the specific cause of Plaintiff's medical conditions in
this case will require the finder of fact to thoroughly examine Plaintiff's medical records
and determine the cause of each and every diagnosis, something that is neither simple
nor obvious, and thus beyond the scope of the exception to the medical expert
requirement.
Defendant's Motion for Summary Judgment as to Count I— Negligence is
GRANTED.
INVASION OF PRIVACY
Defendants next assert that Plaintiff's invasion of privacy claim should be
dismissed because the statute of limitations has lapsed. The statute of limitations for an
invasion of privacy claim is set forth in 42 Pa.C.S.A. §5523, which requires that an
action for invasion of privacy be commenced within one year.
Plaintiff did not respond to Defendants' assertions that the statute of limitations
has lapsed. As we are required to look at the facts in the light most favorable to the
26 Id. at 4.
27 First Amended Complaint, 125, Schweiqart, 2015-06598 (June 15, 2017).
28 Defendant's Motion for Summary Judgment, Exhibit A, Deposition of Jacqueline Schweigart, 18,
Schweigart, 2015-06598 (May 8, 2020).
Page 6of 15
non-moving party, we will determine that, at the very latest, Plaintiff knew that
Defendant Schmalenberger had sent her the photograph on June 30, 2014, the day that
she asked the doctor performing her shoulder surgery to insure that Defendant
Schmalenberger was not her anesthesiologist for that procedure .29 The writ of
summons was filed on December 1, 2015, just over seventeen months after the latest
possible moment of discovery of the photographer's identity.
Defendant's Motion for Summary Judgment as to Count II — Invasion of Privacy
is GRANTED.
BREACH OF PHYSICIAN-PATIENT CONFIDENTIALITY
Defendant's next argument is that Plaintiff's claim for breach of physician-patient
confidentiality should be dismissed because Plaintiff has failed to establish that
Defendant Schmalenberger "breached the [physician-patient] privilege by
releasing/providing confidential information, gained during the scope of the relationship
to athird party," and fails to show that "the information disclosed would tend to blacken
the character of the patient." 3°
Pennsylvania courts have recognized acause of action for breach of the
physician-patient privilege .31 The cause of action is based on the evidentiary privilege
applicable to civil cases set forth in 42 Pa.C.S.A. §5929, which states that
[n]o physician shall be allowed, in any civil matter, to disclose any information
which he acquired in attending the patient in a professional capacity, and which
was necessary to enable him to act in that capacity, which shall tend to blacken
the character of the patient, without consent of said patient, except in civil
matters brought by such patient, for damages on account of personal injuries.
29 Id. at Exhibit A, 67.:
Q: And the record —your medical record indicates that you told Dr. Boal that you had abad
experience with Dr. Schmalenberger, and you did not want him as an anesthesiologist?
A: Yes.
Q: So that is something you recall doing?
A: Ido.
Q: And if your medical record indicates that that took place on June 30, 2014, that means
that you would have done the reverse look up by then, and would have connected the
dots with your medical records?
A: Right.
Q: So from that point in time, you knew that the picture was sent from Dr. Schmalenberger's
phone?
A: Yes.
so Id at ¶103.
31See Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988) and Haddad v. Gopal, 787 A.2d 975 (Pa.
Super. 2001).
Page 7of 15
The Superior Court has found that "the rationale of the statute ... was 'designed to
create aconfidential atmosphere in which apatient will feel free to disclose all possible
information which may be useful in rendering appropriate treatment."' 32 They have
further explained that "the privilege is limited to information which would offend the
rationale of the privilege ... adoctor must not expose apatient's communications if doing
so would release confidential information which was acquired in attending to and
treating the patient and which would blacken the character of the patient.s 33 So while
the Superior Court has found that "doctors have an obligation to their patients to keep
communications, diagnosis and treatment completely confidential," the standard must
be limited to the "context of the privilege statute which protects against the disclosure of
information directly related to apatient's confidential information that blackens their
reputation." 34 Thus, in order to succeed on aclaim for breach of physician-patient
confidentiality, there must be (1) adisclosure; (2) of apatient's communications; (3) that
tend to "blacken the character of the patient"; and (4) was done without consent of the
patient.
Defendants assert that no disclosure occurred, in that the photograph was sent
directly by Defendant Schmalenberger to Plaintiff. Plaintiff counters by saying that a
breach of the relationship occurred by taking the photograph and "then saving said
photo to his phone for his personal use, in addition to transmitting the same to Plaintiff
anonymously." 35 Further, in her Complaint, Plaintiff alleges that "said photograph was
transmitted using aseries of cellular networks, wifi-networks that were both closed and
open, leaving open the possibility that said photograph was intercepted, read or viewed
by an undeterminable number of individuals." 36
Disclosure is not specifically defined by the statute or case law. In fact, in the
cases that have alleged breach of physician-patient confidentiality, we could find none
that did not have an obvious statement to athird party. 37 Without definition from any
authority, the plain meaning of the term is used. According to Black's Law Dictionary
32Grimminger v. Maitra, 887 A.2d 276, 279 (Pa. Super. 2005)(quoting Miller Oral Surqerv, Inc. v. Dinello,
611 A.2d 232, 235 (Pa. Super. 1992)).
33 Id.34 Id. at 280 (citing Hadad, 787 A.2d at 981).
35Plaintiff's Brief in Support of Denying Summary Judgment, 6, Schweiqart, No. 2015-06598 (June 14,
2020).
35 First Amended Complaint, 143, Schweigart, No. 2015-06598 (June 15, 2017).
37 In Hadad, aphysician made astatement to the patient's husband regarding her diagnosis of asexually
transmitted disease. In Grimminqer, aphysician made astatement to the patient's employer regarding
injuries sustained to his shoulder. In Moses, aphysician revealed adiagnosis of the patient to adefense
attorney in personal injury matter. These examples are not exclusive of the body of case law in this arena
(there are anumber of cases where probationers have filed suit against doctors for revealing the results
of drug testing to probation officers), but illustrative of the point that with the specific claim for breach of
physician-patient confidentiality, there must be adisclosure of information to athird party.
Page 8of 15
(11 th ed. 2019), "disclose" means "to make something known or public; to show
something after aperiod of inaccessibility or of being unknown; to reveal." Taking our
que from that definition, there was clearly no disclosure of confidential information in this
matter. Defendant Schmalenberger sent the photo to Plaintiff alone, and Plaintiff raises
no allegations otherwise. She does not allege that he sent it to his friends or
colleagues; she does not allege that he submitted it to any publication; and she does
not allege that he posted it on social media. 38
We do not subscribe to Plaintiff's belief that someone could have intercepted the
photo through open wifi or cellular networks. That would be analogous to saying that
someone could have heard aprivate conversation taking place between aphysician
and his patient in aclosed exam room by hiding in an air duct, or intercepting
confidential mail through the United States Postal Service.
Defendant's Motion for Summary Judgment as to Count IV -Breach of Physician-
Patient Confidentiality is GRANTED.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Defendant's next argument asks the Court to dismiss Plaintiff's claim for
intentional infliction of emotional distress because the conduct of Defendant
Schmalenberger was not extreme or outrageous enough to meet the burden of proof for
intentional infliction of emotional distress and because Plaintiff did not suffer aphysical
injury or impact as aresult of the alleged behavior.
First, we note that this Court's Order dated February 22, 2017 limited Plaintiff's
claim for intentional infliction of emotional distress to nominal damages because Plaintiff
does not have an expert to testify to her emotional distress related to Defendant's
conduct. For this reason, we will not delve into the argument that Plaintiff cannot prove
her injuries. Instead, we will look to whether Plaintiff can proceed on the other elements
of intentional infliction of emotional distress.
The tort of intentional infliction of emotional distress is nebulous. It is defined by
the Restatement (Second) of Torts as "one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other results from it, for
such bodily harm. "39 Primarily, it requires the plaintiff to prove that the conduct of the
defendant was outrageous, and "it is for the court to determine, in the first instance,
38In an unreported opinion, the Superior Court recently rejected the argument that anurse's statements
on Facebook rose to the level of abreach of patient-physician confidentiality. See Shaner v. UPMC
Susquehanna, 922 MDA 2019 (Pa. Super. March 24, 2020).
39 Kazatskv v. Kinq David Memorial Park, 1nc., 527 A.2d 988, 991 (Pa. 1987)(quoting Restatement
(Second) of Torts §46 (1965)).
Page 9of 15
whether the actor's conduct can reasonably be regarded as so extreme and outrageous
as to permit recovery. ,4o
Outrageous conduct is not well defined, as our Supreme Court explained in
Kazatskv v. Kinq David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987).
It has not been enough that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized by malice or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community... Liability does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities. 41
The Court went on to say that "[t]he tort of intentional infliction of emotional distress
differs from traditional intentional torts in an important respect: it provides no clear
definition of the prohibited conduct." 42 So what exactly is outrageous conduct? "'The
term outrageous is neither value free nor exacting. It does not objectively describe an
act or series of acts; rather, it represents an evaluation of behavior. ' ,43
Pennsylvania Courts have allowed recovery for intentional infliction of emotional
distress only in "very egregious cases. ,44 We have examined anumber of cases, the
most heinous of which appears to be Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970).
In that case, the plaintiffs' son was struck by defendant while driving his car. The
defendant then buried the body, which was not found until two months later. The
defendant never reported the accident or told the plaintiffs that he had killed their son.
The Pennsylvania Supreme Court held that the defendant's conduct was "intentional
and wanton" and caused the plaintiffs "extraordinary mental distress which is
attributable to that conduct.s 4
For every case that our appellate courts have determined to be outrageous
conduct, there are several in which they did not. While we have not found acase
precisely analogous to this one, we examined several where harassment was at issue.
40McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 661 (Pa. Super. 2000)(quoting Strickland v.
University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997)).
41 Kazatskv, 527 A.2d at 991 (quoting Restatement (Second) of Torts §46 cmt. D (1965)).
42 Id. at 994.
43 Id. (quoting Givelber, The Riqht to Minimum Social Decency and the Limits of Evenhandedness:
Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 52-53 (1982)).
44 Hoy v. Anqelone, 691 A.2d 476, 482 (Pa. Super. 1997).
45 Papieves, 263 A.2d at 122.
Page 10 of 15
In Hoy v. Anqelone, 691 A.2d 476, 482 (Pa. Super. 1997), the plaintiff's supervisor at
work subjected her to "various forms of abusive treatment, including sexual
propositions, vile and filthy language, off-color jokes, physical groping, and the posting
of sexually suggestive pictures," which distressed the plaintiff so much that she took
medical leave from her job in order to receive psychiatric treatment. The defendant
admitted to the conduct, and upon her return to work, the plaintiff requested atransfer to
another department. The Superior Court noted that "as ageneral rule, sexual
harassment alone does not rise to the level of outrageousness necessary to make out a
cause of action for intentional infliction of emotional distress," holding that "although the
record fully establishes and supports the existence of asexually hostile work
environment, such evidence alone does not establish the requisite outrageousness to
recover under aclaim of intentional infliction of emotional distress. ,46
Plaintiff refutes the Defendants' contention that the conduct of Defendant
Schmalenberger was not outrageous by simply saying "the facts reveal that Defendant
Schmalenberger's conduct was certainly outrageous. ,47 However, even viewing the
facts in the light most favorable to Plaintiff, and accepting all of her assertions as true,
that Defendant Schmalenberger maliciously took the photograph and sent it to Plaintiff
with evil intentions, the conduct does not rise to the level of abusive behavior in Hoy, let
alone the objectively egregious behavior in Papieves. Defendant Schmalenberger took
one photograph, and sent it, without text or comment, to Plaintiff's cell phone. There
was not a pattern of conduct; there were no threats that accompanied the photograph;
there was only one, admittedly poor, photograph of Plaintiff. Defendant
Schmalenberger's actions were hardly outrageous or extreme "beyond all bounds of
decency."
Defendant's Motion for Summary Judgment as to Count III -Intentional Infliction
of Emotional Distress is GRANTED.
GROSS NEGLIGENCE/PUNITIVE DAMAGES
Defendants next argue that Plaintiffs claim for gross negligence and punitive
damages should be dismissed, because even in the light most favorable to the Plaintiff,
the record does not support afinding of gross negligence, and even if it did, gross
negligence is insufficient to recover punitive damages under the Medical Care
Availability and Reduction of Error Act ("MCARE Act").
Pennsylvania Courts have held that gross negligence is different from ordinary
negligence. Gross negligence has been examined most commonly with regard to cases
arising out of medical malpractice involving mental health care providers because in
order to overcome immunity for mental health care providers, aplaintiff must show that
4s Hov, 691 A.2d at 483.
47 Plaintiff's Brief in Support of Denying Summary Judgment, 6, Schweiqart, No. 2015-06598 (June 14,
2020).
Page 11 of 15
the provider acted with gross negligence. 48 While this is not amental health malpractice
case, our appellate courts have applied the definition of gross negligence used in
mental health malpractice cases in other contexts .49 Accordingly, we will do the same.
Gross negligence was first defined by the Superior Court in Bloom v. Dubois
Regional Medical Center, 597 A.2d 671, 679 (Pa. Super. 1991). The Court, after
examining case law and legislative intent in both Pennsylvania and other jurisdictions,
held that gross negligence is "a form of negligence where the facts support substantially
more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of
the defendant must be flagrant, grossly deviating from the ordinary standard of care." 50
The Pennsylvania Supreme Court adopted this definition of gross negligence in Albriqht
v. Abinqton Memorial Hosp., 696 A.2d 1159, 1167 (Pa. 1997), and further held that
"when presented with facts that do not meet the definition of gross negligence, as a
matter of law, acourt may withdraw the factual determination of gross negligence from
the jury and decide the question as amatter of law. ,51
Again, we will look to when our appellate courts have found facts sufficient to
support afinding of gross negligence. In Bloom, the plaintiff was apsychiatric patient,
exhibiting severe psychosis. The plaintiff was left unattended and then attempted to
hang herself with her shoelaces. The Superior Court found that the defendants failed to
take adequate precautions to ensure the plaintiff's safety, including properly diagnosing
her despite being informed of her symptoms, and that such conduct was sufficient to
support aclaim for gross negligence. 5
In Albriqht, the decedent was involuntarily committed and diagnosed with bipolar
disorder. She was released, by order of court, to a90 day outpatient program, where
she missed several appointments and admitted, repeatedly, to counselors and her
physician that she was not taking her medication. Her behavior became erratic. On
day 85, her husband, the plaintiff, called the hospital and her counselors and asked for
them to commit her for failing to comply with the outpatient program. The defendants
responded that the plaintiff should commence involuntary commitment proceedings,
which he did not do. Her condition continued to deteriorate, and she eventually
perished in afire that may have been caused by her "careless smoking." The
Pennsylvania Supreme Court determined that no reasonable jury could have found that
the defendant acted in agrossly negligent manner because there would not have been
sufficient time for the hospital to do an involuntary commitment under the 90 day order,
48 See 50 P.S. §7114(a).
49 See Ratti v. Wheelinq Pittsburqh Steel Corp., 758 A.2d 695 (Pa. Super. 2000),
50 Bloom, 597 A.2d at 679.
51 Albright, 696 A.2d at 1167.
52 Bloom, 597 A.2d at 679.
Page 12 of 15
and their advice for plaintiff to initiate an involuntary commitment petition was not
taken. 53
As to punitive damages, the MCARE Act is clear: ashowing of gross negligence
is insufficient to support an award of punitive damages. 44 The MCARE Act instead
provides that "[p]unitive damages may be awarded for conduct that is the result of the
health care provider's willful or wanton conduct or reckless indifference to the rights of
others.s 55 The Superior Court has held that "recklessness is distinguishable from
negligence on the basis that recklessness requires conscious action or inaction which
creates asubstantial risk of harm to others, whereas negligence suggests unconscious
inadvertence." 56
Neither party addresses the definition of gross negligence. Defendants simply
state that the facts do not support afinding of gross negligence, without any further
analysis, and Plaintiff ignores the argument regarding gross negligence altogether.
Defendants then state that Plaintiff has insufficiently pleaded punitive damages in the
complaint by misidentifying the standard. We do note that while the allegations are
under the title of "gross negligence," the Plaintiff does identify the correct standard by
alleging that "the acts or omissions, viewed objectively from Schmalenberger's
standpoint at the time they occurred, involved an extreme degree of risk considering the
potential haarm to Plaintiff; Schmalenberger had actual, subjective awareness of the
risk." 57 However, the record does not support these allegations.
Plaintiff's testimony on deposition is that she does not really remember meeting
Defendant Schmalenberger. 58 She recounts that "the only thing we talked about was he
asked me if Ihad any heart conditions and stuff, like Itold you, and then told me that he
would sedate me to relax me, and which he put some type of anesthesia or something
in my IV, and then they was ready for me in surgery.s 59 After receiving the photo,
Plaintiff admits that she did not get any further text messages or calls from the
number. 60 She tried calling the number and no one answered, and she did not leave a
message. 61 She did not tell anyone about the photograph until "several months
53 Albriqht, 696 A.2d at 1167.
54 40 P.S. § 1303.505(b).
55 40 P.S. § 1303.505(a).
5s Kibler v.Blue Knob Recreation, 184 A.3d 974, 985-986 (Pa. Super. 2018)(citing Tavar v. Camelback
Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012)).
57 First Amended Complaint, 148, Schweiqart, No. 2015-06598 (June 15, 2017).
58 Defendant's Motion for Summary Judgment, Exhibit A, 36, Schweiqart, No. 2015-06598 (May 8, 2020).
5s Id. at Exhibit A, 37.
so Id. at Exhibit A, 56.
Page 13 of 15
afterwards," when she told afriend who helped her look up the owner of the telephone
number. 62 When asked if she knew or believed if the photo was sent to anyone else,
Plaintiff said "I have no clue. ,63
Plaintiff states that she is afraid that "Dr. Schmalenberger has friends in places,
and he just for whatever reason it was the he took my picture, maybe he knew me
before, Idon't know. And Ithink, you know, he has friends and stuff. Maybe he would —
maybe they would put me to sleep and I'd never wake up again." 64 We do not suggest
that Plaintiff's fear is not real, but, objectively, there is nothing in the record to support
her allegations that Defendant Schmalenberger "subjectively intended to harm Plaintiff
and he know [sic] or should have known injury would result from his gross deviation...
his conduct was reckless willful and malicious and injury resulted to Plaintiff. ,65 In her
own words, she does not know the reason for Defendant Schmalenberger taking the
photo, and there is no document, admission or witness to show otherwise. Simply
saying that "maybe" Defendant would do something to her is not enough without
showing on what that belief is based. Even ignoring Defendant Schmalenberger's
assertions that Plaintiff asked him to take the photo, without knowing the reason for
Defendant Schmalenberger's actions, Plaintiff cannot show that Defendant
Schmalenberger acted with the state of mind necessary to show gross negligence, let
alone recklessness. There are simply too many unknowns.
We would also be remiss in failing to note that if the Plaintiff is required to have
an expert witness testify as to the standard of care for ordinary negligence in amedical
malpractice case, it follows that she would need an expert witness to testify as to the
standard of care for gross negligence. The Defendants did not raise that argument in
their motion for summary judgment, so we will not rely on it as the basis of our opinion.
Defendants' Motion for Summary Judgment as to Count V -Gross Negligence
and punitive damages is GRANTED.
PLAINTIFF'S CLAIMS AGAINST
DEFENDANT WEST SHORE ANESTHESIA ASSOCIATES
Last, Defendant's assert that there is no independent cause of action against
Defendant West Shore Anesthesia Associates, so if the claims are dismissed against
Defendant Schmalenberger, they should also be dismissed against Defendant West
Shore Anesthesia Associates.
61 Id. at Exhibit A, 46.
62 Id. at Exhibit A, 63.
6s Id. at Exhibit A, 72.
64 Id at Exhibit A, 77.
65 See First Amended Complaint, ¶50, Schweigart, No. 2015-06598 (June 15, 2017).
Page 14 of 15
We note that the claim for vicarious liability in Plaintiff's original complaint was
dismissed on preliminary objections by this Court on February 22, 2017. Additionally,
there are no independent causes of action or facts alleged against Defendant West
Shore Anesthesia Associates. Therefore, as we have dismissed all claims against
Defendant Schmalenberger, we must also dismiss them against Defendant West Shore
Anesthesia Associates.
Defendant's Motion for Summary Judgment as to the claims against Defendant
West Shore Anesthesia Associates is GRANTED.
By the Court,
Matthew P. Smith, J.
Michael O. Palermo, Esq.
3300 Trindle Road
Camp Hill, PA 17011
TRUE COPY FROM RECORD
in Testimony whereof, Ihere unto set my hand
Daniel Grill, Esq. and thf aI of said Court at Carlisle, Pa.
305 N. Front Street This .day of ,"•I
f 20 26
Harrisburg, PA 17101 l
aunty
Prothonotary
Page 15 of 15