Bailey, C. v. Penn Med. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CARRIE BAILEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HOSPITAL OF THE UNIVERSITY OF : No. 1481 EDA 2020
PENNSYLVANIA :
Appeal from the Order Entered June 25, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 191103241
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 26, 2021
Appellant, Carrie Bailey, appeals from the trial court’s June 25, 2020
order entering judgment in favor of Appellee, Hospital of the University of
Pennsylvania (“Hospital”), and against Ms. Bailey, after it had granted
Hospital’s motion for judgment on the pleadings. We affirm.
Ms. Bailey sued Hospital for negligence and negligent hiring following
the purported mishandling of her medical records. She alleged, inter alia,
that, on or around June 25, 2019, her results from a June 20, 2019 blood test
were sent to a doctor she did not know and had not authorized to receive such
information. See Amended Complaint, 1/6/20, at ¶¶ 4, 8. Further, she
averred that she and her own doctor “were unable to access the said record
until after July 3, 2019 — nearly 2 weeks after the tests were taken and more
than 8 days after their unauthorized release.” Id. at ¶ 28.
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In support of her negligence claim against Hospital, Ms. Bailey
specifically alleged the following:
35. [Ms. Bailey] and [Hospital] are doctor and patient and thus
stand in a special relationship to each other.
36. [Hospital] has a common law duty (or the court should impose
one) to safeguard and protect [Ms. Bailey’s] health care [sic]
information and to make [her] healthcare information accessible
to [Ms. Bailey] and her doctor and [Hospital’s] failure to do so
amounted to ordinary negligence.
37. Electronic record collection and cyber hacking pose an
increasing huge [sic] risk on society that private and confidential
healthcare information will be exposed and negatively affect a
growing number of Americans.
38. The consequences of imposing such a duty of care upon
[Hospital] will be limited, and not broad-based, and will advance
society’s goal of ensuring confidentialit6y [sic] of medical records
and enhance confidence in patients that their private information
will be protected and not viewed by unauthorized persons.
Imposing such a duty of care will also lead to a limited burden on
[Hospital], as opposed to the extensive harm that will result from
not imposing a duty.
39. It is also sound public policy to take all reasonable steps to
safeguard health care [sic] information of patients from careless,
reckless and reprehensible exposure and it will promote the
privacy goal of [the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”)1]; and the privacy goal of 28
Pa. Code § 115.27[,] which states:
“All records shall be treated as confidential. Only
authori8zed [sic] personnel shall have access to the records.
The written authorization of the patient shall be presented
____________________________________________
1 Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered
sections of 18, 26, 29, and 42 U.S.C.). HIPAA “provides for monetary fines
and various terms of imprisonment for the wrongful disclosure of individually
identifiable health information.” Lykes v. Yates, 77 A.3d 27, 31 (Pa. Super.
2013) (citation omitted).
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and then maintained in the original records as authority for
release of medical information outside the hospital[.”2]
40. In transmitting [Ms. Bailey’s] medical information to an
unauthorized doctor whom [Ms. Bailey] does not know, [Hospital]
deviated from the standard of care that a reasonable man of
ordinary prudence would have exercised.
41. [Hospital’s] lack of care in sending [Ms. Bailey’s] medical
records to an unauthorized person amounted to negligence and
proximately caused the following physical injury to [Ms. Bailey,]
causing [her] to spend and have to continue ot [sic] spend larges
[sic] sums of money to alleviate:
a. [Ms. Bailey] suffered an increase in her hypertension;
b. [Ms. Bailey’s] doctor prescribed an increase in [her] blood
pressure medicine;
c. [Ms. Bailey’s] doctor referred her to a heart doctor;
d. [Ms. Bailey] has poor sleep;
e. [Ms. Bailey] have had [sic] a decrease in exercise;
f. [Ms. Bailey] has gained weight;
g. [Ms. Bailey] has experience [sic] more fatigue and
stress[,] resulting in poor blood pressure;
h. At the direction of her doctor, [Ms. Bailey] had to changed
[sic] her diet[.]
____________________________________________
2 Violations of Section 115.27 are remedied through 28 Pa. Code § 51.41,
which provides:
(a) When appropriate, the Department [of Health and Human
Services] will work with the health care facility to rectify a violation
of this part.
(b) A health care facility that violates this part may be subject to
sanctions by the Department, which include: [various penalties].
(c) A person who violates this part may be subject to a civil
penalty, not to exceed $500 per day.
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42. It is foreseeable that the above severe physical harm may
result from the careless release of healthcare information to the
wrong person, even if that person is a doctor and causing a
protracted period to pass before a person could gain access to her
own medical records.
Amended Complaint at ¶¶ 35-42.
Additionally, in support of her negligent hiring claim, Ms. Bailey averred
the following:
43. [Hospital] has a duty (or one should be imposed by the court)
to exercise reasonable care in hiring competent employees to
handle [Ms. Bailey’s] records and to treat [Ms. Bailey] with
professionalism and respect.
44. This duty arises from the special relationship that exists
between [Ms. Bailey] and [Hospital] as doctor and patient.
45. The incompetent placing of [Ms. Bailey’s] medical records in
their wrong file, and sending of those records to an authorized
[sic] doctor and not to [Ms. Bailey] would have been averted or
avoided along with the injury to [Ms. Bailey] if such a duty would
have been followed or been court imposed.
46. [Hospital] has an important role of social utility in providing
healthcare services to the community and providing competent
staffing in furtherance of those services.
47. This social utility is seriously undermined by the admission
that staff placed another patient’s records in [Ms. Bailey’s] file,
sent [her] records to an unauthorized person and treated [Ms.
Bailey] with hostility when [she] tried to get a hard copy of her
record.
48. The nature of the risk imposed involve mix-ups in patients’
records and barriers in patients’ ability to receive their records and
the foreseeable harm to [Ms. Bailey] involve [sic] a worsening of
[her] already precarious health condition and problems with her
blood pressure and heart from a delay in her doctor[’s] being able
to consult her record and added stress from the rude and
unprofessional treatment of employees.
49. There is virtually no negative consequences of imposing such
a duty on [Hospital] and the public interest in quality healthcare
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and improving the handling of medical records and patient-doctor
communication will be greatly enhanced by imposing such a duty.
50. [Hospital] has breached this duty in hiring employees who
“miss-scanned” and placed someone else’s record in [Ms. Bailey’s]
medical file, in sending that file to an unauthorized person, in
taking too long to correct the mistake and in treating [Ms. Bailey]
rudely and unprofessionally.
51. These employees were in a master-servant relationship with
[Hospital] at the time but were acting outside the scope of their
employment and not in furtherance of the master’s business when
they committed the negligent acts.
Id. at ¶¶ 43-51. As a result, Ms. Bailey stated she has suffered physical
injuries. Id. at ¶ 52 (reiterating the physical injuries mentioned in paragraph
41 of the Amended Complaint, supra).
Hospital subsequently filed an answer with new matter, and Ms. Bailey
filed a reply to Hospital’s new matter. Hospital then filed a motion for
judgment on the pleadings. Therein, Hospital first argued that Ms. Bailey
lacked standing to bring any claim arising from the unauthorized disclosure of
her protected health information, noting that “multiple federal courts have
held that HIPAA does not create a private cause of action[,]” and that,
“[s]imilarly, there is no express right of action granted by 28 Pa. Code §
115.27.” Hospital’s Motion for Judgment on Pleadings, 3/2/20, at ¶¶ 33, 34.
Second, Hospital asserted that, “even if this court can consider [Ms. Bailey’s]
claim, [she] cannot recover against [Hospital] under respondeat superior since
the negligent actions of [Hospital’s] agents, servants and employees are
alleged to have occurred outside the course and scope of their employment.”
Id. at Part B. (unnecessary emphasis and capitalization omitted); see also
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id. at ¶ 43 (“Yet [Ms. Bailey] has expressly pled that the negligent acts
performed by [Hospital’s] employees were outside the scope of their
employment and were not in furtherance of the master’s business.”)
(emphasis in original; citing Ms. Bailey’s Amended Complaint at ¶ 51).
Thereafter, Ms. Bailey filed a brief in opposition. She stated, without
citing to any relevant authority, that Hospital “has a common law duty (or the
court should impose one) to safeguard and protect [her] health care [sic]
information and to make [her] healthcare information accessible to [Ms.
Bailey] and her doctor. [Hospital’s] failure to do so amounted to ordinary
negligence.” Ms. Bailey’s Brief in Opposition, 3/25/20, at 2 (citation to
complaint omitted). She explained that she agrees with Hospital that “there
is no private right of action under HIPAA and no expressed right of action
under 28 Pa. Code § 115.27[,]” but says she “brought her claims in the
Amended Complaint under neither[,]” and only mentioned them in reference
to their policy goals. Id. at 5. She also contended that Hospital failed to show
that HIPAA pre-empts the state common law as to deprive her of standing.
Id. at 7. Further, with respect to her negligent hiring claim, she said that
Hospital could still be liable, even though its employees were acting outside
the scope of their employment, under Section 317 of the Restatement
(Second) of Torts, which we discuss further infra. See id. at 4-5.
Hospital then filed a reply in support of its motion for judgment on the
pleadings. There, Hospital observed that Ms. Bailey tacitly admitted that no
common law duty to safeguard her healthcare information exists and that the
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duty she seeks is already imposed on Hospital by statute and regulation. See
Hospital’s Reply, 3/31/20, at 7. It also noted that our Supreme Court “has
expressed its reluctance to impose new affirmative duties through the
extension of common law particularly where tried and true measures exist.”
Id. at 7-8 (citations omitted). In addition, concerning Ms. Bailey’s negligent
hiring claim, Hospital asserted that Section 317 “requires knowledge on the
part of the master such that it either knew or should have known of the
necessity to control the servant.” Id. at 15 (citation omitted). It claimed that
“[a] thorough reading of [Ms. Bailey’s] [a]mended [c]omplaint fails to identify
any specific allegation which avers that [Hospital] either knew or should have
known of some propensity of each alleged servant that necessitated
heightened scrutiny in [either the] hiring or supervision of the employee.” Id.Ms. Bailey subsequently filed a sur-reply. She reiterated that Hospital
failed to show how Pennsylvania’s law of negligence is pre-empted by HIPAA.
Ms. Bailey’s Sur-Reply, 4/13/20, at 2. Regarding her negligent hiring claim,
Ms. Bailey stated that there “are questions of fact that need to go to the jury
along with questions surrounding the training of [Hospital’s] workers and how
and to what extent was [Ms. Bailey’s] record wrongfully disseminated to
persons without authority and the facts and foreseeability of [Hospital’s]
actions and how they would effect [sic] [Ms. Bailey’s] injuries.” Id. at 6.
After considering the parties’ filings, the trial court issued an order
granting Hospital’s motion for judgment on the pleadings and dismissing Ms.
Bailey’s amended complaint. Thereafter, the trial court entered judgment in
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favor of Hospital and against Ms. Bailey, and Ms. Bailey filed a timely notice
of appeal. The trial court directed her to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and she timely
complied. Subsequently, the trial court issued a Rule 1925(a) opinion,
explaining that it “concluded that the Hospital owed no actionable duty to Ms.
Bailey and Ms. Bailey did not allege sufficient facts supporting her negligent
hiring claim.” Trial Court Opinion (“TCO”), 10/20/20, at 1.
Presently, Ms. Bailey raises two issues for our review:
1. Did the trial court err in dismissing a negligence action against
[Hospital] for an unauthorized release of [Ms. Bailey’s] medical
records because the duty allegedly owed [to Ms. Bailey] was also
a duty imposed by HIPAA to which there is no private right of
action?
2. Where a 2-count negligence claim pleads duty, breach,
proximate cause, damages and foreseeability and a special
relationship between the plaintiff and the employer, and a motion
for judgment on the pleadings is filed prior to discovery, was it
error for the trial court to dismiss the negligent hiring count
because there was no allegation that the employer had knowledge
of the same kind of prior wrongs allegedly committed by an
employee against [the] plaintiff and because the other claim did
not allege the accused employees acted within the scope of their
authority and in furtherance of the employer’s business?
Ms. Bailey’s Brief at viii.
Initially, we note our standard of review for judgment on the pleadings:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the
pleadings is similar to a demurrer. It may be entered when there
are no disputed issues of fact and the moving party is entitled to
judgment as a matter of law.
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Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well[-]pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.
We will affirm the grant of such a motion only when the moving
party’s right to succeed is certain and the case is so free from
doubt that the trial would clearly be a fruitless exercise.
Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 (Pa.
Super. 2015) (citation omitted).
First Issue
In Ms. Bailey’s first issue, she argues that the trial court erred “in
dismissing a negligence action against [Hospital] for an unauthorized release
of [Ms. Bailey’s] medical records because the duty allegedly owed [to Ms.
Bailey] was also a duty imposed by HIPAA to which there is no private right
of action[.]” Ms. Bailey’s Brief at viii. Ms. Bailey says that “[c]learly patients
have an interest in avoiding disclosure of personal matters[,]” id. at 7, and
claims that “[i]t is equally clear that healthcare facilities have a duty to protect
their patients’ confidential information.” Id. at 8. To support that a common
law duty to protect patients’ confidential information exists, she cites to
Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988), asserting that the
Moses Court “ruled that a patient does have a right to confidentiality but that
right is less than absolute….” Ms. Bailey’s Brief at 10. Ms. Bailey insists that
the trial court dismissed her negligence claim “simply because the same acts
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… [she] seek[s] to enforce against [Hospital] are prohibited by HIPAA[,]” and
contends that “HIPAA does not pre-empt all state laws[.]” Id. at 10, 11.
Here, in addressing Ms. Bailey’s negligence claim, the trial court
reasoned:
To state a negligence claim, a plaintiff must establish that (i) the
defendant owed the plaintiff a duty of care; (ii) the defendant
breached the duty of care; (iii) the breach resulted in the plaintiff’s
injury and (iv) the plaintiff suffered actual loss or damage.
Even assuming that Ms. Bailey’s allegations are true, as the
[c]ourt must do at this stage of the proceedings, the duty Ms.
Bailey alleges … Hospital owed her is a statutory creation of HIPAA
and not actionable. Ms. Bailey alleges that her medical
information is identified health information under HIPAA. Ms.
Bailey concedes that HIPAA does not create a private right of
action to enforce improper disclosure. Thus, in pleading her
negligence claim, Ms. Bailey is attempting to thread an impossible
needle. She seeks to have this [c]ourt impose a common law duty
on … Hospital regarding disclosure of medical information. But
the very disclosure requirements she claims were violated are
statutorily created by and covered under HIPAA, and she concedes
that there is no private right of action to enforce HIPAA. To get
around this hurdle, Ms. Bailey seeks to convert HIPAA’s disclosure
requirements into a common law duty.
Ms. Bailey avers that the court should impose a duty on healthcare
providers to protect healthcare information. She further alleges
that imposing the duty will “promote the privacy goal of HIPAA.”
Ms. Bailey’s [r]esponse to the [m]otion for [j]udgment on the
[p]leadings notes that the [a]mended [c]omplaint’s inclusion and
citation to HIPAA was done as a “standard to gage [sic]
[Hospital’s] duties and the reasonableness of its action and as [an]
example of how this action against [Hospital] promotes the policy
goals of HIPAA and 28 Pa. Code § 115.27.” Ms. Bailey’s [Rule]
1925(b) [s]tatement similarly states that she only “mentions”
HIPAA “to enunciate the standard of care and policy goals these
laws already apply to [Hospital].” Because HIPAA does not confer
a private right of action, HIPAA cannot be the source of the duty
supposedly owed to Ms. Bailey.
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In any negligence action, the complaint must state a duty
of care owed by the defendant to the plaintiff and allege
facts that would demonstrate the defendant’s breach of
that duty. Ms. Bailey fails to identify any other source of a
duty of care … Hospital owed to her. In the absence of an
actionable duty, there can be no negligence claim. Thus,
because Ms. Bailey has not stated a negligence claim, the [c]ourt
granted … Hospital’s motion and entered judgment in its favor on
Count I.
TCO at 3-4 (internal citations and footnote omitted; some brackets and
emphasis added).
We agree with the trial court that, when responding to Hospital’s motion
for judgment on the pleadings below, Ms. Bailey failed to sufficiently identify
a source of a duty of care owed to her, aside from HIPAA and 28 Pa. Code §
115.27. It is well-established that the existence of a duty is a question of law.
Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 221 (Pa. 2018).
Nevertheless, Ms. Bailey does not point us to where in her response and sur-
reply to Hospital’s motion for judgment on the pleadings she cited case law
establishing that a common law duty exists, or where she addressed — and
applied — the relevant authority for determining if a court should impose a
previously unrecognized duty of care. See Pa.R.A.P. 2119(e); Pa.R.A.P.
302(a); Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000)
(“The determination of whether a duty exists in a particular case involves the
weighing of several discrete factors which include: (1) the relationship
between the parties; (2) the social utility of the actor’s conduct; (3) the nature
of the risk imposed and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the actor; and (5) the overall public
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interest in the proposed solution.”); see also Walters, 187 A.3d at 222
(explaining that the Court relies upon the Althaus factors to assist it in
identifying a previously unrecognized duty) (citation omitted). Further, our
own review of Ms. Bailey’s filings uncovers no such references accompanied
by meaningful argument.3, 4
Given Ms. Bailey’s undeveloped arguments below concerning any
common law duty, we agree with the trial court that Hospital is entitled to
judgment as a matter of law on this issue. Ms. Bailey did not demonstrate
that a common law duty exists, or should exist, to support her negligence
cause of action.5 As a result, based on the arguments before it, the trial court
____________________________________________
3 Ms. Bailey cites to Pennsylvania case law purportedly establishing a common
law duty to protect patients’ confidential information (namely, Moses) for the
first time in her appellate brief.
4 We recognize that Ms. Bailey made some allegations in her complaint
concerning the need for, and consequences of, imposing a duty on Hospital.
For example, she alleged that “[e]lectronic record collection and cyber hacking
pose an increasing huge [sic] risk on society that private and confidential
healthcare information will be exposed[,]” and that “[t]he consequences of
imposing … a duty of care upon [Hospital] will be limited, and not broad-
based….” Amended Complaint at ¶¶ 37, 38. However, these statements are
very general and vague, and do little to help establish that a duty of care
should be imposed on Hospital.
5 Ms. Bailey’s appellate brief also contains a meager analysis of this issue.
Although Ms. Bailey cites to Moses in her appellate brief to support the
existence of a common law duty, the Moses Court discerned that the plaintiff
in that matter failed to state a cause of action for breach of confidentiality
under the facts of that case. Moses, 549 A.2d at 953. Moreover, Ms. Bailey
still does not discuss, or meaningfully apply, any authority relating to how a
court determines whether to impose a previously unrecognized duty of care.
See Ms. Bailey’s Brief at 7-10.
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reasonably concluded that Ms. Bailey “fails to identify any other source of a
duty of care [besides HIPAA and 28 Pa. Code. § 115.27] that … Hospital owed
to her. In the absence of an actionable duty, there can be no negligence
claim.” TCO at 4. See also id. at 1 (“The [c]ourt concluded that the Hospital
owed no actionable duty to Ms. Bailey….”). Thus, Ms. Bailey’s first issue
warrants no relief.6
Second Issue
We next turn to Ms. Bailey’s second issue. Ms. Bailey argues that the
trial court erred in dismissing both counts of her complaint because “Count I
of the [a]mended [c]omplaint sufficiently pled negligence of employees within
the scope of their employment and Count II sufficiently pled negligent hiring
that was foreseeable and involved a special relationship between [Ms.] Bailey
and [Hospital].” Ms. Bailey’s Brief at 20. We disagree.
First, with respect to Ms. Bailey’s claim that Count I of her complaint
sufficiently pled that the employees acted negligently within the scope of their
employment, we have already determined that she failed to establish any
actionable duty that Hospital or its employees owed to her within the scope of
their employment. Accord TCO at 6 (determining that Ms. Bailey did not
present “any actionable duty … Hospital or its employees, acting within the
____________________________________________
6 Though we determine that Ms. Bailey has not demonstrated that a common
law duty exists — or should be imposed — in this case, we in no way mean to
foreclose the possibility that another party in the future may convince us to
recognize such a duty.
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scope of their employment, owed to her”). Therefore, this argument lacks
merit.
Second, regarding her negligent hiring claim in Count II of her
complaint, Ms. Bailey contends that she sufficiently pled negligent hiring
because she pled foreseeability and a special relationship between Ms. Bailey
and Hospital. Ms. Bailey’s Brief at 15. Problematically, though, she ostensibly
advances her negligent hiring claim under Section 317 of the Restatement
(Second) of Torts. See id. at 16 (“Count II states a key element of a negligent
hiring claim under Section 317 of the Restatement Second of Torts – that the
employees were acting outside of the scope of their employment and not in
furtherance if [sic] the employer’s business.”); see id. at 17 (discussing
Section 317).7 Section 317 provides:
A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as
to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily
harm to them, if
(a) the servant
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7 To the extent Ms. Bailey brings her negligent hiring claim pursuant to a legal
theory other than Section 317, we deem such claims too unclear and
undeveloped to address, and therefore waived. Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various issues that
have been preserved, it is an appellant’s duty to present arguments that are
sufficiently developed for our review. … This Court will not act as counsel and
will not develop arguments on behalf of an appellant. Moreover, when defects
in a brief impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.”) (citations
omitted).
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(i) is upon the premises in possession of the master
or upon which the servant is privileged to enter only
as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability
to control his servant, and
(ii) knows or should know of the necessity and
opportunity for exercising such control.
RESTATEMENT (SECOND) OF TORTS § 317 (1965) (emphasis added).
Comment c to Section 317 elaborates:
c. Retention in employment of servants known to
misconduct themselves. There may be circumstances in
which the only effective control which the master can
exercise over the conduct of his servant is to discharge the
servant. Therefore the master may subject himself to
liability under the rule stated in this Section by
retaining in his employment servants who, to his
knowledge, are in the habit of misconducting
themselves in a manner dangerous to others. This is
true although he has without success made every other
effort to prevent their misconduct by the exercise of his
authority as master. Thus a railroad company which knows
that the crews of its coal trains are in the habit of throwing
coal from the cars as they pass along tracks laid through a
city street, to the danger of travelers, is subject to liability
if it retains the delinquents in its employment, although it
has promulgated rules strictly forbidding such practices.
RESTATEMENT (SECOND) OF TORTS § 317 cmt. c (1965) (emphasis added).
Accordingly, Section 317 explicitly requires that the master knew, or
should have known, of the necessity for controlling his or her servant, and Ms.
Bailey acknowledges that she must prove such knowledge. See Ms. Bailey’s
Brief at 15 (conceding that “it is true[] employer knowledge must be proven
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at trial”); id. at 17 (“What the employer knew or should have known is a
question of evidence. It’s a thing that Ms. Bailey has to prove at trial.”).
Nevertheless, she failed to plead that Hospital knew or should have known of
its need to control the employees who allegedly mishandled her test results
and treated her with hostility. Merely pleading foreseeability and a special
relationship are not sufficient to sustain Ms. Bailey’s cause of action under
Section 317. See Foster v. UPMC South Side Hosp., 2 A.3d 655, 666 (Pa.
Super. 2010) (“Pennsylvania is a fact-pleading state; a complaint must not
only give the defendant notice of what the plaintiff’s claim is and the grounds
upon which it rests, but the complaint must also formulate the issues by
summarizing those facts essential to support the claim.”) (citation omitted).
Accordingly, we agree with the trial court that Ms. Bailey failed to state a claim
for negligent hiring pursuant to Section 317.
Order affirmed.
Judge Kunselman joins this memorandum.
Judge Nichols files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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