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

J-S02037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CONCURRING AND DISSENTING MEMORANDUM BY NICHOLS, J.:
FILED OCTOBER 26, 2021
I concur with the majority’s disposition of Appellant’s Section 317 claim.
I respectfully dissent from the majority’s affirmance of Appellant’s remaining
claims, as Appellant has, in my belief, adequately pled the necessary elements
needed to withstand a motion for judgment on the pleadings. I briefly explain
my reasons.
In my view, Appellant has sufficiently pled a cause of action for
negligence, including a duty. I believe the trial court, before granting
Hospital’s motion for judgment on the pleadings, should have resolved
whether Pennsylvania recognized a common law duty to protect patients’
confidential health information. See generally Charlie v. Erie Ins. Exch.,
100 A.3d 244, 250 (Pa. Super. 2014); Haddad v. Gopal, 787 A.2d 975 (Pa.
J-S02037-21
Super. 2001); cf. Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C.,
102 A.3d 32 (Conn. 2014) (cited by Appellant). The trial court should have
also resolved, if necessary, whether such a duty was preempted. See
generally PPL Elec. Utils. Corp. v. City of Lancaster, 214 A.3d 639 (Pa.
2019); Dooner v. DiDonato, 971 A.2d 1187 (Pa. 2009). Similarly, in my
view, Appellant did not waive her argument addressing common law negligent
hiring and, in fact, pled the required elements. See Brezenski v. World
Truck Transfer, Inc., 755 A.2d 36, 39-40 (Pa. Super. 2000). Accordingly, I
respectfully concur in part and dissent in part.
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