Slater, A. v. Saint Vincent Health Center

J-A01022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AUDREY J. SLATER, INDIVIDUALLY AND IN THE SUPERIOR COURT OF
AS THE EXECUTRIX OF THE ESTATE OF PENNSYLVANIA
DONALD R. SLATER
v.
SAINT VINCENT HEALTH CENTER
APPEAL OF: ESTATE OF DONALD R.
No. 896 WDA 2016
SLATER
Appeal from the Order Entered May 18, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 13332-2012
BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017
Appellant, the Estate of Donald R. Slater, appeals from the order
entered on May 18, 2016, which granted the motion for summary judgment
filed by Saint Vincent Health Center (hereinafter “SVHC”). We affirm.
The trial court ably summarized the underlying facts of this case. We
quote a portion of the trial court’s opinion:
In March[] 2006, Donald R. Slater was hospitalized at
Hamot Medical Center [(hereinafter “Hamot Medical Center”
or “Hamot”)] as a result of a motorcycle accident. During
his stay at Hamot, Mr. Slater was involved in a fall that
resulted in his paralysis from the waist down. He was
released from Hamot in April[] 2006. Mr. Slater [and Mr.
Slater’s wife, Audrey J. Slater (hereinafter “Audrey Slater”
or “Mrs. Slater”),] filed a lawsuit on August 4, 2006 against
Hamot for injuries related to [Mr. Slater’s] care [and] fall.
Trial Court Opinion, 5/18/16, at 1.
*Retired Senior Judge assigned to the Superior Court.
J-A01022-17
The Slaters’ action against Hamot was docketed in the Court of
Common Pleas of Erie County, at number 12290-2006. Their complaint
against Hamot reads, in relevant part, as follows:
3. On or about March 30, 2006, [Mr. Slater] presented to
the Hamot Medical Center Emergency Department via
ambulance.
4. Mr. Slater was admitted to Hamot [] where he underwent
an MRI of the thoracic spine revealing type “B” thoracic
fracture with complete disruption of the anterior and
posterior ligamentis complexes.
5. On or about April 4, 2006, [Mr. Slater] underwent
thoracic spine surgery receiving a laminectomy at T2-3 with
a fusion and pedicle screws implanted.
6. Post-operatively[, Mr. Slater] received physical therapy
services where he walked with assistance including
personnel and a walker.
7. [Mr. Slater] was fitted with a back brace and was
encouraged by staff to ambulate with assistance.
8. On or about April 9, 2006, [Mr. Slater], a patient in Room
448, was assisted with ambulation to the bathroom by two
[] patient care assistants [(hereinafter “PCAs”)] who walked
on each side of [Mr. Slater] supporting him under the arm
and shoulder.
9. Upon information and belief, after accompanying [Mr.
Slater] to the bathroom, the two [] PCAs departed from
Room 448, leaving [Mr. Slater] alone and unattended.
10. [Mr. Slater] rang for assistance to be accompanied from
the bathroom back to bed, and one PCA responded to the
bathroom to assist him.
11. The sole PCA who responded to the call guided [Mr.
Slater] from behind while [Mr. Slater] walked from the
bathroom to bed.
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12. [Mr. Slater] dropped to the floor landing on his knees
and twisting his back.
...
16. On or about April 17, 2006, [Mr. Slater] received
additional surgery and it was determined the T-3 lamina
was causing some depression of the dural sac laterally, an
incomplete spinal cord injury.
17. Despite repair of the refractured T-3 portion of [Mr.
Slater’s] spine, he has been unable to bear weight since the
fall described heretofore that occurred on April 9, 2006.
...
19. [Hamot], through its agents, servants and/or
employees, acting within the scope of their agency and/or
employment, were negligent and their negligence was a
substantial factor in producing harm to [Mr. Slater] and/or
increased risk to [Mr. Slater] in some or all of the following
particulars:
...
20. As a direct and proximate result of the conduct set
forth heretofore, [Mr. Slater] has suffered the following
injuries and damages:
a. [Mr. Slater] was been the victim of a long period of
pain and suffering;
b. [Mr. Slater’s] ability to walk has been eliminated or
substantially reduced;
c. [Mr. Slater’s] ability to stand and bear weight has
been eliminated or substantially reduced;
...
e. [Mr. Slater’s] recovery from injuries sustained in the
motorcycle accident of March 30, 2006 was interrupted
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and, in fact, lost as a result of [Mr. Slater’s] fall on April
9, 2006;
f. [Mr. Slater’s] T-3 vertebrae was refractured;
g. [Mr. Slater] suffered an incomplete disruption of the
spinal cord;
...
k. [Mr. Slater’s] bowel and bladder functions have been
substantially impaired;
...
21. [Audrey Slater] is entitled and demands such damages
as a result of loss of consortium. . . .
WHEREFORE, [the Slaters] claim damages from [Hamot] in
excess of the limits of arbitration. . . .
Audrey J. Slater, Individually and as the Executrix of the Estate of Donald R.
Slater Complaint Against Hamot, 8/4/06, at 1-6.
As the trial court explained:
Due to his paralysis, Mr. Slater was bound to a wheelchair
and was required to self-catheterize daily. The self-
catheterization caused [Mr. Slater] repeated urinary tract
infections.
On August 14, 2006, Mr. Slater presented to [SVHC] with
sepsis caused by multiple urinary tract infections. On
August 16, 2006, Dr. Fred W. Holland, a cardiothoracic
surgeon, performed an aortic valve replacement on Mr.
Slater. Dr. Holland left the hospital at 5:30 p.m. that day.
Around 7:00 p.m., Mr. Slater’s condition began to
deteriorate – his central venous pressure rose, his blood
pressure fell and drainage from his chest tube increased.
Nurses updated Dr. Holland regarding Mr. Slater’s
worsening condition via [tele]phone calls. Dr. Holland
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issued verbal orders in response. Dr. Holland did not return
to the hospital to respond to Mr. Slater’s condition.
At some point in the evening of August 16, 2006, Dr.
Holland told the nurses to call Dr. James P. Takara, who
was on call, to respond to Mr. Slater’s symptoms.
According to Dr. Takara, he was informed of Mr. Slater’s
condition around 8:30 p.m. and left his house at 8:46 p.m.
The medical records show Dr. Takara arrived at the hospital
at 8:50 p.m.
Mr. Slater coded at 8:50 p.m. and was taken to the
operating room at 9:35 p.m. Mr. Slater suffered an anoxic
brain injury due to a lack of oxygen flowing to his brain.
Doctors informed Mr. Slater’s family he would not recover.
Care was withdrawn and Mr. Slater died on August 19,
2006. The death certificate authored by Dr. Holland
identified the cause of death as multiple organ failure and
endocarditis.
After Mr. Slater’s death, Audrey Slater was substituted as
the Plaintiff against Hamot individually and as Executrix of
the Estate of Donald R. Slater.
Trial Court Opinion, 5/18/16, at 1-2.
The lawsuit against Hamot settled on April 8, 2010 – or, approximately
four years after Mr. Slater died – when Audrey J. Slater, Individually and as
the Executrix of the Estate of Donald R. Slater, executed a “Full and Final
Release” (hereinafter “the Release”). In relevant part, the Release declares:
FULL AND FINAL RELEASE
1. FOR AND IN CONSIDERATION of the sum of
[$125,000.00] payable within [30 days] of the receipt of
this executed Full and Final Release, the undersigned
hereby fully and forever releases, acquits, and discharges:
HAMOT MEDICAL CENTER, its trustees, members,
successors, affiliates, directors, officers, employees, nurses,
therapists, technicians, agents and servants, and ANY AND
ALL OTHER PERSONS, CORPORATIONS AND/OR OTHER
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ENTITIES that are or might be claimed to be liable to the
undersigned whether or not named herein, including the
heirs, executors, administrators, successors, assigns,
attorneys, insurers, servants and employees of each of
them (hereafter referred to collectively as “Releasees”),
third party administrators, from any and all actions, causes
of action, claims or demands, of whatever kind or nature,
for any known or unknown injuries, losses or damages
allegedly sustained by the undersigned and related in any
way to any incident and/or medical or professional health
care services rendered by and/or on the premises of any
Releasee and on account of which a Legal Action was
instituted by the undersigned in the Court of Common Pleas
of Erie County, Pennsylvania at No. 12290-2006, or at any
other number or in any other Court.
2. The acceptance of said sum is in full accord and
satisfaction of a disputed claim and the payment of said
sum is not an admission of any liability.
3. This release and settlement is intended to cover and does
cover not only all now known injuries, losses or damages,
but any future injuries, losses or damages not now known
or anticipated, but which may later develop or be
discovered, including all the effects and consequences
thereof.
4. The amount stated in this Full and Final Release is the
consideration of this release, and the undersigned
voluntarily accepts said sum for the purpose of making a full
and final compromise, adjustment and settlement of all
claims that she and the Estate of Donald R. Slater might
now or in the future have for any injuries, losses or
damages.
5. This is the complete release agreement, and there are no
written or oral understanding or agreements, directly or
indirectly connected with this release and settlement that
are not incorporated herein.
6. The undersigned agrees, on behalf of herself, the Estate
of Donald R. Slater and on behalf of all of its heirs,
beneficiaries, successors and/or assigns, to indemnify and
save forever harmless the Releasees from and against any
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and all claims, demands or actions, known or unknown,
made against the Releasees by any person or entity on
account of, or in any manner related to the injuries, losses
and/or damages covered by this Full and Final Release.
...
11. THE UNDERSIGNED HEREBY DECLARES that she has
capacity and is duly authorized to enter into this Full and
Final Release, that she has read all of the terms of this Full
and Final Release, has discussed them or had the
opportunity to discuss them with her legal counsel, fully
understands them and accepts them for the express
purposes of settling the above-described claim and for
precluding forever any further or additional legal action
arising out of the aforesaid claims and/or circumstances.
IN WITNESS WHEREOF, I have set my hand and seal this
8th day of April, 2010.
/s__________________________
Audrey Slater, Individually and as
Administratrix of the Estate of
Donald R. Slater, deceased
Release, dated 4/8/10, at 1-3 (emphasis in original).
On October 2, 2012, Audrey J. Slater, Individually and as the Executrix
of the Estate of Donald R. Slater (hereinafter “the Plaintiff”), instituted the
current wrongful death and survival action against SVHC, by filing a praecipe
for a writ of summons. In her complaint, the Plaintiff raised corporate
negligence claims against SVHC; in essence, the Plaintiff alleged that SVHC
was negligent on August 16, 2006, when it failed to ensure that doctors
“timely appear[ed]” to care for Mr. Slater. The Plaintiff’s operative complaint
declared, in relevant part:
4. [Audrey Slater] brings this action on [her] own behalf
and on behalf of all persons entitled to recover damages for
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the survival action and wrongful death of Donald R. Slater
pursuant to 42 Pa.C.S.A. §§ 8301 & 8302[] and Pa.R.C.P.
[]2202(a).
...
6. During his lifetime, Donald R. Slater did not commence
any action to recover damages for the injuries which caused
his death, and no other action has been filed to recover
damages for the wrongful death or survival claim of Donald
R. Slater.
...
I. Factual Background: Tolling the Statute of
Limitations for Wrongful Death and Survival Claim of
Donald R. Slater Based on Medical Negligence
14. At the time of [Donald Slater’s] death, [SVHC]
fraudulently concealed[], affirmatively misrepresented[,]
and[/]or unintentionally deceived [] the facts and
circumstances that [led] to Mr. Slater’s death from his
family by:
a) failing to advise Mr. Slater or his family that a serious
event had occurred;
b) failing to advise in writing noncompliance with
Department of Health regulations where that
noncompliance seriously compromises quality assurance
or patient care for Mr. Slater;
c) leaving out of Mr. Slater’s medical records the details
regarding his care on August 16, 2006, including the
failure of doctors to appear when he was critically ill;
...
16. In light of these actions by [SVHC], the statute of
limitations to assert a claim for Mr. Slater’s wrongful death
and survival claims has been tolled, until his family learned
what happened regarding his medical care.
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II. Factual Background for the Medical Negligence
that Caused the Brain Death of Donald R. Slater
17. On August 16, 2006, Mr. Slater had aortic valve repair
as the result of the diagnosis of endocarditis, performed by
Dr. Holland.
18. By 4:30 [p.m.], Mr. Slater had returned to his room, but
monitoring of his condition did not begin immediately.
19. By 7:00 [p.m.] to 8:00 [p.m.] that day, Mr. Slater’s
central venous pressure was rising, his blood pressure was
falling[,] and he had increased drainage from his chest
tube, indicating he had developed tamponade.
20. According to testimony of nursing witnesses in Holland
v. Saint Vincent Health Center, Erie County docket 15461-
2007, nurses were calling Dr. Holland to come to the
hospital to attend to his critically ill patient, Mr. Slater, who
needed a cardiothoracic surgeon to relieve the symptoms
that had developed.
21. According to Dr. Holland, he told the nurses, after he
signed out at 5:30 [p.m.] on August 16, 2006 and during
subsequent phone calls, to call the on-call cardiothoracic
surgeon, Dr. Takara regarding further care needed for Mr.
Slater.
22. According to Dr. Takara, he was never advised
regarding the critically ill Mr. Slater until sometime between
8:20 [p.m.] August 16, 2006 and 8:40 [p.m.] that same
evening, and left his house at 8:46 [p.m.].
23. According to medical records, Dr. Takara arrived at 8:50
[p.m.] on August 16, 2006, which is not possible because
Dr. Takara’s statement says he left his house at 8:46
[p.m.].
24. Mr. Slater coded at 8:50 [p.m.] on August 16, 2006.
25. He was not taken to the operating room until 9:35
[p.m.] on August 16, 2006.
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26. As a result of the extended period of time without
oxygen to his brain, Mr. Slater suffered an anoxic brain
injury.
27. Mr. Slater’s family was told there was no hope of
recovery from the anoxic brain injury, care was
discontinued and he expired on August 19, 2006.
28. This was not the first time a patient died at [SVHC] as
the result of a doctor not timely appearing. . . .
29. Prior to Mr. Slater’s death, [SVHC] had been told
numerous times . . . about doctors not timely appearing or
being slow to respond to pages.
30. Though . . . [SVHC] had received prior complaints about
doctors not appearing timely or being slow to respond to
pages prior to Mr. Slater’s death, it did not take definitive
steps and put in place controls to correct this problem,
which is outrageous, and in reckless disregard to the safety
of its patients, and Mr. Slater in particular.
Count I
Estate of Donald R. Slater v. [SVHC]
Corporate Negligence – Punitive Damages
Survival Claim
...
33. [SVHC] breached the duty it owed when:
a) it did not correct the problem of doctors not timely
appearing after a patient died in 2004 as the result of a
doctor not appearing and the failure to have a surgeon
present for a critically ill cardiac patient;
...
c) it did not implement a training and a warning system
for the hospital and staff to alert administration that a
doctor was not timely appearing;
d) it did not fire doctors who were slow to respond or
who did not timely appear; and
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e) it did not implement a doctor call system that
included protocols for the patient who not being cared
for by the doctor who was not appearing.
34. As a result of [SVHC’s] breach of the duties owed,
[SVHC] caused and allowed Mr. Slater to suffer an anoxic
brain injury.
...
36. As a result of the previously described negligent conduct
of [SVHC], Mrs. Slater brings this survival action . . . and
seeks damages for the following items:
a) Pain, suffering, inconvenience, anxiety, fear and
nervousness of Mr. Slater on August 16, 2006;
b) Additional pain he had to endure as the result of the
failure to promptly address his tamponade;
c) Mr. Slater’s lost retirement income; and
d) Unnecessary hospital, medical, surgical and nursing
expenses incurred on his behalf.
37. [SVHC] knew, or had reason to know, of the substantial
risk of death to Mr. Slater as the result of the failure of a
doctor to appear for a critically ill patient.
38. [SVHC] deliberately failed to act, was indifferent to and
recklessly disregarded the substantial risk of death to a
patient, and to Mr. Slater in particular, when a doctor does
not appear for a critically ill patient, which is outrageous.
WHEREFORE, Plaintiff Mrs. Slater, individually and as
administrator of the Estate of Donald R. Slater, demands
judgment be entered in favor of the Estate, for
compensatory damages, punitive damages, and other sums
in excess of the limits of arbitration. . . .
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Count II
Estate of Donald R. Slater v. [SVHC]
Corporate Negligence
Wrongful Death
...
40. As a result of the previously described negligent conduct
of [SVHC], Mrs. Slater is entitled by law to recover damages
for Mr. Slater’s wrongful death and has sustained the
following damages:
a) She has expended money for medical service and
supplies incident to the treatment and subsequent death
of Mr. Slater;
b) She has expended money for funeral and estate
expenses because of the death of Mr. Slater;
c) She has been denied and will forever be deprived of
the financial support, household services and all
pecuniary benefits that [she] would have received from
Mr. Slater; and
d) She has incurred and will continue to incur the
expenses of administration of the Estate of Mr. Slater.
WHEREFORE, Plaintiff Mrs. Slater, individually and as
administrator of the Estate of Donald R. Slater, demands
judgment be entered in favor of the Estate, for
compensatory damages, and other sums in excess of the
limits of arbitration.
The Plaintiff’s Second Amended Complaint, 12/18/12, at 1-10 (internal
italicization omitted and some internal capitalization omitted).
On May 18, 2015, SVHC filed a motion for summary judgment. SVHC
sought summary judgment on the following five bases:
1) Plaintiff failed to file the within action within the
applicable statute of limitations and the statute of
limitations should not be tolled as [SVHC] did not
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affirmatively conceal any facts relative to Mr. Slater’s
admission; 2) Plaintiff [is] seeking duplicative damages
under the Wrongful Death Act; 3) Plaintiff[‘s] claims are
barred per the Release entered into within the Slater v.
Hamot Medical Center case; 4) [SVHC] was not
corporately negligent in the care or treatment of Mr.
Slater[] and[,] Plaintiff [has] not submitted any facts to
support a claim for punitive damages.
SVHC’s Motion for Summary Judgment, 5/18/15, at 2.
With respect to these grounds, SVHC first argued that it was entitled
to summary judgment because the statute of limitations on the Plaintiff’s
action expired. SVHC noted that the statute of limitations in this negligence
action was two years, and that the Plaintiff did not institute her current suit
until over six years after Mr. Slater’s death. Id. at 5. Further, SVHC argued
that the statute of limitations on the Plaintiff’s claims was not tolled because
SVHC “did not affirmatively conceal any facts of Mr. Slater’s care . . . [and
SVHC] complied with Mrs. Slater’s request for information and her husband’s
medical records and she decided to continue with a claim against Hamot
Medical Center for the death of her husband.” Id. at 6.
Next, SVHC argued that it was entitled to summary judgment in its
favor because the Plaintiff “already recovered damages under both the
Wrongful Death Act and Survival Act [in the] prior lawsuit” against Hamot
Medical Center. Id. To support this claim, SVHC attached certain
documents to its motion, which the Plaintiff had filed in her prior lawsuit
against Hamot. These documents were, first, proof that, following Mr.
Slater’s death, “Audrey Slater, Individually and as Administratrix of the
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Estate of Donald R. Slater” became the named plaintiff in the Hamot
lawsuit. Second, SVHC attached the Plaintiff’s pretrial statement in the
Hamot lawsuit. Within the Hamot pretrial statement, the Plaintiff wrote:
As a result of [Mr. Slater’s April 9, 2006] fall [at Hamot],
Mr. Slater was no longer able to bear any weight, and he
developed a neurogenic bowel and bladder requiring a
catheter and suppositories. [A doctor at Hamot] performed
surgery to drain the blood. Mr. Slater was transferred to
[SVHC] for further efforts at rehabilitation. He was
discharged on June 28, 2006, with no change in his
condition. Mr. Slater chose to go home rather than a
nursing home due to the cost associated with living in a
nursing home. He was required to self-catheter and needed
suppositories and received some in-home care from nurses
contracted through the Veterans Administration Hospital.
Despite their best efforts, fecal material infiltrated his
catheter and Mr. Slater became septic. Despite
administration of antibiotics, his infection returned and he
was admitted to [SVHC] in septic shock on August 10,
2006, and he passed away on August 19, 2006.
...
Plaintiff[s] contend[] that Hamot Medical Center failed to
provide a safe environment with safe equipment for Mr.
Slater increasing the risk of harm, which in fact occurred in
this case. . . . Without adequate safety precautions, Mr.
Slater fell causing the rebleeding of his surgical site, causing
impairment of his spinal cord, which manifested itself in the
neurogenic bowel and bladder, and lack of ability to bear
weight. Without the fall, Mr. Slater’s epidural
hematoma would have reabsorbed. . . . The
additional blood prevented that from happening and
led, inevitably, to neurogenic bowel and bladder, fecal
contamination, septic shock and death.
The Plaintiff’s Pretrial Statement in the Hamot Case, attached as Exhibit D
to SVHC’s Motion for Summary Judgment, at 1-3 (emphasis added).
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SVHC also attached two expert reports that the Plaintiff produced in
the litigation against Hamot. The first expert report was authored by
Matthew R. Marlin, Ph.D and entitled “The Economic Loss Resulting from the
Death of Donald R. Slater.” Expert Report by Matthew R. Marlin, Ph.D in the
Hamot Case, attached as Exhibit P to SVHC’s Motion for Summary
Judgment, at 1. The report declared that, as a result of Mr. Slater’s death,
the Plaintiff sustained economic losses from: “[1)] Mrs. Slater’s lost pension
and Social Security benefits[; 2)] Mrs. Slater’s lost health insurance[; and,
3)] the lost value of [Mr. Slater’s] household services.” Id. at 1. According
to Dr. Marlin’s report: “the economic loss resulting from the death of Mr.
Donald Slater on August 19, 2006 as the result of a fall which occurred on
April 9, 2006 equals an estimated $598,900[.00].” Id.
Further, SVHC attached another expert report that the Plaintiff
produced in the Hamot litigation. The report, which was authored by
Bernard S. Strauss, M.D., stated:
It is my opinion within a reasonable degree of medical
certainty that these bacteria, specifically E. coli and
enterococcus facalis, were introduced into Mr. Slater’s
bladder in the course of his straight catheterizations,
resulting in an acute urinary tract infection which
progressed to urosepsis and his ultimate demise.
I am of the opinion that the fall of 4/09/06 was
causally related to the development of the epidural
hemorrhage and hematoma, the neurogenic bladder,
and eventual urosepsis leading to his death.
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Expert Report by Bernard S. Strauss, M.D. in the Hamot Case, attached as
Exhibit D to SVHC’s Motion for Summary Judgment, at 4 (emphasis added).
For the third basis of SVHC’s summary judgment motion, SVHC
claimed that the Plaintiff’s case must be dismissed because the Plaintiff
“released any and all claims against [SVHC] through the general release”
that was signed on April 8, 2010, in the Hamot case. SVHC’s Motion for
Summary Judgment, 5/18/15, at 10. According to SVHC, it was entitled to
benefit from the Release because the Plaintiff broadly released named and
unnamed persons, corporations, and entities:
from any and all actions, causes of action, claims or
demands, of whatever kind or nature, for any known or
unknown injuries, losses or damages allegedly sustained by
the undersigned and related in any way to any incident . . .
on account of which a Legal Action was instituted by the
undersigned in the Court of Common Pleas of Erie County,
Pennsylvania at No. 12290-2006, or at any other number or
in any other Court.
Release, dated 4/8/10, at 1 (some internal capitalization omitted).
Further, the Release declared:
This release and settlement is intended to cover and does
cover not only all now known injuries, losses or damages,
but any future injuries, losses or damages not now known
or anticipated, but which may later develop or be
discovered, including all the effects and consequences
thereof.
Id.
SVHC also moved for summary judgment on the ground that the
Plaintiff failed to demonstrate a prima facie case of corporate negligence.
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SVHC’s Motion for Summary Judgment, 5/18/15, at 10. To support the
claims of corporate negligence, the Plaintiff submitted the expert reports of
Michael Culig, M.D. and Irvin Krukenkamp, M.D. According to SVHC, the
Plaintiff cannot use the report of Dr. Culig because it is protected by a
confidentiality agreement, the attorney-client privilege, and the Peer Review
Protection Act. Id. at 11. Further, SVHC claimed that, even if the Plaintiff
were permitted to use Dr. Culig’s report, the Plaintiff “failed to submit
competent expert testimony that the hospital breached its duty to Mr. Slater
by failing to oversee the care being provided by Dr. Holland” and the Plaintiff
did not produce “any expert testimony that Dr. Holland’s failure to come to
Mr. Slater’s bedside to care for him resulted in Mr. Slater’s death.” Id.
Finally, SVHC claimed that the Plaintiff’s claims for punitive damages
must be dismissed because the Plaintiff “failed to produce facts sufficient to
form a basis for punitive damages.” Id. at 12.
The Plaintiff responded to SVHC’s summary judgment motion, arguing
that SVHC was not entitled to relief on any of its five asserted grounds.
First, the Plaintiff argued, SVHC was not entitled to summary judgment on
the statute of limitations ground because a factual question exists as to
whether SVHC sent Mrs. Slater a “serious event letter” and because SVHC
inaccurately completed Mr. Slater’s death certificate. The Plaintiff’s Brief in
Opposition to SVHC’s Motion for Summary Judgment, 6/18/15, at 33-43.
Second, the Plaintiff argued that SVHC was not entitled to summary
judgment on its claim that the Plaintiff sought “duplicative damages under
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the Wrongful Death Act” because “[t]he [c]omplaint in the Hamot matter
does not make a claim for wrongful death or survival.” Id. at 32. Third, the
Plaintiff contended that SVHC could not obtain summary judgment with
respect to the Release, as the Plaintiff filed the complaint against Hamot on
August 6, 2006 and SVHC did not commit its negligent act against Mr. Slater
until August 16, 2006. According to the Plaintiff, “[f]rom the [R]elease
language, . . . it was intended to release anyone related to [the] medical
care at Hamot Medical Center as a result of an incident on April 9, 2006. . . .
[The Plaintiff] could not have intended to release [SVHC] for care [on]
August [16,] 2006, when [the Plaintiff] filed a complaint [against Hamot on]
August 6, 2006.” Id. at 24. Finally, the Plaintiff argued that she produced
sufficient evidence to withstand summary judgment on her corporate
negligence and punitive damage claims. See id. at 25-31.
On May 18, 2016, the trial court granted SVHC’s motion for summary
judgment and dismissed the Plaintiff’s complaint. As the trial court
explained, it granted SVHC’s summary judgment motion on every ground
but the expiration of the statute of limitations.
The Estate of Donald R. Slater (hereinafter “Appellant”) filed a timely
notice of appeal from the trial court’s order. Appellant lists 19 claims in its
Pennsylvania Rule of Appellate Procedure 2116 statement of questions
involved section:
1. A release should not be given effect to an unnamed party
for claims that do not spring out of the incident in the
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release and who was not part of the facts or incident that
gave rise to the release, as identified in the release.
2. A release should not be given effect to an unnamed party
who was not a tortfeasor regarding the incident, date and
docket number identified in the release and which gave rise
to the release.
3. A party who engaged in fraud and or concealment
regarding the Estate’s decedent, should not get the benefit
of a release as an unnamed party from an unrelated
incident, where the court found material issues of fact
regarding the unnamed party’s fraud and or concealment.
4. An executrix of an Estate could not have intended to
release unnamed parties for an incident not identified in the
release, for events on different dates than identified in the
release, or for an incident that does not rise out of the
original incident identified in the release.
5. An executrix of an Estate could not have intended to
release unnamed parties for incidents that the unnamed
party had a duty to advise them of, a serious event, and did
not, pursuant to 40 P.S. § 1303.308(b).
6. Where a hospital’s medical director did not truthfully
complete the death certificate (Krapf [v. St. Luke’s
Hospital, 4 A.3d 642 (Pa. Super. 2010)]), the hospital
should not get the benefit of a release as an unnamed party
for an unrelated incident.
7. The record substantiates a claim for punitive damages
where it demonstrates that at least two patients died in two
years as a result of doctors not appearing for critically ill
patients, the record demonstrates the hospital knew doctors
did not appear, that hospital administrators knew doctors
did not appear, the hospital administrators did [not] identify
any change in procedure or policy as a result of doctors not
appearing and multiple patients were injured.
8. The corporate negligence of this defendant is obvious
where the Estate claimed the hospital knew doctors were
not showing up and at least two patients died, is
substantiated by the hospital’s own records it allowed the
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Slater Estate to purchase in another matter from the court
reporter, where the record contains admissions by the
defendant and one of it[s] experts of underlying negligence
that caused [Mr. Slater’s] death, and the record contains
expert opinions regarding the underlying negligence that
caused patients [to] die as a result of negligence.
9. Where hospital concealed the facts surrounding the care
of [Mr. Slater] in the medical record and its medical director
misrepresented the cause of death in the death certificate,
and the decedent Estate experts in a prior claim relied on
those, the hospital should not benefit from those actions by
the dismissal of the claims against it by [Mr. Slater’s]
Estate.
10. The fraudulent concealment and or affirmative
misrepresentation of a hospital, regarding the decedent’s
death where a hospital had a duty to advise a patient of a
serious event or the patient[‘s] family, should not be
rewarded by dismissing this claim.
11. By dismissing this claim, this court perpetuates the
fraud that [Mr. Slater] died from events on the death
certificate that do not comply with the regulatory duties to
complete the death certificate and rewards the fraudulent
concealment or affirmative misrepresentation of a hospital.
12. As a result of a hospital’s fraudulent concealment or
affirmative misrepresentation, [Mr. Slater’s] Estate was
prevented from finding out the true cause of his death and
relaxed its vigilance and as such, claims against the
offending hospital should not be dismissed.
13. A wrongful death claim is not duplicative as a result of a
prior action where no Wrongful Death or Survival Claims
were ever asserted in a complaint, damages were recovered
and a release was signed.
14. Th[e trial] court committed an error of law or abused its
discretion of law in dismissing the claims against a hospital
in finding this hospital is an entity within the realm of
entities who were released in the Hamot release.
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15. Th[e trial] court committed an error of law or abused its
discretion in finding that the Slater Estate had not identified
any damages in this case that were not demanded or
recovered in the Hamot litigation.
16. Th[e trial] court committed an error of law or abused its
discretion in failing to find a prima facie case of corporate
negligence, as the corporate negligence is obvious and
there are two expert reports of the underlying negligence.
17. Th[e trial] court committed an error of law or abused its
discretion in finding the Slater Estate has failed to establish
a basis for punitive damages.
18. Th[e trial] court committed an error of law or abused its
discretion in finding that the Slater Estate failed to adduce
evidence in support of its claims for over a decade, where
there is a material issue of fact regarding [SVHC’s]
fraudulent concealment, where [SVHC] failed to truthfully
complete the death certificate, did not send serious event
letter and admitted the incident regarding Mr. Slater was a
serious event, did not advise the Department of Health of
facts that seriously compromise patient safety, and did not
note in the patient’s medical record the unusual event
having a direct medical effect on the patient.
19. Where a patient is dead, and their family has no way of
knowing the true facts as to the cause of death, and where
there is a question of fact regarding [SVHC’s] fraudulent
concealment or affirmative misrepresentation tolling the
statute of limitations, claims against [SVHC] who engaged
in that conduct should not be dismissed; dismissing the
claims against the hospital who engaged in this conduct
perpetuates and rewards this conduct.
Appellant’s Brief at 4-8 (some internal capitalization and italicization
omitted).
We will restate Appellant’s lengthy, repetitive, and rule-infringing
statement of questions involved in the following manner:
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1. The trial court erred in concluding that, when the Plaintiff
signed the Release in the Hamot case, the Plaintiff released
SVHC from the current claims because: a) SVHC was not
“an entity within the realm of entities who were released in
the Hamot litigation;” b) the facts underlying the instant
claims “do not spring out of the incident in the release and
[are] not part of the facts or incident that gave rise to the
[R]elease;” c) SVHC was not named in the Release and
“was not a tortfeasor regarding the incident, date and
docket number identified in the [R]elease and which gave
rise to the [R]elease;” d) SVHC “engaged in fraud [and/or]
concealment regarding” Mr. Slater; e) the events that gave
rise to the current lawsuit occurred on “different dates than
[those] identified in the release;” f) SVHC did not inform
Mrs. Slater of the “serious event” that occurred at SVHC;
and, g) SVHC’s medical director “did not truthfully complete
the death certificate.” See Appellant’s Brief at 4-5 and 6
(claims numbered 1-6 and 14).
2) The trial court erred in concluding that the Plaintiff
already recovered damages under the Wrongful Death Act
because “no wrongful death or survival claims were ever
asserted in” the complaint against Hamot. See Appellant’s
Brief at 6 and 7 (claims numbered 13 and 15).
3) The trial court erred in concluding that SVHC was entitled
to summary judgment with respect to the corporate
negligence claims because “[t]he corporate negligence of
[SVHC] is obvious and there are two expert reports of the
underlying negligence.” See Appellant’s Brief at 5 and 7
(claims numbered 8 and 16).
4) The trial court erred in concluding that SVHC was entitled
to summary judgment with respect to the punitive damages
claims because the record demonstrates that “at least two
patients died in two years as a result of doctors not
appearing for critically ill patients, . . . the hospital knew
doctors did not appear, [] hospital administrators knew
doctors did not appear, the hospital administrators did [not]
identify any change in procedure or policy as a result of
doctors not appearing and multiple patients were injured.”
See Appellant’s Brief at 5 and 6 (claims numbered 7 and
17).
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5) The trial court erred in granting summary judgment on
the ground that the statute of limitations had expired on the
claims because: SVHC “concealed the facts surrounding the
care of [Mr. Slater] in the medical record and its medical
director misrepresented the cause of death in the death
certificate;” SVHC “had a duty to advise a patient of a
serious event or the patient[s’] family” and did not do so;
and, “[a]s a result of [SVHC’s] fraudulent concealment or
affirmative misrepresentation, [Mr. Slater’s] Estate was
prevented from finding out the true cause of his death and
relaxed its vigilance.” See Appellant’s Brief at 5-6 and 7
(claims numbered 9-12 and 18).1
As this Court has stated:
Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of
review is clear: the trial court’s order will be reversed only
where it is established that the court committed an error of
law or abused its discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter 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 a genuine issue of material
fact against the moving party. Only when the facts are so
clear that reasonable minds could not differ can a trial court
properly enter summary judgment.
Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007)
(internal citations omitted).
____________________________________________
1
We note that the trial court did not grant summary judgment on the
ground that the statute of limitations had expired.
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First, Appellant claims that the trial court erred when it granted
summary judgment based upon the terms of the Release. Within the
argument section of Appellant’s brief, Appellant raises two claims: 1) that,
under the plain terms of the Release, the Plaintiff only released “Hamot and
others for claims made at Erie County docket 12290-2006” and, since the
Plaintiff “never made a claim against [SVHC] for the injuries sustained by
Mr. Slater at Hamot Medical Center,” the Release does not cover the
Plaintiff’s current claims and 2) that SVHC either committed fraud or
affirmative misrepresentation when it “did not inform Mrs. Slater of the
‘serious event’ and when SVHC’s medical director “did not truthfully
complete the death certificate” and, as a result of this fraud, SVHC cannot
“use this Release as a defense.”2 Appellant’s Brief at 48-50 (emphasis
omitted). We conclude that Appellant’s claims either fail or are waived.
Our Supreme Court has held:
In Pennsylvania, it is well settled that the effect of a release
is to be determined by the ordinary meaning of its
language. The enforceability of settlement agreements is
governed by principles of contract law. Courts will enforce a
settlement agreement if all its material terms have been
____________________________________________
2
Any claim that is contained in the statement of questions involved section
of Appellant’s brief but which is not contained in the argument section is
waived. Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999)
(“[the Pennsylvania Supreme Court] has held that an issue will be deemed
to be waived when an appellant fails to properly explain or develop it in his
brief”); Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa. Super. 2011)
(holding that the Superior Court “may not act as counsel for an appellant
and develop arguments on his behalf”).
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agreed upon by the parties. A settlement agreement will
not be set aside absent a clear showing of fraud, duress, or
mutual mistake.
Further support for enforcing settlement agreements
according to contract law principles is found in
[Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa.
1989),] where th[e Pennsylvania Supreme] Court opined:
Parties with possible claims may settle their differences
upon such terms as are suitable to them. They may
include or exclude terms, conditions and parties as they
can agree. In doing so, they may yield, insist or reserve
such right as they choose. If one insists that to settle,
the matter must end then and forever, as between
them, they are at liberty to do so. They may agree for
reasons of their own that they will not sue each other or
any one for the event in question. However improvident
their agreement may be or subsequently prove for either
party, their agreement, absent fraud, accident or mutual
mistake, is the law of their case.
Buttermore, 561 A.2d at 735. . . .
If such a release can be nullified or circumvented, then
every written release and every written contract or
agreement of any kind no matter how clear and pertinent
and all-inclusive, can be set aside whenever one of the
parties has a change of mind or whenever there
subsequently occurs a change of circumstances which were
unforeseen, or there were after-discovered injuries, or the
magnitude of a releasor's injuries was unexpectedly
increased, or plaintiff made an inadequate settlement.
Pennsbury Village Assocs., LLC v. McIntyre, 11 A.3d 906, 914-915 (Pa.
2011) (some internal quotations and citations omitted).
Appellant first claims that the trial court erred in granting summary
judgment based upon the terms of the Release because the Plaintiff “could
not have intended to release [SVHC] for [its] care [on] August[, 16] 2006,
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when [the Plaintiff] filed [the] complaint [against Hamot on August 6,
2006].” According to Appellant, under the plain terms of the Release, the
Plaintiff only released “Hamot and others for claims made at Erie County
docket 12290-2006” and, since the Plaintiff “never made a claim against
[SVHC] for the injuries sustained by Mr. Slater at Hamot Medical Center,”
the Release does not cover the Plaintiff’s current claims. Appellant’s Brief at
48-49 (emphasis omitted). This argument fails.
Appellant wishes for this Court to erase the expansive language
contained in this general release and interpret the Release in a manner that
the parties to the Release did not intend; specifically, Appellant wishes this
Court to hold that the Release only applies to the specific claims the
Plaintiff raised in the Hamot complaint. Appellant’s Brief at 48-50. We will
not disregard the “ordinary meaning of [the Release’s] language.”
Pennsbury Village Assocs., 11 A.3d at 914.
The language in this Release is extremely broad and declares, in
relevant part:
FOR AND IN CONSIDERATION of the sum of [$125,000.00]
. . . the undersigned hereby fully and forever releases,
acquits, and discharges: HAMOT MEDICAL CENTER . . . and
ANY AND ALL OTHER PERSONS, CORPORATIONS
AND/OR OTHER ENTITIES that are or might be
claimed to be liable to the undersigned whether or
not named herein, . . . (hereafter referred to collectively
as “Releasees”), . . . from any and all actions, causes of
action, claims or demands, of whatever kind or
nature, for any known or unknown injuries, losses or
damages allegedly sustained by the undersigned and
related in any way to any incident and/or medical or
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professional health care services rendered by and/or
on the premises of any Releasee and on account of
which a Legal Action was instituted by the
undersigned in the Court of Common Pleas of Erie
County, Pennsylvania at No. 12290-2006, or at any
other number or in any other Court.
...
This release and settlement is intended to cover and
does cover not only all now known injuries, losses or
damages, but any future injuries, losses or damages
not now known or anticipated, but which may later
develop or be discovered, including all the effects and
consequences thereof.
Release, dated 4/8/10, at 1-3 (emphasis added).
Contrary to Appellant’s claim, the Release did not merely release
“Hamot and others for claims made at Erie County docket 12290-2006.”
Appellant’s Brief at 48 (emphasis omitted). Rather, the Release released
Hamot and “any and all other persons, corporations and/or other entities
that are or might be claimed to be liable to the undersigned whether or not
named:”
I) from any and all actions, causes of action, claims or
demands, of whatever kind or nature,
A) for any known or unknown injuries, losses or
damages allegedly sustained by the undersigned and
1) related in any way
a) to any incident and/or
b) medical or professional health care services
rendered by and/or
c) on the premises of any Releasee and
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2) on account of which a Legal Action was instituted
by the undersigned in the Court of Common Pleas of
Erie County, Pennsylvania at No. 12290-2006, or at
any other number or in any other Court.
Release, dated 4/8/10, at 1-3.
Under the plain terms of the Release, the Plaintiff thus released named
and unnamed individuals and entities “from any and all actions, causes of
action, claims or demands . . . for any known or unknown injuries, losses or
damages [they] sustained” that were “related in any way to any incident
. . . on account of which a Legal Action was instituted by the undersigned in
the Court of Common Pleas of Erie County, Pennsylvania at No. 12290-2006,
or at any other number or in any other Court.” Id. (emphasis added). The
great breadth of this language plainly thwarts Appellant’s specific claim on
appeal: that the Release only released “Hamot and others for claims made
at Erie County docket 12290-2006 . . . [and, since the Plaintiff] never made
a claim against [SVHC] for the injuries sustained by Mr. Slater at Hamot
Medical Center,” the Release does not cover the Plaintiff’s current claims.
Appellant’s Brief at 48-50 (emphasis added). To be sure, since the Release
covered claims for damages or injuries “related in any way to any
incident . . . on account of which a Legal Action was instituted by the
undersigned in the Court of Common Pleas of Erie County, Pennsylvania at
No. 12290-2006, or at any other number or in any other Court,” the Release
plainly extended beyond the specific “claims made at Erie County docket
12290-2006.” Release, dated 4/8/10, at 1-3 (emphasis added); Appellant’s
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Brief at 48 (emphasis omitted). Therefore, Appellant’s claim on appeal
immediately fails.3
With respect to the Release, Appellant also claims that SVHC either
committed fraud or affirmative misrepresentation when it did not inform Mrs.
Slater of the “serious event” and when SVHC’s medical director “did not
truthfully complete the death certificate.” Appellant’s Brief at 49-50.
Although Appellant acknowledges that “there [was] no fraud or mistake in
procuring the Hamot release,” Appellant claims that it alleged that SVHC
committed an independent fraud and, as a result, SVHC cannot “use this
Release as a defense.” Id. at 49-50. This claim is waived because: 1)
Appellant did not raise the claim in its response to SVHC’s motion for
summary judgment; 2) Appellant has cited to absolutely no case law to
support its claim; and, 3) besides Appellant’s conclusory statement,
____________________________________________
3
In the argument section of Appellant’s brief, Appellant does not claim that
the trial court erred when it relied upon the pretrial statement and expert
reports the Plaintiff filed in the Hamot litigation, to support its grant of
summary judgment. See Appellant’s Brief at 46-50. The trial court used
the pretrial statement and expert reports the Plaintiff filed in the Hamot
litigation as proof that the Plaintiff’s current claims were “related” “to any
incident” “on account of which a Legal Action was instituted . . . in the Court
of Common Pleas of Erie County . . . at No. 12290-2006” – and, thus, that
the Plaintiff’s current claims are subsumed by the Release. Trial Court
Opinion, 5/18/16, at 6-7. Since Appellant does not claim error in this regard
and since Appellant does not contest the trial court’s conclusion that the
pretrial statement and expert reports establish that the current claims are
“related” “to any incident” “on account of which a Legal Action was instituted
. . . in the Court of Common Pleas of Erie County . . . at No. 12290-2006,”
we will not discuss this issue further.
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Appellant has provided this Court with no argument to support the claim.
See The Plaintiff’s Brief in Opposition to SVHC’s Motion for Summary
Judgment, 6/18/15, at 22-25; Appellant’s Brief at 48-50; see also Harber
Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100,
1104-1105 (Pa. Super. 2000) (“[b]ecause, under [Pennsylvania Rule of Civil
Procedure] 1035.3, the non-moving party must respond to a motion for
summary judgment, he or she bears the same responsibility as in any
proceeding, to raise all defenses or grounds for relief at the first opportunity.
A party who fails to raise such defenses or grounds for relief may not assert
that the trial court erred in failing to address them”); Spotz, 716 A.2d at
585 n.5 (“[the Pennsylvania Supreme Court] has held that an issue will be
deemed to be waived when an appellant fails to properly explain or develop
it in his brief”); Rabatin, 24 A.3d at 396 (holding that the Superior Court
“may not act as counsel for an appellant and develop arguments on his
behalf”).
We thus conclude that Appellant is not entitled to relief on its claim
that the trial court erred when it granted summary judgment based upon the
terms of the Release. Therefore, we will not consider the remainder of
Appellant’s claims.
Order affirmed. SVHC’s Application to Strike Appellant’s Reply Brief
denied. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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