Estate of Denmark Ex Rel. Hurst v. Williams

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2015 PA Super 101ESTATE OF ARTHUR DENMARK, BY AND : IN THE SUPERIOR COURT OF
THROUGH HIS ADMINISTRATOR, : PENNSYLVANIA
ANTHONY W. HURST, SR., :
:
Appellant :
:
v. :
:
JOSEPH WILLIAMS, M.D., RAVINDRA C. :
HALLUR, M.D., MERCY PHILADELPHIA :
HOSPITAL AND MERCY HEALTH :
SYSTEM, :
:
Appellees : No. 1900 EDA 2014
Appeal from the Order May 27, 2014,
Court of Common Pleas, Philadelphia County,
Civil Division at No. 01133
BEFORE: BOWES, DONOHUE and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED APRIL 28, 2015
Appellant, the Estate of Arthur Denmark, by and through its
administrator, Anthony W. Hurst, Sr. (“Hurst”), appeals from the trial court’s
order dated May 27, 2014. On appeal, Hurst contends that the trial court
erred in dismissing his claims for vicarious liability and corporate negligence
against Appellees Mercy Philadelphia Hospital and Mercy Health System
(together, “Mercy” or the “Mercy entities”). For the reasons that follow, we
reverse and remand this case to the trial court so that Hurst may proceed on
his amended complaint against the Mercy entities on his claims for vicarious
liability and corporate negligence.
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Hurst commenced this action on June 1, 2012 by filing a complaint
naming four defendants, Ravindra C. Hallur, M.D. (“Dr. Hallur”), Joseph
Williams, M.D. (“Dr. Williams”), and the Mercy entities. Dr. Hallur and the
Mercy entities filed preliminary objections, in response to which Hurst filed
an amended complaint.
In his amended complaint, Hurst alleged that Arthur Denmark
(“Denmark”) was admitted to Mercy Philadelphia Hospital on March 12, 2010
to undergo a tracheotomy as a result of his emphysema. Amended
Complaint, ¶¶ 6-7. Hurst further alleged that after the tracheotomy,
Denmark was alert and responsive until March 18, 2010, when he “was
permitted to either attempt to leave his bed unassisted or fell out of his
bed.” Id. ¶¶ 8-9. His fall resulted in the dislocation of a catheter, and
surgery had to be scheduled because the catheter could not be replaced at
bedside. Id. ¶¶ 10-11. According to Hurst, during the surgery, which was
performed by Dr. Williams, Denmark’s bladder was severely lacerated. Id.
¶¶ 12-13. Hurst also alleged that following the surgery, Denmark’s care was
managed by Drs. Williams and Hallur. Id. ¶ 14. Gauze was negligently left
in Denmark’s body after the surgery was complete and the stitches applied,
and blood continued to be present in Denmark’s urine. Id. ¶¶ 15-16. Hurst
contends that as a result of the Defendants’ negligence, Denmark developed
septic shock and died on April 2, 2010. Id. ¶¶ 17-18.
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Counts I and II of Hurst’s amended complaint set forth causes of
action against Drs. Williams and Hallur, respectively, for negligence. Counts
III and IV stated causes of action against the Mercy entities for vicarious
liability and corporate negligence. Counts V and VI set forth causes of action
for wrongful death and survival against all of the defendants.
Dr. Hallur and the Mercy entities filed preliminary objections to the
amended complaint. By order dated August 31, 2012, the Honorable Allan
L. Tereshko sustained the preliminary objections, ruling that
(a) all claims for punitive damages in Paragraphs
26, 33, 46 and 53 are stricken with prejudice;
(b) all references to unidentified agents, servants,
employees, attending physicians, nursing staff,
other support staff, administrators, boards and
committees in Count III and Count IV are
stricken with prejudice;
(c) Paragraphs 24(a)-(c), (e), (h)-(i) and (l)-(p)
and Count IV are stricken with prejudice; and
(d) Paragraphs 24(e) and (q) are stricken with
prejudice.
Trial Court Order, 8/31/2012, at 1.
On January 24, 2014, the trial court granted Dr. Williams’ unopposed
motion for summary judgment, dismissing all claims against him. Trial
Court Order, 1/24/2014, at 1. On the date set for trial, May 23, 2014, Dr.
Hallur and the Mercy entities moved in limine to preclude all evidence and
testimony against Dr. Hallur because his work was not criticized in Hurst’s
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expert report. N.T., 5/23/2014, at 3. Based upon the “law of the case as
established by the order of Judge Tereshko,” counsel for Hurst took no
position on the motion in limine. Id. at 3-4. The Honorable Shelley Robins
New granted the motion in limine. Id. at 4.
Counsel for Dr. Hallur and the Mercy entities then moved for a “nolle
pros,” which counsel for Hurst did not oppose. Id. at 4-5. Instead, counsel
for Hurst indicated that he was preserving his right to appeal Judge
Tereshko’s August 31, 2012 order. Id. at 5. Judge Robins New then
indicated that she would grant “the nolle pros requested by the defense, and
all issues in regards to Judge Tereshko’s orders on preliminary objections are
preserved for purposes of appeal.” Id. On May 27, 2014, Judge Robins
New entered an order that stated, “Non Pros entered.” Trial Court Order,
5/27/2014, at 1. On June 3, 2014, counsel for Hurst filed a praecipe for
entry of judgment on Judge Robins New’s May 27, 2014 order.
Hurst appeals subsections (b) and (c) of Judge Tereshko’s August 31,
2012 order granting preliminary objections, as these two subsections
effectively dismissed his claims against the Mercy entities for vicarious
liability and corporate negligence. With respect to his claim for vicarious
liability, Hurst contends that striking all of the allegations relating to
unidentified agents in subsection (b) of his order was error, as Pennsylvania
appellate courts have held that employees may be unnamed or referred to
as a group in a complaint alleging vicarious liability. With respect to his
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claim for corporate negligence, Hurst contends that the trial court erred in
striking/dismissing this claim in subsection (c) of its order because the
amended complaint contained sufficient allegations to sustain this claim as a
matter of law.
Before we address the issues raised on appeal by Hurst, we must first
determine whether this appeal is properly before the Court. In their
appellate brief, Dr. Hallur and the Mercy entities contend that Hurst failed to
preserve any issues for appeal because he did not file a petition to open the
judgment of non pros pursuant to Rule 3051 of the Pennsylvania Rules of
Civil Procedure. See Pa.R.C.P. 3051. In addition, this Court issued two per
curium orders directing Hurst to show cause why this appeal should not be
quashed, either because of the failure to petition the trial court to open the
judgment of non pros pursuant to Rule 3051, Per Curium Order, 7/30/2014,
at 1, or because a nolle pros is akin to the entry of a compulsory nonsuit,
which is generally appealable only after the denial of a motion to remove
nonsuit pursuant to Pa.R.C.P. 227.1. See Billig v. Skvaria, 853 A.2d 1042,
1048 (Pa. Super. 2004).
These circumstances present something of a procedural morass, as
Judge Robins New’s order dated May 27, 2014 may not properly be
categorized as either a nolle pros or a non pros. It was not a nolle pros
because our rules of civil procedure do not recognize “nolle pros” in the civil
context. Under Pennsylvania law, the appellation “nolle pros” is now used
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only in the criminal context, referring to a voluntary withdrawal by a
prosecuting attorney of proceedings on a particular bill or information. See,
e.g., Commonwealth v. Totaro, 106 A.3d 120, 121-22 (Pa. Super. 2014).
Likewise, Judge Robins New’s order was not a non pros since it was not a
judgment entered terminating Hurst’s action due to any failure to properly
and/or promptly prosecute the case. See Dombrowski v. Cherkassky,
691 A.2d 976, 977 (Pa. Super. 1997). Our rules of civil procedure recognize
the entry of a judgment of non pros in four situations: (1) under Rule
1037(a) for failure to file a complaint after the issuance of a rule to do so;
(2) under Rule 1042.7 for failure to file a certificate of merit; (3) under Rule
218 on the trial court’s own motion for failure to be ready at the start of
trial; and (4) under Rule 4019 as a discovery sanction.1 Judge Robins New’s
order was not entered in accordance with any of these rules.
For purposes of determining the issue of appealability, we look for
guidance to our Supreme Court’s decision in Lewis v. United Hospitals,
Inc., 547 A.2d 626 (Pa. 1997), a case with close factual and procedural
similarities to the case presently before us. In Lewis, also a medical
malpractice action, the trial court granted the doctor/defendant’s motion in
limine to preclude the plaintiffs’ medical expert from testifying at trial, and
1
For purposes of completeness, we note that non pros may also be entered
for inactivity if there is a lack of due diligence in prosecuting the case on the
part of the plaintiff, no compelling reason for the delay, and actual prejudice
to the defendant. See, e.g., Jacobs v. Halloran, 710 A.2d 1098, 1103
(Pa. 1998); Pa.R.J.A. 1901.
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denied the plaintiffs’ motion to introduce a revised expert report. Id. at
628. The trial court then granted the doctor/defendant’s motion for a
compulsory nonsuit, from which the plaintiffs appealed without filing a post-
trial motion pursuant to Rule 227.1 to remove the nonsuit. Id. at 629. Our
Supreme Court held that the trial court erred in granting a compulsory
nonsuit, since pursuant to Rule 230.1, a nonsuit should not be granted prior
to the close of a plaintiff’s presentation of evidence at trial. Id. at 630.
Following prior precedent from this Court, however, including Gallagher v.
Harleysville Mutual Insurance Company, 618 A.2d 790 (Pa. Super.
1992), appeal denied, 629 A.2d 1381 (Pa. 1993), the Lewis Court ruled that
the trial court should have treated the doctor/defendant’s motion for
compulsory nonsuit as a pre-trial motion for either summary judgment or
judgment on the pleadings. Id. Treating the trial court’s order as one
granting a motion for summary judgment, the Supreme Court concluded
that the plaintiffs had no obligation to move to remove the nonsuit pursuant
to Rule 227.1, and the trial court’s order was therefore immediately
appealable. Id. at 631-32; see also Valles v. Albert Einstein Medical
Center, 758 A.2d 1238, 1243 (Pa. Super. 2000), aff’d, 805 A.2d 1232 (Pa.
2002); Wujcik v. Yorktowne Dental Associates, Inc., 701 A.2d 581,
583-84 (Pa. Super. 1997).
In accordance with Lewis, we will treat Judge Robins New’s May 27,
2014 order as one granting summary judgment against Hurst, and was thus
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final and appealable. We will now proceed to consider the substantive issues
raised on appeal. For his first issue on appeal, Hurst contends that the trial
court (Judge Tereshko) erred in striking all allegations of vicarious liability
against the Mercy entities for the acts of “unidentified agents, servants,
employees, attending physicians, nursing staff, other support staff,
administrators, boards and committees.” Trial Court Order, 8/31/2012, at
1(b). In Count III of his amended complaint, Hurst asserted a claim for
vicarious liability against the Mercy entities for the negligence of “nursing
staff, attending physicians and other attending personnel” acting within the
scope of their employment “as agents, servants, or employees” of the Mercy
entities. Amended Complaint, ¶¶ 28-31. In their preliminary objections, the
Mercy entities argued that these allegations of agency did not satisfy the
pleading requirements for an agency relationship, citing to Alumni Ass’n,
Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d
1095, 1100 (Pa. Super. 1987).
Our standard of review from an order granting a preliminary objection
in the nature of a demurrer2 is as follows:
2
In their appellate brief, the Mercy entities note that Judge Tereshko did
not dismiss the claims against them but rather struck allegations of Hurst’s
amended complaint. Appellees’ Brief at 11. While technically true, we note
that in their preliminary objections, the Mercy entities specifically referenced
Rule 1027(a)(4) and indicated their motion to strike all allegations of agency
was “in the nature of a demurrer based upon the legal insufficiency of a
pleading.” Preliminary Objections, 7/10/2012, ¶ 25. Moreover, subsection
(b) of Judge Tereshko’s August 31, 2012 order effectively dismissed as
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[O]ur standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
Durst v. Milroy Gen. Contracting, Inc., 2012 179, 52 A.3d 357, 359-60
(Pa. Super 2012) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.
Super. 2011)).
In Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014), this Court
recently reviewed the basic requirements for a cause of action for vicarious
liability:
Our Supreme Court has recently opined on the
differences between direct and vicarious liability.
To prove negligence, a plaintiff may
proceed against a defendant on theories
legally insufficient Hurst’s cause of action for vicarious liability for the acts of
unnamed agents, servants, and employees of the Mercy entities. A
demurrer is an assertion that a complaint does not set forth a cause of
action upon which relief may be granted. Desanctis v. Prichard, 803 A.2d
230, 232 (Pa. Super. 2002).
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of direct and vicarious liability, asserted
either concomitantly or alternatively.
Liability for negligent injury is direct
when the plaintiff seeks to hold the
defendant responsible for harm the
defendant caused by the breach of duty
owing directly to the plaintiff. By
comparison, vicarious liability is a policy-
based allocation of risk. Vicarious
liability, sometimes referred to as
imputed negligence, means in its
simplest form that, by reason of some
relation existing between A and B, the
negligence of A is to be charged against
B although B has played no part in it, has
done nothing whatever to aid or
encourage it, or indeed has done all that
[it] possibly can to prevent it. Once the
requisite relationship (i.e., employment,
agency) is demonstrated, the innocent
victim has recourse against the principal,
even if the ultimately responsible agent
is unavailable or lacks the availability to
pay.
Scampone v. Highland Park Care Center, LLC,
618 Pa. 363, 57 A.3d 582, 597 (2012) (citations and
internal quotation marks omitted); see also Hall v.
Episcopal Long Term Care, 54 A.3d 381, 402 (Pa.
Super. 2012), appeal denied, 620 Pa. 715, 69 A.3d
243 (2013).
Accordingly, in order to hold an employer vicariously
liable for the negligent acts of its employee, these
acts must be “committed during the course of and
within the scope of the employment.” Sutherland
v. Monongahela Valley Hosp., 856 A.2d 55, 62
(Pa. Super. 2004), citing R.A. v. First Church of
Christ, 748 A.2d 692, 699 (Pa. Super. 2000)
(concluding that the sexual assault of a child was not
committed within the scope of a minister's
employment), appeal denied, 563 Pa. 689, 760 A.2d
855 (2000).
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The conduct of an employee is
considered within the scope of
employment for purposes of vicarious
liability if: (1) it is of a kind and nature
that the employee is employed to
perform; (2) it occurs substantially
within the authorized time and space
limits; (3) it is actuated, at least in part,
by a purpose to serve the employer; and
(4) if force is intentionally used by the
employee against another, the use of
force is not unexpected by the employer.
R.A., supra (internal quotation marks omitted).
Sokolsky, 93 A.3d at 863-64.
In Sokolsky, we concluded that it is not necessary for a plaintiff to
establish a right to recover on a claim for vicarious liability based upon the
negligence of a specific named employee.
Upon review, we conclude that the trial court erred
as a matter of law when it ruled Sokolsky could not
establish her right to recovery on her vicarious
liability claim solely because she did not base that
claim on an individual staff member's actions. The
trial court's interpretation of vicarious liability rebuffs
both the intent and the purpose underlying this
theory of recovery. Simply because employees
are unnamed within a complaint or referred to
as a unit, i.e., the staff, does not preclude one’s
claim against their employer under vicarious
liability if the employees acted negligently
during the course and within the scope of their
employment. Herein, both Manor Care and Lehigh
Valley may be subject to vicarious liability for the
negligent acts and omissions of its staff regarding
the quality of care it rendered to Sokolsky. This
vicarious liability attaches to Manor Care and Lehigh
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Valley regardless of Sokolsky's attack of an
individual member of either entity's nursing staff.
Id. at 865-66 (emphasis added) (citations omitted).
The purpose of pleadings is to put a defendant on notice of the claims
upon which it will have to defend. Yacoub v. Lehigh Valley Med.
Associates, P.C., 805 A.2d 579, 588-89 (Pa. Super. 2002) (citing
McClellan v. Health Maintenance Organization of Pennsylvania, 604
A.2d 1053 (Pa. Super. 1992), appeal denied, 616 A.2d 985 (Pa. 1992)). A
complaint must give a defendant fair notice of the plaintiff's claims and a
summary of the material facts that support those claims. Pa.R.C.P. 1019(a).
In assessing whether particular paragraphs in a complaint satisfy this
requirement, they must be read in context with all other allegations in the
complaint to determine whether the defendant has been provided adequate
notice of the claim against which it must defend. Yacoub, 805 A.2d at 589.
In the present case, as detailed hereinabove, Hurst’s amended
complaint set forth the material allegations of negligence upon which his
claims for vicarious liability against the Mercy entities were based --
including Denmark’s fall causing the dislocation of a catheter, the surgery
during which his bladder was severely lacerated, the gauze left in the wound
after the stitches had been applied -- all allegedly resulting in the
development of septic shock causing Denmark’s death. Amended Complaint,
¶¶ 6-18. While Hurst did not identify the nurses or doctors allegedly
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responsible (except for Drs. Williams and Hallur), the names of those who
performed services in connection with Denmark’s care (as described) are
either known to the Mercy entities or could have been ascertained during
discovery. Accordingly, when read in the context of the allegations of the
amended complaint, Hurst’s references to “nursing staff, attending
physicians and other attending personnel” and “agents, servants, or
employees” were not lacking in sufficient specificity and did not fail to plead
a cause of action against the Mercy entities for vicarious liability. As such,
subsection (b) of Judge Tereshko’s August 31, 2012 order was error.
For his second issue on appeal, Hurst argues that Judge Tereshko
erred in striking/dismissing his claim for corporate negligence against the
Mercy entities. Our Supreme Court recognized a cause of action for
corporate negligence by a hospital in Thompson v. Nason Hosp., 591 A.2d
703 (Pa. 1991).
Corporate negligence is a doctrine under which the
hospital is liable if it fails to uphold the proper
standard of care owed the patient, which is to ensure
the patient’s safety and well-being while at the
hospital. This theory of liability creates a
nondelegable duty which the hospital owes directly
to a patient. Therefore, an injured party does not
have to rely on and establish the negligence of a
third party.
The hospital’s duties have been classified into four
general areas: (1) a duty to use reasonable care in
the maintenance of safe and adequate facilities and
equipment; (2) a duty to select and retain only
competent physicians; (3) a duty to oversee all
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persons who practice medicine within its walls as to
patient care; and (4) a duty to formulate, adopt and
enforce adequate rules and policies to ensure quality
care for the patients….
[W]e adopt as a theory of hospital liability the
doctrine of corporate negligence or corporate liability
under which the hospital is liable if it fails to uphold
the proper standard of care owed its patient. In
addition, we fully embrace the aforementioned four
categories of the hospital's duties. It is important to
note that for a hospital to be charged with
negligence, it is necessary to show that the hospital
had actual or constructive knowledge of the defect or
procedures which created the harm. Furthermore,
the hospital's negligence must have been a
substantial factor in bringing about the harm to the
injured party.
Id. at 707-08.
In her written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure,3 Judge Robins New concluded that Hurst’s
amended complaint sufficiently alleged a cause of action for corporate
negligence:
Taking all of [Hurst’s] factual allegations as true (as
a trial court must when ruling on a preliminary
objection), [Denmark’s] urinary catheter was
dislodged and [Mercy’s] agent physicians performed
surgery to reinsert it. In that surgery, [Mercy’s]
agents “severely lacerated” [Denmark’s] bladder and
subsequently left a piece of gauze inside [Denmark]
upon the completion of the procedure. These acts
then allegedly resulted in [Denmark’s] death from
septic shock.
3
Judge Robins New indicated that she offered Judge Tereshko the
opportunity to author the Rule 1925(a) opinion, but that he declined. Trial
Court Opinion, 10/7/2014, at 3 n.1.
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The facts as averred by [Hurst] successfully allege
violations of the duties owed by [Mercy] to [Hurst]
under corporate negligence liability. The fact that
the catheter became dislodged may be construed as
a violation of the duty to maintain adequate
equipment. A physician stitching a piece of gauze
inside a patient may be sufficient for a factfinder to
decide that physician was of questionable skill,
violating the hospital’s duty to retain only competent
medical personnel. Thus, the facts as alleged by
[Hurst] provide an adequate ground upon which
relief can be granted under multiple theories of
corporate negligence.
Trial Court Opinion, 10/7/2014, at 6-7.
Based upon our review of Hurst’s amended complaint, we agree with
Judge Robins New’s analysis. We further note that Hurst also alleged that
the Mercy entities “had actual or constructive knowledge of the defect [in]
procedure which led to [Denmark’s] injuries” and that their negligence was a
“direct and proximate” cause of said injuries and death. Amended
Complaint, ¶¶ 43, 45. For these reasons, we conclude that Hurst’s amended
complaint sufficiently pled a cause of action for corporate negligence, and as
a result, the portion of subsection (c) of Judge Tereshko’s August 31, 2012
order striking Count IV of Hurst’s amended complaint was in error.
Hurst has not appealed subsection (a) of the August 31, 2012 order
striking all claims for punitive damages. Hurst has also not appealed the
striking of paragraphs 24(a)-(c), (e), (h)-(i), (l)-(p), and (q) of the amended
complaint in subsections (c) and (d) of Judge Tereshko’s order, or Judge
Robins New’s grant of the motion in limine regarding Dr. Hallur.
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Accordingly, our decision here is limited to a determination that Hurst
successfully pled causes of action against the Mercy entities for vicarious
liability and corporate negligence. Because Judge Tereshko’s August 31,
2012 order granting preliminary objections effectively dismissed these
causes of action at the pleadings stage, Judge Robins New’s May 27, 2014
order did not constitute an adjudication of these claims on their merits. All
claims against Drs. Williams and Hallur were properly dismissed and Hurst
has not appealed those decisions.
The order dated August 31, 2012 is hereby reversed in part as
specified herein. The case is remanded to the trial court for further
proceedings consistent with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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