Baez, O. v. Correct Care Solutions

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ORLANDO BAEZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CORRECT CARE SOLUTIONS, INC., :
DENISE CORAL SMYTH, LORI ANN :
RIDINGS, NATALIE D. AUSTIN, AND :
WILLIAM J. NICHOLSON :
:
Appellees : No. 1854 WDA 2019
Appeal from the Order Entered October 23, 2019
In the Court of Common Pleas of Greene County
Civil Division at No(s): 365 AD 2018
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED DECEMBER 11, 2020
Appellant, Orlando Baez, appeals pro se from the order entered in the
Greene County Court of Common Pleas, sustaining the preliminary objections
of Appellees, Correct Care Solutions, Inc., Denise Coral Smyth, Lori Ann
Ridings, Natalie D. Austin, and William J. Nicholson, and dismissing Appellant’s
amended complaint in this medical malpractice action.1 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Generally, the Commonwealth Court shall have exclusive jurisdiction of
appeals from final orders of the courts of common pleas in civil cases involving
our state government or its officers. See 42 Pa.C.S.A. § 762(a)(1). See also
Flaxman v. Burnett, 574 A.2d 1061 (Pa.Super. 1990) (explaining
Commonwealth Court has exclusive appellate jurisdiction of appeals involving
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The relevant facts and procedural history of this appeal are as follows.
Appellant was an inmate at SCI-Greene, and he is currently housed at SCI-
Phoenix. On June 29, 2018, Appellant filed a pro se complaint against
Appellees, who were health care providers at SCI-Greene. Appellant alleged
that he filled out sick-call requests (“DC-500 forms”) on multiple occasions in
March, April, and May 2017, seeking medical treatment from Appellees.
Appellant claimed his requests were “related to [Appellant’s] [l]upus, its
multiple complications, and side effects.” (Complaint, filed 6/29/18, at ¶33).
Appellant insisted that Appellees did not respond to his requests, their conduct
breached a duty of care, and Appellant suffered injuries as a result.
Pursuant to Pa.R.C.P. 1042.3(a), Appellant attached five, separate
certificates of merit to his complaint. Each certificate stated, “Expert
testimony of an appropriate licensed professional is unnecessary for
prosecution of the claim against” Appellees. (Certificates of Merit, filed
6/29/18). Specifically, Appellant asserted “a layperson can easily understand
the facts and causation of the injury,” and an expert “would not provide
requisite information and/or clarity to the elements and/or claims raised.”
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tort claims against either Commonwealth or local agency). Here, the parties
on appeal include employees and agents of the Department of Corrections.
Nevertheless, we exercise jurisdiction over this case, where Appellees have
not objected to this Court’s jurisdiction. See Flaxman, supra (declining to
transfer cause of action involving transit authority to Commonwealth Court
where parties did not raise objection to Superior Court’s assumption of
jurisdiction as required by Pa.R.A.P. 741(a)).
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(Id.)
Appellees Correct Care Solutions, Inc., Smyth, Ridings, and Austin filed
preliminary objections, including a claim that Appellant failed to provide
proper certificates of merit. On January 25, 2019, the trial court sustained
Appellees’ preliminary objection pursuant to Rule 1042.3(a), finding “the
causes of action, as alleged by [Appellant], are not ones that are within the
purview of a layman.” (Order and Opinion, filed 1/25/19, at 5). Thus, the
court dismissed the complaint without prejudice to Appellant’s ability to file an
amended complaint with appropriate certificates of merit.2
Appellant filed a pro se amended complaint on March 27, 2019. In the
amended complaint, Appellant reiterated that Appellees “fail[ed] to respond
to [Appellant’s] … DC-500” forms, which amounted to a breach of their duty
of care. (Amended Complaint, filed 3/27/19, at ¶38). Additionally, Appellant
alleged that Appellees “stymied [Appellant’s] ability to seek out medical
attention and/or in doing so, sought to limit an issue to one medical concern
per each DC-500 form, notwithstanding a lack of authority to do so.” (Id. at
¶58). Appellant also claimed “on numerous occasions,” Appellees “would
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2 Appellee Nicholson filed separate preliminary objections, arguing that
Appellant’s complaint did “not state in a concise and summary form the
material facts upon which the cause of action is based,” and did not “inform
[Appellee] of the issues that he must meet in answering said allegations.”
(Preliminary Objections, filed 9/4/18, at ¶3). The court sustained Appellee
Nicholson’s preliminary objections, allowing Appellant “until April 1, 2019 to
file an amended complaint against [Appellee] Nicholson.” (Order and Opinion,
filed 1/25/19, at 7).
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reject and return the issued DC-500 … by placing it in [Appellant’s] door, and
walking away, and did so under the guise it was improperly filled out.” (Id.
at ¶59).
Regarding damages, Appellant argued that Appellees’ negligence
resulted in the “exacerbation of pain and suffering” for various issues related
to his lupus, including breathing difficulties and joint pain. (Id. at ¶¶71, 74,
77, 80, and 83). Again, Appellant included certificates of merit, claiming that
expert testimony was unnecessary for the prosecution of his claims.
All Appellees, including Appellee Nicholson, filed preliminary objections
arguing that Appellant continued to provide improper certificates of merit. The
court conducted oral argument on October 1, 2019. On October 23, 2019,
the court sustained Appellees’ preliminary objections and dismissed
Appellant’s cause of action.3
Appellant timely filed a pro se notice of appeal on November 15, 2019.4
On December 2, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)
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3 The court’s order expressly stated it was “a final and appealable order.”
(Order and Opinion, filed 10/23/19, at 6).
4 The notice of appeal included a certificate of service, indicating that Appellant
submitted his legal paperwork to prison authorities for mailing on November
15, 2019. Accordingly, we consider the notice of appeal to be timely filed.
See Thomas v. Elash, 781 A.2d 170 (Pa.Super. 2001) (explaining that under
“prisoner mailbox rule,” pro se prisoner’s appeal is deemed filed on date he
delivers it to prison authorities and/or places notice of appeal in institutional
mailbox; prisoner mailbox rule applies to all pro se legal filings by incarcerated
individuals, including civil litigants).
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concise statement of errors complained of on appeal. Appellant timely filed
his Rule 1925(b) statement on December 16, 2019.
Appellant raises four issues for our review:
Whether the court abused its discretion or committed an
error of law when it misapplied the requisites in the filing of
a certificate of merit pursuant to [Pa.R.C.P.] 1042.3(a)(3)[.]
Whether the court abused its discretion or committed an
error of law when it concluded that Appellant was required
to file a certificate of merit pursuant to [Pa.R.C.P.]
1042.3(a)(1 or 2), when no medical treatment was ever
provided during the times in question so as to require an
expert to opine on whether [the] course of treatment (or
lack thereof) deviated from an expected standard of
practice[.]
Whether the court abused its discretion or committed an
error of law when it concluded Appellant was required to file
a certificate of merit pursuant to [Pa.R.C.P.] 1042.3(a)(1 or
2), in a simple negligence lawsuit pursuant to 42 Pa.C.S.A.
§ 8522(b)(2), against agents of the Department of
Corrections where Appellant alleged a breach of duty in their
failing to respond to requests for medical treatment when a
duty so existed, despite what type of complaints Appellant
was seeking medical treatment for[.]
Whether the court abused its discretion or committed an
error of law when it concluded Appellant’s certificate of merit
pursuant to [Pa.R.C.P.] 1042.3(a)(1 or 2), in a simple
negligence lawsuit pursuant to 42 Pa.C.S.A. § 8522(b)(2),
against agents of the Department of Corrections was
inadequate despite a layman’s ability to understand the
causation between the breach of duty and the injury; that
being, Appellees’ failure to respond resulted in pain and
suffering.
(Appellant’s Brief at 5).
The relevant scope and standard of review in examining a challenge to
an order sustaining preliminary objections are as follows:
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Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary. Such
preliminary objections should be sustained only if, assuming
the averments of the complaint to be true, the plaintiff has
failed to assert a legally cognizable cause of action. We will
reverse a trial court’s decision to sustain preliminary
objections only if the trial court has committed an error of
law or an abuse of discretion.
All material facts set forth in the complaint as well as all
inferences reasonably [deducible] therefrom are admitted
as true for [the purpose of this review]. The question
presented by the demurrer is whether, on the facts averred,
the law says with certainty that no recovery is possible.
Where a doubt exists as to whether a demurrer should be
sustained, this doubt should be resolved in favor of
overruling it.
Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa.Super. 2008) (emphasis in
original) (internal citations omitted). “To the extent that the question
presented involves interpretation of rules of civil procedure, our standard of
review is de novo.” Gray v. PennyMac Corp., 202 A.3d 712, 715 (Pa.Super.
2019).
Appellant’s arguments are related, and we address them together.
Appellant insists that expert testimony is not required “if the issues presented
to a jury are such that a layperson can understand the nexus between the
breach of duty and the injury.” (Appellant’s Brief at 12). As such, Appellant
argues the allegations in his amended complaint do not require expert
testimony. Appellant emphasizes his claims are limited to Appellees’ “failure
and/or refusal to even respond to a request for medical treatment as obligated
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… by well-established federal law.”5 (Id. at 14). Appellant reiterates he is
not challenging Appellees’ medical judgments, and an expert’s testimony
should not be required to demonstrate that Appellees breached a duty by
failing to respond to Appellant’s DC-500 forms. Appellant concludes the trial
court erred in sustaining Appellees’ preliminary objections, and this Court
must reverse the order at issue and remand the case for further proceedings.
We disagree.
A “medical professional liability action” is defined in the Medical Care
Availability and Reduction of Error (“MCARE”) Act as “[a]ny proceeding in
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5 Appellant relies on Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976), for the proposition that “federal law” created Appellees’ duty of
care in the instant case. We observe that Estelle specifically held that the
government has an obligation to provide medical care for incarcerated
individuals, and the failure to treat a prisoner’s medical needs amounts to the
infliction of unnecessary suffering that violates the Eight Amendment of the
United States Constitution. Id. at 104-05, 97 S.Ct. at 290-91, 50 L.Ed.2d at
___. Nevertheless, Estelle also noted:
[I]n the medical context, an inadvertent failure to provide
adequate medical care cannot be said to constitute an
unnecessary and wanton infliction of pain or to be repugnant
to the conscience of mankind. Thus, a complaint that a
physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical
malpractice does not become a constitutional violation
merely because the victim is a prisoner. In order to state a
cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.
Id. at 106-07, 97 S.Ct. at 292, 50 L.Ed.2d at ___ (internal quotation marks
omitted).
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which a medical professional liability claim is asserted, including an action in
a court of law or an arbitration proceeding.” 40 P.S. § 1303.103. Moreover,
a “medical professional liability claim” is “[a]ny claim seeking the recovery of
damages or loss from a health care provider arising out of any tort or breach
of contract causing injury or death resulting from the furnishing of health care
services which were or should have been provided.” Id. (emphasis added).
Rule 1042.3 requires complaints sounding in medical professional
liability to include certificates of merit:
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a
licensed professional deviated from an acceptable
professional standard, the attorney for the plaintiff, or the
plaintiff if not represented, shall file with the complaint or
within sixty days after the filing of the complaint, a
certificate of merit signed by the attorney or party that
either
(1) an appropriate licensed professional has supplied a
written statement that there exists a reasonable probability
that the care, skill or knowledge exercised or exhibited in
the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional standards
and that such conduct was a cause in bringing about the
harm, or
(2) the claim that the defendant deviated from an
acceptable professional standard is based solely on
allegations that other licensed professionals for whom this
defendant is responsible deviated from an acceptable
professional standard, or
(3) expert testimony of an appropriate licensed
professional is unnecessary for prosecution of the claim.
* * *
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(e) If a certificate of merit is not signed by an attorney,
the party signing the certificate of merit shall, in addition to
the other requirements of this rule, attach to the certificate
of merit the written statement from an appropriate licensed
professional as required by subdivisions (a)(1) and (2). If
the written statement is not attached to the certificate of
merit, a defendant seeking to enter a judgment of non pros
shall file a written notice of intent to enter a judgment of
non pros for failure to file a written statement under Rule
1042.11.
Pa.R.C.P. 1042.3(a), (e) (internal notes omitted).
Further, “claims of medical malpractice necessarily raise questions
involving medical judgment.” Grossman v. Barke, 868 A.2d 561, 570
(Pa.Super. 2005), appeal denied, 585 Pa. 697, 889 A.2d 89 (2005).
One of the most distinguishing features of a medical
malpractice suit is, in most cases, the need for expert
testimony, which may be necessary to elucidate complex
medical issues to a jury of laypersons. In other words,
[b]ecause the negligence of a physician encompasses
matters not within the ordinary knowledge and experience
of laypersons[,] a medical malpractice plaintiff must
present expert testimony to establish the applicable
standard of care, the deviation from that standard,
causation and the extent of the injury.
The expert testimony requirement in a medical malpractice
action means that a plaintiff must present medical expert
testimony to establish that the care and treatment of the
plaintiff by the defendant fell short of the required standard
of care and that the breach proximately caused the
plaintiff’s injury. Hence, causation is also a matter generally
requiring expert testimony.
Id. at 566-67 (internal citations and quotation marks omitted) (emphasis
added).
“The only time expert testimony will not be required for a medical
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malpractice claim is where the causal connection between the defendants’
allegedly negligent act and the harm suffered by the plaintiff is generally a
matter of common knowledge, rendering the jury capable … of comprehending
the facts presented and drawing conclusions based on those facts.” McCool
V. Department of Corrections, 984 A.2d 565, 571 (Pa.Cmwlth. 2009),
appeal denied, 605 Pa. 677, 989 A.2d 10 (2010) (internal citation and
quotation marks omitted).6 “Generally, such negligence rises to the level of
gross incompetence.” Id.Instantly, the trial court acknowledged Appellant’s argument that expert
testimony should not be necessary to establish the relevant standard of care
in a case where prison health care providers ignored an inmate’s requests for
treatment. (See Order and Opinion, filed 10/23/19, at 3). Nevertheless, the
court determined other aspects of Appellant’s claims involved matters not
within the ordinary knowledge and experience of laypersons:
In this instance, [Appellant] sought treatment for issues
directly related to his [l]upus, its multiple complications and
side effects, those of which included but were not limited to
the lupus condition, two fractured ribs, serious chronic
breathing, rheumatoid arthritis, joint complications, chronic
pain, and exacerbation of that pain. See [Appellant’s]
Complaint, paragraphs 22, 71, 74, 77, 80 and 83. Clearly,
[Appellant’s] conditions and exacerbation of same are well
beyond the province of laypersons to decide.
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6 “This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa.Super. 2010), appeal
denied, 608 Pa. 648, 12 A.3d 371 (2010).
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(Id. at 5). Based upon the averments in the amended complaint, we agree
that Appellant’s claims necessarily implicate matters not within the ordinary
knowledge and experience of laypersons. See Grossman, supra.
Specifically, the amended complaint admits that Appellant was aware of
the complications and side effects of his lupus diagnosis, including breathing
problems and joint pain. (See Amended Complaint at ¶33). Appellant
maintains there was an “exacerbation of pain of suffering” for these chronic
ailments due to Appellees’ inaction. (Id. at ¶¶71, 74, 77, 80, and 83). Absent
any expert testimony, however, the jury would be left to speculate about the
link between Appellees’ conduct, causation, and the exact nature of any
“exacerbation.” See Grossman, supra; Pa.R.C.P. 1042.3(a)(1). Further, on
this record, we cannot conclude that the causal connection between Appellees’
allegedly negligent act and the harm suffered by Appellant is generally a
matter of common knowledge. See McCool, supra. Compare Smith v.
Yohe, 412 Pa. 94, 194 A.2d 167 (1963) (holding expert testimony was not
necessary to establish prima facie case of negligence where physician failed
to take x-rays to rule out possibility of fractures after elderly patient had
fallen; average juror would have sufficient knowledge of diagnostic value of
x-rays to determine whether physician’s omission evidenced lack of judgment
and care).
Moreover, Appellant alone cannot simply aver that his claims are
understandable to a layperson. Appellant’s certificates of merit were not
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signed by an attorney. As such, the certificates of merit needed to include
written statements from an appropriate licensed professional; the Rule does
not allow a pro se party to certify that expert testimony is unnecessary. See
Pa.R.C.P. 1042.3(e).
Additionally, we disagree with Appellant’s attempt to simplify the claims
in the amended complaint by characterizing them as straightforward
arguments about Appellees’ failure to respond to DC-500 forms. Although the
amended complaint included an allegation that Appellees failed to respond, it
also contained a distinct assertion regarding Appellees’ attempts to limit
medical consultations to one issue per DC-500 form. (See Amended
Complaint at ¶58). Likewise, Appellant also cited instances where Appellees
rejected his DC-500 forms as incorrectly filled out. (Id. at ¶¶ 59). Contrary
to Appellant’s argument, the amended complaint reveals Appellees provided
some response to his DC-500 forms, albeit a response that left Appellant
unsatisfied.
Based upon the foregoing, the court properly determined that Appellant
failed to supply adequate certificates of merit, pursuant to Pa.R.C.P.
1042.3(a). Thus, the court did not commit an abuse of discretion in sustaining
Appellees’ preliminary objections. See Lerner, supra. Accordingly, we
affirm.
Order affirmed.
Judge Olson concurs in the result.
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Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2020
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