Ditch v. Waynesboro Hosp.

• Decision Date: 18 January 2011
• Parties: Wanda DITCH, Administratrix of Estate of Catherine S. Verdier, Appellantv.WAYNESBORO HOSPITAL, Appellee.
• Court: Pennsylvania Supreme Court

17 A.3d 310

Wanda DITCH, Administratrix of Estate of Catherine S. Verdier, Appellant

v.WAYNESBORO HOSPITAL, Appellee.

Supreme Court of Pennsylvania.

Argued April 14, 2010.Decided Jan. 18, 2011.

OPINION TEXT STARTS HERENo. 99 MAP 2007, Appeal from the Order of the Superior Court entered January 8, 2007 at No. 2111 MDA 2007 Affirming the Order of the Franklin/Fulton County Court of Common Pleas, Civil Division, entered November 21, 2005 at No. 2004–335.Daniel Lloyd Hessel, James David Golkow, Philadelphia, Earl Merritt Lentz, for Wanda Ditch, Administratrix of Estate of Catherine S. Verdier.Christopher Thomson, West Chester, Robert A. Graci, Harrisburg, Eckert Seamans Cherin & Mellot, LLC, for Waynesboro Hospital.

Prior report: Pa.Super., 917 A.2d 317.

ORDER

PER CURIAM.

AND NOW, this 18th day of January, 2011, the Order of the Superior Court is AFFIRMED.

Justice ORIE MELVIN did not participate in the consideration or decision of this case.Justice TODD files a dissenting statement.Justice TODD, dissenting.

I respectfully dissent from the Majority's affirmance of the Superior Court's decision by per curiam order, which terminates a potentially meritorious cause of action for failure to file a certificate of merit. In doing so, the Court declines to confront and resolve a significant issue of statewide importance that has not been addressed by our Court the question of how to define the distinction between ordinary negligence and professional negligence in the health care setting. This is a question our sister states have themselves struggled to resolve.

In this matter, the complaint—premised upon the basic allegation that a patient fell from her bed—raises, in my view, a claim of garden-variety negligence, and not professional negligence, therefore, not requiring a certificate of merit. Instead, the lower tribunals, now with this Court's approval, have converted the requirement of a certificate of merit, intended as a shield against frivolous professional negligence actions, into a procedural sword to strike potentially valid claims sounding in common negligence. Thus, for the reasons set forth below, (1) I would address the gray area of how to define the distinction between ordinary negligence and professional negligence in this context; and (2) on the merits, I would find the complaint before us raises, at least in part, a cause of action based in ordinary negligence, and, I would thus conclude the Appellant was not required to file a certificate of merit. I would, therefore, reinstate her complaint.

I. Background

On March 23, 2002, Catherine Verdier, age 85,¹ suffered a stroke. She was taken to Waynesboro Hospital (“Appellee”) in Waynesboro, Pennsylvania. Verdier was admitted to Appellee's care. Around midnight, on March 23, 2002, Verdier fell from her hospital bed, struck her head on the floor, and subsequently died, after suffering a right orbital fracture and a subdural hematoma—a fractured skull and resulting bleeding of her brain.

Thereafter, Appellant Wanda Ditch, as administrator of Verdier's estate, filed an action against Appellee, claiming damages under Pennsylvania's Wrongful Death and Survival Acts. 42 Pa.C.S.A. §§ 8301, 8302. Appellee filed preliminary objections, to which Appellant filed an amended complaint. In her amended complaint, Appellant alleged that Verdier died as a result of injuries sustained in a fall from her bed. According to Appellant, Verdier's injuries were caused by the negligence of Appellee, acting through its agents, by failing to ensure that proper restraints were in place to prevent Verdier from falling from her bed while being transported to her room; leaving Verdier unattended while being transported; failing to use reasonable and necessary safety devices to ensure that Verdier would not fall from her bed while being transported; and allowing Verdier to fall from her bed while being transported. Amended Complaint at ¶ 10.

Appellee filed a Praecipe for Entry of Judgment Non Pros pursuant to Pa.R.Civ.P. 1042.6. The basis for this pleading was Appellant's failure to file a certificate of merit as required for actions alleging professional negligence. Pa.R.Civ.P. 1042.3. The trial court granted Appellee's motion. In response, Appellant filed a Petition to Open and/or Strike the Judgment of Non Pros on the basis she only asserted a claim of simple negligence, did not file a professional liability action, and, thus, was not required to file a certificate of merit. Additionally, Appellant maintained the filing of her amended complaint rendered the original complaint void, and thus, she had 60 days from the filing of the amended complaint in which to file a certificate of merit if so required.

The Court of Common Pleas of Franklin County denied Appellant's petition. The court first confronted the question of whether Appellant's action raised a claim of ordinary negligence or of professional negligence. As correctly noted by the trial court, only if Appellant raised the latter type of claim would she be required to file a certificate of merit. According to the trial court, the essential inquiry in determining which type of negligence was at issue was whether the claim pertains to conduct which occurred within the course of a professional relationship, and whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.

Based upon its understanding of the difference between ordinary negligence and professional negligence, the trial court concluded the amended complaint asserted a claim of professional liability. Important to the trial court's determination, the pleadings averred Appellee did not use the proper restraints to keep Verdier from falling out of bed and that she was left unattended by staff. In Paragraph 11 of the amended complaint, Appellant listed the names of physicians and other agents whom she believed to have acted negligently in connection with this incident. According to the trial court, the amended complaint was carefully drafted to avoid specifying who did what and under what circumstances, but implicated medical evaluation, diagnosis, care and treatment, rather than ordinary slip and fall or premises liability. The trial court distinguished a patient receiving care at a hospital from a delivery person or other non-patient injured while at the hospital, noting that persons in the emergency department must have attended to Verdier and made the decision to have her moved to another room, and also determined that Verdier did not require restraint and decided to leave her unattended. According to the trial court, these actions were an integral part of providing medical treatment and, on some level, implicated medical judgments.

Moreover, the trial court found that averments in the complaint and amended complaint required an expert's evaluation in order to provide a basis for the action as a jury would need to be educated as to the risks of transporting a stroke victim from one department to another, which would include an explanation of whether such persons, in the experience of medical personnel, tend to move around on a stretcher or other transport device such that applying restraints of some kind was standard procedure as a safety precaution. Thus, the trial court concluded an expert familiar with stroke victims and hospital procedures would have been necessary because the absence of both restraints and constant supervision during transport was not a matter which was so simple and obvious as to be within the ordinary experience and knowledge of the lay juror. Finding the claim to sound in professional medical malpractice, the trial court held that the failure to file a certificate of merit was fatal to Appellant's action.²

On appeal, the Superior Court affirmed the trial court, concluding Appellant stated a claim sounding in professional negligence. Initially, the court reviewed the elements for medical malpractice and ordinary negligence, and noted that court's prior case law explaining the distinguishing characteristics regarding a medical malpractice claim was that which occurred within the course of a professional relationship and raised questions of medical judgment beyond the realm of common knowledge and experience. The Superior Court noted Appellant alleged in her amended complaint that Appellee did not properly restrain Verdier during transport and that Appellee's employee left Verdier unattended before her fall. Related thereto, the court reasoned that someone in the emergency room with medical knowledge made the decision to transport Verdier to a hospital room and to transport Verdier without restraints. According to the Superior Court, these actions were an integral part of providing medical treatment, and on some level, implicated medical judgment.

We granted allocatur, limited to the following two issues:

(1) Whether a certificate of merit must be filed within 60 days of the filing of the original complaint, notwithstanding the filing of preliminary objections and/or an amended complaint?

(2) Whether the complaint and amended complaint raise a professional negligence claim which requires the filing of a certificate of merit?

Ditch v. Waynesboro Hosp., 594 Pa. 36, 934 A.2d 1150 (Pa.2007) (order).

Before our Court, Appellant argues that, in her complaint and amended complaint, she did not allege a claim of professional liability against Appellee, but, rather, alleged only a cause of action based upon ordinary negligence. According to Appellant, the critical fact underlying her complaint and amended complaint is that Ms. Verdier fell out of her hospital bed and sustained injuries as a result of that fall. Appellant asserts a fall from a hospital bed does not involve a deviation from professional standard of care and does not raise an issue of medical judgment beyond the realm of common knowledge and experience. As she alleged only ordinary negligence, Appellant contends she was not required to file a...