Bailey, C. v. Penn Med.

Superior Court of Pennsylvania

Bailey, C. v. Penn Med.

DecidedOctober 26, 2021

Docket1481 EDA 2020

StatusUnpublished

This text of Bailey, C. v. Penn Med. (Bailey, C. v. Penn Med.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey, C. v. Penn Med., (Pa. Ct. App. 2021).

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Opinion

J-S02037-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARRIE BAILEY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HOSPITAL OF THE UNIVERSITY OF : No. 1481 EDA 2020 PENNSYLVANIA :

Appeal from the Order Entered June 25, 2020 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 191103241

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

CONCURRING AND DISSENTING MEMORANDUM BY NICHOLS, J.:

FILED OCTOBER 26, 2021

I concur with the majority’s disposition of Appellant’s Section 317 claim.

I respectfully dissent from the majority’s affirmance of Appellant’s remaining

claims, as Appellant has, in my belief, adequately pled the necessary elements

needed to withstand a motion for judgment on the pleadings. I briefly explain

my reasons.

In my view, Appellant has sufficiently pled a cause of action for

negligence, including a duty. I believe the trial court, before granting

Hospital’s motion for judgment on the pleadings, should have resolved

whether Pennsylvania recognized a common law duty to protect patients’

confidential health information. See generally Charlie v. Erie Ins. Exch.,

100 A.3d 244, 250 (Pa. Super. 2014); Haddad v. Gopal, 787 A.2d 975 (Pa. J-S02037-21

Super. 2001); cf. Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C.,

102 A.3d 32 (Conn. 2014) (cited by Appellant). The trial court should have

also resolved, if necessary, whether such a duty was preempted. See

generally PPL Elec. Utils. Corp. v. City of Lancaster, 214 A.3d 639 (Pa.

2019); Dooner v. DiDonato, 971 A.2d 1187 (Pa. 2009). Similarly, in my

view, Appellant did not waive her argument addressing common law negligent

hiring and, in fact, pled the required elements. See Brezenski v. World

Truck Transfer, Inc., 755 A.2d 36, 39-40 (Pa. Super. 2000). Accordingly, I

respectfully concur in part and dissent in part.

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