BK Ex Rel. SK v. Chambersburg Hosp.

834 A.2d 1178
CourtSuperior Court of Pennsylvania
DecidedOctober 17, 2003
StatusPublished

This text of 834 A.2d 1178 (BK Ex Rel. SK v. Chambersburg Hosp.) 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
BK Ex Rel. SK v. Chambersburg Hosp., 834 A.2d 1178 (Pa. Ct. App. 2003).

Opinion

834 A.2d 1178 (2003)

B.K., A Minor, by S.K. and M.K., His Guardians, and S.K. and M.K. in Their Own Right, Appellants,
v.
CHAMBERSBURG HOSPITAL and Michael Grossberg, M.D., Appellees.

Superior Court of Pennsylvania.

Argued January 14, 2003.
Filed October 17, 2003.

*1179 Neil J. Rovner, Harrisburg, for appellant.

Thomas Chairs, Camp Hill, for Grossberg, appellee.

BEFORE: STEVENS, GRACI, and OLSZEWSKI, JJ.

*1180 OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the Court of Common Pleas of Franklin County's pre-trial order granting summary judgment to one defendant, Appellee Chambersburg Hospital. On appeal, Appellants, B.K. and his parents S.K. and M.K., contend that the trial court erroneously ruled that their intended medical expert lacked the expertise necessary to testify at trial. We reverse and remand.

¶ 2 In the early morning hours of December 31, 1992, an ambulance brought thirteen month old B.K. to the Chambersburg Hospital Emergency Room to treat him for an apparent fever-related seizure. Emergency Room personnel immediately paged Michael Grossberg, M.D. for a consult in pediatric treatment, but nearly an hour of unsuccessful treatment passed before Dr. Grossberg showed. Thirty minutes later, Dr. Grossberg administered Phenobarbital intravenously, which finally brought B.K.'s seizure under control ninety minutes after B.K.'s emergency room arrival.

¶ 3 Appellants filed a Civil Complaint against both Chambersburg Hospital and Dr. Grossberg, claiming that the staff's ineffective treatment and Dr. Grossberg's belated response were malpractice. The Complaint further alleged that the malpractice caused B.K. to suffer onset of a behavioral disorder known as Pervasive Developmental Disorder (PDD), characterized by, inter alia, regressed speech development.

¶ 4 Shortly before trial, Chambersburg Hospital filed a Motion for Summary Judgment based on its position that Appellants' proposed expert, board certified pediatrician Richard Bonforte, M.D., was not qualified as an expert witness in emergency room medicine. After an in camera hearing, the trial court precluded Dr. Bonforte from testifying because "he does not specialize in emergency medicine, is not board certified in emergency medicine, and does not work full time directly on the emergency room floor caring for patients." Trial Court Opinion dated 6/11/99 at 2. The ruling left Appellants without an expert in its case against Chambersburg Hospital, and the trial court accordingly entered a pretrial Order granting Chambersburg Hospital's Motion for Summary Judgment. The case against remaining defendant Dr. Grossberg proceeded to trial, where Dr. Grossberg won judgment in his favor. This appeal challenging the order granting Summary Judgment in favor of Chambersburg Hospital followed.

¶ 5 Appellants raise two related issues:

I. WHETHER IT IS AN ABUSE OF DISCRETION AND CONTRARY TO PENNSYLVANIA LAW TO REQUIRE THAT A PEDIATRICIAN MUST BE EITHER BOARD CERTIFIED IN EMERGENCY ROOM MEDICINE, OR HAVE WORKED FULL TIME IN AN EMERGENCY ROOM TO TESTIFY AS TO THE STANDARD OF CARE FOR TREATING A PEDIATRIC SEIZURE?

II. DID THE COURT ABUSE ITS DISCRETION BY HOLDING THAT DR. BONFORTE, A BOARD CERTIFIED PEDIATRICIAN, ACTIVE IN EMERGENCY ROOMS WAS MERELY A "HOSPITAL ADMINISTRATOR" AND NOT QUALIFIED TO TESTIFY AS TO THE STANDARD OF CARE FOR TREATING A PEDIATRIC SEIZURE BY AN EMERGENCY ROOM PHYSICIAN?

Brief for Appellants at 4.

¶ 6 Initially, we must determine whether the appeal from the pretrial Order *1181 granting pretrial Summary Judgment in favor of Chambersburg Hospital is properly before this Court.[1] In general, an appeal may be taken as of right only from a final order, see Pa.R.A.P. 102, which is defined, in relevant part, as an order that disposes of all claims and all parties. See Pa.R.A.P. 341(a); K.H. v. J.R., 573 Pa. 481, 826 A.2d 863 (2003). "Thus, in an action involving multiple defendants...an order granting summary judgment as to one party is treated as appealable as of right only after the disposition of claims involving the remaining parties. See generally Gutteridge v. A.P. Green Servs., Inc., 2002 PA Super 198, 804 A.2d 643, 650 (Pa.Super.2002) (stating that an order settling a case as to the remaining parties rendered the prior orders granting summary judgment final under Rule 341)." K.H., 573 Pa. at 490, 826 A.2d at 869. Under this interpretation, the pretrial order granting summary judgment for Chambersburg Hospital became appealable as of right after post trial judgment was entered in favor of remaining defendant Dr. Grossberg.

¶ 7 Preservation of Appellants' challenge to the pretrial summary judgment order, moreover, did not depend upon their first including the claim in a post-trial motion with the trial court. The note to Pa.R.C.P. 227.1 is consistent with this conclusion, as it instructs that a motion for post-trial relief may not be filed to orders disposing of, inter alia, motions for summary judgment or other proceedings which do not constitute a trial. The note retained this instruction even after an amendment to Rule 227.1(b)(2) provided "Post-trial relief may not be granted unless the grounds therefore, ...(2) are specified in the motion.... Grounds not specified are deemed waived...." The Explanatory Comment to subdivision (b) explains, however, that the new waiver provision in (b)(2) responds to Yudacufski v. Commonwealth of Pa., Dept. of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), which held appealable a challenge to a pretrial order denying a motion for change of venue not included in a post-trial motion because the Rules `do not specifically include a requirement that pre-trial rulings must be raised in post-trial motions in order to be preserved.' "Subdivision (b)," the Explanatory Comment continues, "now contains such a provision."

¶ 8 Yet, the motion at issue in Yudacufski was not among the motions identified in the Rule 227.1 note as excluded from post-trial motion practice. Furthermore, jurisprudence following the amendment to subdivision (b) has reaffirmed that "it is unnecessary to include a prior order granting summary judgment in post-trial motions for purposes of issue preservation...." K.H., 573 Pa. at 495, 826 A.2d at 872 (holding that plaintiffs' inclusion in post-trial motions of a pretrial summary judgment order was done "in an abundance of caution," and was preserved even though plaintiffs appealed from the subsequent post-trial judgment entered against the remaining defendants). See also, Swift v. Milner, 371 Pa.Super. 302, 538 A.2d 28 (1988) (rejecting the position that appellants waived issue regarding pre-trial partial judgment on the pleadings (among the motions identified in Rule 227.1, note) by failing to include issue in post-trial motion).

¶ 9 Consequently, the order granting Chambersburg Hospital's motion for summary judgment became final and appealable when judgment was entered after the verdict in favor of remaining defendant Dr. Grossberg. Appellants preserved the order *1182

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Bluebook (online)
834 A.2d 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bk-ex-rel-sk-v-chambersburg-hosp-pasuperct-2003.