Kennedy v. Butler Memorial Hospital

901 A.2d 1042, 2006 Pa. Super. 138, 2006 Pa. Super. LEXIS 1448

• Court: Superior Court of Pennsylvania
• Decided: June 12, 2006
• Status: Published

Opinions

OPINION BY KLEIN, J.:

¶ 1 Plaintiff June C. Kennedy appeals from the order granting defendant Butler Memorial Hospital’s preliminary objections and dismissing her complaint for failure to state a prima facie claim of corporate negligence against the hospital and failure to obtain the required certificate of merit to support her claim of vicarious liability. We agree with the dismissal of Kennedy’s corporate negligence claim and affirm that portion of the order. However, we conclude that Kennedy’s certificates of merit as to the hospital are sufficient to sustain her vicarious liability claim arising from the acts of unnamed hospital employees. Accordingly, we reverse that portion of the trial court’s order and remand for further proceedings.¹

¶ 2 Kennedy filed this medical malpractice action for injuries she allegedly sustained when, after a fall in her home, she was treated at Butler Memorial Hospital. Kennedy arrived at the hospital on November 26, 2001, and hospital personnel placed a peripheral intravenous catheter in her left arm. Thereafter, the catheter dislodged from her arm on at least two occasions. Two days later, she developed atrial fibrillation, so her physician ordered oral administration of Coumadin and intravenous administration of Cordarone to car-diovert her heart to regular sinus rhythm. Hospital personnel placed another intravenous catheter in Kennedy’s left arm. During administration of the Cordarone, the catheter again became dislodged. The drug allegedly infiltrated surrounding tissues, causing Kennedy to develop cellulitis and septic thrombophlebitis, which required emergency surgery.

¶ 3 Kennedy filed this action on November 7, 2003 against the hospital only. In her initial complaint, Kennedy attempted to state causes of action against the hospital for both direct corporate liability and vicarious liability for the negligent acts of its employees. Although Kennedy alleged that the hospital and its employees had failed to perform with the requisite standards of care, she did not allege that hospital supervisory personnel had notice of the conditions upon which her claims were premised. Moreover, she did not file a certificate of merit as required by Pa. R.C.P. 1042.3 until May 6, 2004, when defense counsel reminded her to do so after she had filed a praecipe for entry of default judgment. Kennedy’s certificate of merit appeared in the form prescribed by Rule 1042.3(a)(1) for direct liability cases.

¶ 4 The hospital filed preliminary objections, asserting that Kennedy’s claims sounded solely in vicarious liability, not corporate liability, and that she failed to present her certificate of merit in the form prescribed by Rule 1042.3(a)(2) for vicarious liability claims.

¶ 5 On June 17, 2004, Kennedy filed an amended complaint, adding that her injuries had been caused by the “direct corporate negligence of Butler Memorial Hospital,” but still omitting reference to knowledge of or notice to supervisory personnel of the hospital. The amended complaint still included the claim for vicarious liability. On October 28, 2004, Kennedy filed a second certificate of merit, again in the form prescribed by Rule 1042.3(a)(1) rather than Rule 1042.3(a)(2).

¶ 6 After Kennedy amended her complaint, the trial court dismissed the hospital’s preliminary objections as moot, but granted the hospital an additional 20 days to file preliminary objections to the new complaint. The hospital filed a second set of preliminary objections, seeking dismissal of the vicarious liability claim for failure to provide a proper certificate of merit within 60 days, and asserting that Kennedy’s addition of a corporate liability claim was barred by the statute of limitations.

¶ 7 The trial court sustained the preliminary objections. The court concluded that the corporate liability claim was barred by the statute of limitations and that both versions of the complaint failed to state a claim as a matter of law. The court also concluded that the certificates of merit were legally inadequate to allow the vicarious liability claim to proceed. Accordingly, the trial court dismissed Kennedy’s amended complaint in its entirety.

¶ 8 On appeal, Kennedy claims that the trial court erred in: (1) dismissing her corporate negligence claim on the basis of the statute of limitations; (2) dismissing her corporate negligence claim on the basis of insufficient allegations; and (3) dismissing her vicarious liability claim based on the inadequacy of her certificates of merit. We address each claim in turn. Dismissal of Corporate Negligence Claim

¶ 9 Kennedy argues that the trial court erred in concluding that her corporate liability claim was barred by the statute of limitations. We need not reach this claim or the trial court’s rationale for its decision, as other grounds support the trial court’s action. See O’Connor-Kohler v. United Servs. Auto. Ass’n, 883 A.2d 673, 680 (Pa.Super.2005) (en banc). Quite simply, neither of Kennedy’s complaints plead a prima facie claim of corporate negligence sufficient to withstand a demurrer.²

¶ 10 To plead corporate negligence against a hospital, the plaintiffs complaint must include allegations that, if accepted as true, would prove that:

1. the hospital deviated from the standard of care;

2. the hospital had actual or constructive notice of the defects or procedures that created the harm; and

3. the hospital’s act or omission was a substantial factor in bringing about the harm.

Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa.Super.2001); see Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581, 585 (1997). The second component of actual or constructive notice is critical, as the corporate negligence doctrine contemplates a “kind of systemic negligence” in the actions and procedures of the hospital itself rather than in the individual acts of its employees. Edwards v. Brandywine Hosp., 438 Pa.Super. 673, 652 A.2d 1382, 1386 (1985).

¶ 11 Although the Welsh Court did not consider the sufficiency of the plaintiffs allegations to withstand demurrer, its examination of the case following summary judgment is pertinent, as it required a determination of whether every act essential to liability was established by the plaintiffs evidence. See Welsh, 698 A.2d at 584 (‘We granted allocatur to address the issue of what type of evidence is necessary to establish a prima facie claim of corporate liability for negligence against a hospital pursuant to our decision in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991).”).

¶ 12 The Welsh Court found that the plaintiff had established a prima facie case, where the evidence tended to establish that the hospital knew or should have known of the pregnant patient’s need for a cesarean section. See id. at 586 (relying on statement in expert report that nurses “must have known” that progress of plaintiffs labor was too rapid and that physician failed to direct appropriate intervention). We recognize that the scenario before us is not fully analogous given the absence of an expert report at this stage. Nevertheless, it is clear that the plaintiff is required to plead the hospital’s knowledge of the negligent conduct. See id. at 585.

¶ 13 Although Kennedy’s complaint alleged the “negligence, carelessness and recklessness of agents, servants, and/or employees of Defendant, Butler Memorial Hospital,” Amended Complaint, 6/17/04, ¶ 28, it did not allege why the hospital necessarily should have known of the alleged breaches. This point is critical to a corporate negligence claim, as any less rigorous approach would effectively eliminate any distinction at the pleading stage between claims of corporate negligence and vicarious liability.

¶ 14 Because Kennedy’s averments appear to meld the two causes of action with no averment pertaining to the hospital’s knowledge, we conclude that her amended complaint fails to state a claim of corporate negligence. Therefore, the trial court properly dismissed those counts. See Homziak, supra.

Adequacy of Certifícate of Merit

¶ 15 We conclude that Kennedy filed the certificate of merit for the vicarious liability claim under the proper section of Pa.R.C.P. 1042.3 and even if she did not, under Harris v. Neuburger, 877 A.2d 1275 (Pa.Super.2005), Kennedy substantially complied with the rule. Therefore, the claim for vicarious liability against the hospital remains and that portion of the trial court’s order sustaining the preliminary objections is reversed.

1. Technical compliance

¶ 16 Because Kennedy was allowed to file an amended complaint, we must look at the certificate of merit that she timely filed after the amended complaint. At that time, Kennedy had alleged a theory of direct corporate liability. Although preliminary objections were appropriately sustained as to that count, nonetheless it was part of the complaint.

¶ 17 Therefore, in addition to claims of vicarious liability against “other licensed professionals for whom th[e] defendant is responsible,” covered by Rule 1042.3(a)(2), there also was a claim of direct liability against the hospital for its own negligence. Therefore, since Rule 1042.3(a)(2) is to be used only when the defendant has “solely” a vicarious liability claim, we conclude that it was not inappropriate for Kennedy to use the language of Rule 1042.3(a)(1).³

2. Substantive compliance

¶ 18 As noted above, this case is now controlled by our Court’s recent decision in Harris v. Neuburger, 877 A.2d 1275 (Pa.Super.2005). In Harris, the plaintiff did not file a timely certificate of merit. Rather, the plaintiff supplied an affidavit, expert reports, and the experts’ curriculum vitae and incorrectly believed that that was sufficient to comply with the requirements for filing a certificate of merit. The plaintiff argued that by supplying the actual expert reports, he had substantially complied with the rule. Id. at 1277-78. The distinguished trial judge, the Honorable Arnold L. New, agreed and granted the petition to open the judgment of non pros. Our Court affirmed, stating:

The lower court’s decision is additionally supported by both equitable principles and Pa.R.C.P. 126, which provides that “[the rules of civil procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable ... the court at every stage of any such proceeding may disregard any error or defect or procedure which does not affect the substantial rights of the parties.”

877 A.2d at 1278 (quoting Pa.R.C.P. 126).

¶ 19 Here, considering the detailed nature of Kennedy’s amended complaint, even were the wrong subsection listed, a timely certificate of merit was in fact filed, and the hospital certainly would know that the certificate referred to the actions of its employees and would not be prejudiced.⁴

¶ 20 Accordingly, we conclude that Kennedy may proceed against the hospital on a vicarious liability theory.

¶ 21 Order affirmed in part and reversed in part. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

¶ 22 JOHNSON, J., files a Concurring and Dissenting Opinion.

1 . In reviewing an order granting preliminary objections in the nature of a demurrer, we must determine whether, accepting all material averments as true, the plaintiff's complaint adequately states a claim for relief under any theory of law. Homziak v. Gen. Elec. Capital Warranty Corp., 839 A.2d 1076, 1079 (Pa.Super.2003), app. denied, 580 Pa. 706, 860 A.2d 490 (2004).

2 . Under our system of fact pleading, “the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint." Santiago v. Pa. Nat'l Mut. Cos. Ins. Co., 418 Pa.Super. 178, 613 A.2d 1235, 1238 (1992).

3 . The trial court referred to my opinion in Olshan v. Tenet Health System City Avenue, LLC, 849 A.2d 1214 (Pa.Super.), appeal denied, 581 Pa. 692, 864 A.2d 530 (2004), where in dicta I stated that no certificate of merit was necessary for the hospital in that case. In Olshan, the plaintiffs claim against the hospital was for corporate liability. I did not mean to imply that no certificate of merit would be required for actions of a hospital’s agents under a vicarious liability theory. In hindsight, it seems that I well might have been wrong that no certificate of merit is needed to show corporate liability. But since that statement would be dicta in this case, I best not go further to say whether a certificate of merit is or is not needed to support an allegation of corporate negligence. I note that this would not be the first time I was wrong, and I am sure it will not be the last.

4 . We note that in her brief, Kennedy claims that a copy of the expert report was sent to the defendant even before she instituted suit by summons. The defendant, in its brief, does not dispute this claim. However, because we cannot locate any evidence to support this claim in the certified record, we will not consider it.