Schweigart, J. v. Schmalenberger M.D., K.

J-S10016-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JACQUELINE SCHWEIGART : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

KEVIN SCHMALENBERGER, M.D. AND : No. 1226 MDA 2020

WEST SHORE ANESTHESIA :

ASSOCIATES :

Appeal from the Order Dated August 19, 2020

In the Court of Common Pleas of Cumberland County Civil Division at

No(s): 2015-06598

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 02, 2021

Jacqueline Schweigart appeals from the order granting summary

judgment in favor of Kevin Schmalenberger, M.D., and West Shore Anesthesia

Associates (“West Shore”). We affirm.

The trial court set forth the factual and procedural history, which we

incorporate herein. Trial Ct. Op., filed Aug. 19, 2020, at 1-3 (“1925(a) Op.”).

We will briefly summarize the facts. Schweigart underwent hip replacement

surgery at Holy Spirit Hospital in December 2013. Dr. Schmalenberger, an

employee of West Shore Anesthesia Associates, was her anesthesiologist. At

some point after she woke up, Schweigart looked on her phone and saw that

someone had sent her a photograph of herself. The photograph was taken

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S10016-21

before surgery and depicted her lying on her back in her hospital bed, in a

hospital gown, looking at the camera and sticking her tongue out at the

photographer. She tried calling the phone number that had sent the message.

Dep. of Schweigart, N.T., 12/27/18, at 46. No one answered the phone, the

answering message did not identify the phone’s owner, and she did not leave

a message. Id. at 46-47. She later learned Dr. Schmalenberger had sent the

picture. Dr. Schmalenberger testified at his deposition that he sent the picture,

as it was sent from his phone number, but he does not remember doing so.

Dep. of Schmalenberger, N.T., 5/13/19, at 12, 14. He further testified that he

has in the past taken photographs of patients and sent the photograph to the

patient’s phone when the patient has requested. Id. at 22. When he has done

this, he has immediately deleted the photograph from his phone after sending

it. Id.

Schweigart instituted this suit in December 2015, and in her Amended

Complaint asserted claims of negligence, invasion of privacy, intentional

infliction of emotional distress, breach of physician-patient confidentiality, and

gross negligence. In the negligence count, Schweigart alleged Dr.

Schmalenberger owed a duty of care to his patient Schweigart, breached that

duty by taking and sending the photograph, and the breach caused harm.

Schweigart did not file a certificate of merit, but rather a certificate stating,

“the expert testimony of a Licensed Professional is unnecessary for

prosecution of the claim(s) raised in the Complaint.” Certificate of Counsel,

filed Nov. 29, 2016. In the breach of physician-patient confidentiality count,

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Schweigart alleged Dr. Schmalenberger took the unauthorized photograph,

anonymously sent it to Schweigart, transmitted it “using a series of cellular

networks, wifi-networks that were both closed and open,” and still possessed

the photograph. Complaint at ¶¶ 42-44.

Schweigart claims that as a result of receiving the photo, she is afraid

to leave her home and no longer does activities that she used to enjoy. She

stated that she is afraid that Dr. Schmalenberger “would put her to sleep and

I’d never wake up again.” Dep. of Schweigart, N.T., 12/27/18, at 77. She is

medicated for depression and attends counseling. Plaintiff has a history of

head and neck injuries, spine surgery, hip replacement, shoulder surgery,

frequent headaches, Lyme disease, and was previously treated for depression

with medication. She sustained injuries in a car accident that occurred in 1986

that resulted in her receiving Social Security disability payments since around

1986.

Following discovery, Appellees filed a motion for summary judgment,

which the trial court granted. Schweigart filed a notice of appeal.

Schweigart raises the following issues:

1. Whether the trial court abused its discretion and

otherwise committed an error of law when it granted

[Appellants’] motion for summary judgment as to Count I -

Negligence on the grounds that expert testimony of a

Licensed Professional is necessary for prosecution of the

claim and determining the specific cause of [Schweigart’s]

medical conditions in this case will require the finder of fact

to thoroughly examine [Schweigart’s] medical records and

determine the cause of each and every diagnosis, something

that is neither simple nor obvious, and thus beyond the

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scope of the exception to the medical expert requirement,

when [Schweigart] posits that normal ‘expert’ testimony is

not necessary as the conduct of [Dr. Schmalenberger] is so

far outside the standard of care that her testimony would be

sufficient to establish each and every element of negligence,

and when it is clear that Ms. Schweigart has a lengthy

medical history and per her deposition, she possesses more

expertise of her condition and its toll upon her than the

ordinary range of experience, and when the actions of [Dr.

Schmalenberger] on their face are a breach of the standard

of care due any patient of a physician or their employer.

2. Whether the trial court abused its discretion and

otherwise committed an error of law when it granted

[Appellants’] motion for summary judgment as to Count IV

- Breach of Physician-Patient Confidentiality on the grounds

by stating that it did not subscribe to [Schweigart’s] belief

that someone could have intercepted the photo through

open wifi or cellular networks, when Ms. Schweigart has

clearly stated how she was damaged by the photo being

taken and then anonymously transmitted to her while she

lay alone in a recovery room.

3. Whether the trial court abused its discretion and

otherwise committed an error of law when it granted

[Appellants’] motion for summary judgment as to Count III

- Intentional Infliction of Emotional Distress on the grounds

that Schmalenberger’s actions were hardly outrageous or

extreme “beyond all bounds of decency.” When

[Schweigart] can prove, by her own testimony a causal link

between the photographs and the fear, apprehension, terror

and emotional damage she suffered immediately after and

continues to suffer as a direct result of [Dr.

Schmalenberger’s] actions and inaction.

4. Whether the trial court abused its discretion and

otherwise committed an error of law when it granted

[Appellants’] motion for summary judgment as to Count V -

Gross Negligence and punitive damages on the grounds that

[Schweigart] “cannot show that [Dr.] Schmalenberger acted

with the state of mind necessary to show gross negligence,

let alone recklessness...that there were simply too many

unknowns”, when Ms. Schweigart has established at

minimum that some of the injuries complained of are a

direct result of the actions or inactions of [Dr.

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Schmalenberger] while she was under their sole care and

concern.

5. Whether the trial court abused its discretion and

otherwise committed an error of law when it granted

[Appellants’] motion for summary judgment as to the claims

against Defendant West Shore Anesthesia Associates on the

grounds that they have dismissed all claims against [Dr.]

Schmalenberger, and therefore must also dismiss them

against Defendant West Shore Anesthesia Associates.

Schweigart’s Br. at 5-6.

We review the grant of summary judgment for errors of law and abuse

of discretion. See In re Risperdal Litig., 223 A.3d 633, 639 (Pa. 2019).

“[S]ummary judgment is appropriate only in those cases where the record

clearly demonstrates that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.” Id. “The trial

court must take all facts of record and reasonable inferences therefrom in a

light most favorable to the non-moving party” and “must resolve all doubts as

to the existence of a genuine issue of material fact against the moving party.”

Id. The court “may only grant summary judgment where the right to such

judgment is clear and free from all doubt.” Id.

Schweigart first challenges the grant of summary judgment as to her

negligence claim. She claims expert testimony was not necessary for the

prosecution of her claim. She contends that Dr. Schmalenberger’s conduct

was “so far outside the standard of care that her testimony would be sufficient

to establish each and every element of negligence.” Schweigart’s Br. at 11.

Schweigart claims Dr. Schmalenberger’s actions “on their face are a breach of

the standard of care due any patient of a physician or their employer” and she

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J-S10016-21

“can prove, by her own testimony, a causal link between the photograph being

taken and transmitted to her and the emotional damage she suffered

immediately after and continues to suffer as a direct result of [Dr.

Schmalenberger’s] actions and inaction.” Id. at 14-15.

Schweigart has claimed medical malpractice. “Medical malpractice

consists of a negligent or unskillful performance by a physician of the duties

which are devolved and incumbent upon him on account of his relations with

his patients, or of a want of proper care and skill in the performance of a

professional act.” Fessenden v. Robert Packer Hosp., 97 A.3d 1225, 1229

(Pa.Super. 2014) (quoting Quinby v. Plumsteadville Family Practice Inc.,

907 A.2d 1061, 1070 (Pa. 2006)). Such a claim implicates the elements of

negligence: duty, breach (sometimes called the negligence prong), causation,

and damages. Id.

In all but the most self-evident medical malpractice actions, the plaintiff

must provide a medical expert who will testify as to the elements of duty,

breach, and causation. Id. (citing Quinby, 907 A.2d at 1070-71). A narrow

exception to this requirement “applies in instances of obvious negligence, i.e.,

circumstances in which the medical and factual issues presented are such that

a lay juror could recognize negligence just as well as any expert.” Id. at 1230

(citing Jones v. Harrisburg Polyclinic Hosp., 437 A.2d 1134, 1137 (Pa.

1981)). “In such instances, the doctrine of res ipsa loquitur allows a fact-finder

to infer from the circumstances surrounding the injury that the harm suffered

was caused by the negligence of the defendant.” Id.

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J-S10016-21

For res ipsa loquitur to apply, three conditions must exist: (a) the event

is of a kind which ordinarily does not occur in the absence of negligence; (b)

other responsible causes, including the conduct of the plaintiff and third

persons, are sufficiently eliminated by the evidence; and (c) the indicated

negligence is within the scope of the defendant’s duty to the plaintiff. Id.

Where res ipsa applies, it permits the jury to infer negligence and causation.

Id.

Schweigart asserted that the doctrine res ipsa loquitur obviated the

need for expert testimony. The trial court disagreed. It concluded that a lay

jury would be unable to determine, in the absence of expert testimony, that

Dr. Schmalenberger’s conduct constituted negligence. 1925(a) Op. at 6. It

further noted that Schweigart’s injuries included “physical pain, distress, and

emotional damage,” but she had an extensive medical history and no expert

to testify regarding the cause of each of her diagnoses. Id. at 5-6.

We perceive no error in the grant of summary judgment. At the very

least, Schweigart will need an expert to prove causation. The injuries she

claims are not of the sort that a lay jury can determine resulted from the

alleged negligence, without expert help.1

Although not included in her statement of questions involved, in the

argument section of her brief, Schweigart next asserts the court erred in

____________________________________________

1 Toogood v. Owen J. Rogal, D.D.S., 824 A.2d 1140 (Pa. 2003) (opinion

announcing judgment of the court), which the trial court cited, is a plurality

opinion, and not binding precedent. See Quinby v. Plumsteadville Family

Practice, Inc., 907 A.2d 1061, 1070 n.14 (Pa. 2006).

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J-S10016-21

granting summary judgment as to her claim for invasion of privacy – intrusion

upon seclusion. She argues that the evidence she presented met the elements

for such a claim.

Schweigart waived this issue by not including it in her statement of

questions involved. See Pa.R.A.P. 2116(a) (“No question will be considered

unless it is stated in the statement of questions involved or is fairly suggested

thereby.”).2 Moreover, the trial court dismissed the claim because Schweigart

commenced suit after the statute of limitations had expired. See 1925(a) Op.

at 6-7; 42 Pa.C.S.A. § 5523(1) (providing an action for invasion of privacy

“must be commenced within one year”). Schweigart makes no argument on

appeal that the court erred in reaching that conclusion. Therefore, even if she

had included this issue in the statement of questions involved, we would

nonetheless affirm the trial court.

Schweigart next claims the court erred in granting summary judgment

as to her breach of physician-patient confidentiality claim. She argues that

“[b]y taking a photograph of Ms. Schweigart for a purpose unrelated to any

medical treatment or diagnosis and then at a minimum saving said photo to

his phone, in addition to transmitting the same to [Schweigart] anonymously,

is a breach of” the physician-patient relationship. Schweigart’s Br. at 17. She

claims that, although Dr. Schmalenberger does not recall taking and

____________________________________________

2 See Pa.R.A.P. 2119; Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d 675,

680 n.6 (Pa.Super. 2007) (the failure to develop an argument with citation to

and analysis of relevant authority waives the issue on appeal).

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J-S10016-21

transmitting the photograph, “the only reason could be to invade the psyche

of Ms. Schweigart to which the blackening of her character occurs as she must

now wonder why for some unknown reason, she was chosen to be the victim

of [Dr. Schmalenberger’s] unauthorized actions.” Id. at 18.

In Pennsylvania, “in some cases a civil claim for a physician’s breach of

confidentiality is cognizable.” Haddad v. Gopal, 787 A.2d 975, 980

(Pa.Super. 2001). “Doctors have an obligation to their patients to keep

communications, diagnosis, and treatment completely confidential.” Id. at

981. In Haddad, we noted that courts have recognized a physician breach of

confidentiality claim where “confidential disclosures occurred that were

unrelated to any judicial proceedings.” Id.; See Moses v. McWilliams, 549

A.2d 950, 953 n.4 (Pa.Super. 1988) (discussing cases from other jurisdictions

that recognized a breach of confidentiality claim where there were extra-

judicial disclosures of information).

The trial court granted summary judgment because no “disclosure” of

confidential information occurred in this case. 1925(a) Op. at 8-9. The trial

court explained that Dr. Schmalenberger sent the photograph only to

Schweigart, and Schweigart does not allege he sent it to others, submitted it

for publication, or posted it on social media. Id. at 9. The court further

rejected Schweigart’s claim someone could have intercepted it through open

wifi or cellular networks. Id. After a review of the briefs, the trial court record,

the relevant law, and the trial court opinion, we affirm on the basis of the trial

court opinion. Id. at 7-9.

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Schweigart next argues the court erred in granting summary judgment

as to her intentional infliction of emotional distress claim. She claims the facts

reveal that Schmalenberger’s “conduct was certainly outrageous.”

Schweigart’s Br. at 18. She notes Dr. Schmalenberger does not deny taking

the photograph, and she stated that he sent it to her without explanation and

without identifying himself. She further claims that Dr. Schmalenberger’s

“intent can be inferred by examining the backs of everyone else in the

photograph being turned away from the camera.” Id. She states that “given

her post-operative state, [Schweigart] was immediately physically impacted

in terms of the immediate fear, terror, loss of sleep and being left to wonder

all night if someone was stalking her in the hospital or coming for her in the

recovery room as she lay alone in her bed post hip replacement.” Id. at 19.

“The gravamen of the tort of intentional infliction of emotional distress

is outrageous conduct on the part of the tortfeasor.” Gray v. Huntzinger,

147 A.3d 924, 927 (Pa.Super. 2016) (quoting Kazatsky v. King David Mem’l

Park, Inc., 527 A.2d 988, 991 (Pa. 1987)). “[A] plaintiff must prove that the

defendant ‘by extreme and outrageous conduct intentionally or recklessly

cause[d] severe emotional distress.’” Id. (quoting Kazatsky, 527 A.2d at

991).

Here, the trial court granted summary judgment, finding “Dr.

Schmalenberger’s actions were hardly outrageous or extreme ‘beyond all

bounds of decency.’” 1925(a) Op. at 11. After a review of the briefs, the trial

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court record, the relevant law, and the trial court opinion, we affirm on the

basis of the trial court opinion. See id. at 9-11.

Schweigart also claims the court erred in dismissing her request for

punitive damages. She alleges that she set forth facts that her

anesthesiologist took an unsolicited and unauthorized photograph of her and

anonymously sent it to her. She further claims that she then “inquired of the

person sending her the photo of herself and [was] again met with deafening

silence.” Schweigart’s Br. at 20. She asserts that, viewed in the totality, the

“conduct . . . was an egregious deviation from the standard of care to evince

a conscious and or reckless disregard of a patent risk of harm to Ms.

Schweigart.” Id.

Although the claim in the Complaint is entitled “gross negligence,”

Schweigart is in effect requesting punitive damages, and, in her brief, claims

the court erred in dismissing her claim for punitive damages. Id. at 19.

As stated above, the trial court did not err in granting summary

judgment as to her negligence, invasion of privacy, breach of

physician/patient confidentiality, and IIED claims. Therefore, any claim for

punitive damages must also fail. See Judge Tech. Servs. v. Clancy, 813

A.2d 879, 888) (Pa.Super. 2002) (“[i]f no cause of action exists, then no

independent action exists for a claim of punitive damages since punitive

damages is only an element of damages”) (quoting Kirkbride v Lisbon

Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989)). Further, the trial court

found that there was nothing in the record to support Schweigart’s claim that

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Dr. Schmalenberger “acted with the state of mind necessary to show gross

negligence, let alone recklessness.” 1925(a) Op. at 14. We agree and conclude

the court did not err in granting summary judgment.

Schweigart also argues the trial court erred when it granted summary

judgment in favor of West Shore.3 The trial court pointed out that the claims

against West Shore were for vicarious liability, and as it had “dismissed all

claims against [Dr.] Schmalenberger, [it] must also dismiss them against . . .

West Shore.” Id. at 15.

We agree. Because summary judgment properly was entered for all

claims against Dr. Schmalenberger, and Schweigart does not assert an

independent claim against West Shore, the trial court did not err in granting

summary judgment as to the claims against West Shore.

____________________________________________

3 The sole mention of this claim after the statement of questions involved is

in the summary of the argument section. Schweigart makes no mention of it

in the argument section of this brief. Although we could find the claim waived

for failure to develop the argument, we will address it, as the trial court has

done so.

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Order affirmed.

Judge Murray joins the memorandum.

Judge Pellegrini concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/2/2021

- 13 -

Received 10/16/2020 1:35:52 P9r&dpbib06/(2dV2D2ddNf5ZtAM

Filed 10/16/2020 1:35:00 PM Superior Court Middle District

1226 MDA 2020

JACQUELINE SCHWEIGART, :THE COURT OF COMMON PLEAS

Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA

V. :No. 2015-06598 CIVIL TERM

KEVIN SCHMALENBERGER, M.D. and:

WEST SHORE ANESTHESIA ASSOC.,:

Defendants :CIVIL ACTION -LAW ;•,

OPINION

IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Smith, J., August 19, 2020

FACTS

The undisputed facts of this case are as follows. On December 18, 2013, Plaintiff

arrived at Holy Spirit Hospital for hip replacement surgery. While she was in a"holding

area" waiting to be wheeled into the operating room, she was approached by Defendant

Schmalenberger, who introduced himself as her anesthesiologist. Defendant

Schmalenberger was an employee of Defendant West Shore Anesthesia Associates

and working in his official capacity. At the time, Plaintiff was lying in ahospital bed in a

hospital gown. Defendant Schmalenberger asked her anumber of questions related to

her medical conditions and explained the procedure of undergoing general anesthesia.

According to the parties and Plaintiff's medical records, this interaction took place at

3:42 p.m. Plaintiff then signed some paperwork, after which, she was sedated at 3:46

p.m., and surgery commenced-at 3:49 p.m.'

Plaintiff's recollection oscillates after this moment in time. She remembers

waking up in arecovery room in pain. She also remembers waking up in an ambulance

being taken to Healthsouth Rehabilitation facility. At some point, Plaintiff remembers

hearing her phone make an audible alert. When she looked at her phone, she noticed

that someone had sent her aphotograph just before surgery. The photograph is of

Plaintiff, lying on her back in her hospital bed, in ahospital gown, looking at the camera

and sticking her tongue out at the photographer. The picture came from anumber

unknown to Plaintiff at that time and was sent at 3:45 p.m. on December 18, 2013. 2

According to Defendant's deposition testimony "begins surgery" actually indicates the time that the

anesthesiologist releases the patient to the surgical team, not necessarily when the first incision is made.

Defendant's Motion for Summary Judgment, Exhibit B, Deposition of Kevin P. Schmalenberger, M.D., 25,

Schweigart v. Schmalenberqer, No. 2015-06598 (May 8, 2020).

2 Id. at Exhibit A, 61.

Page 1of 15

Plaintiff indicates that she attempted to call the phone number, but no one answered,

and the voicemail message did not indicate to whom the phone number belonged.

Plaintiff indicated in her deposition that after several months, she told her friend,

Bill Davis, about the photo and he helped her do a"reverse look up" of the phone

number. It was at that time that she found out the phone number belonged to

Defendant Schmalenberger. After Plaintiff received her medical records, she learned

that Defendant Schmalenberger had been her anesthesiologist. Again, Plaintiff did not

exactly remember when she was able to connect Defendant Schmalenberger to the

photo, but it would have been before June 30, 2014. On that date, Plaintiff underwent

surgery on her right shoulder, and specifically asked her surgeon not to use Defendant

Schmalenberger as the anesthesiologist because she "had abad experience" with him.

While Plaintiff and Defendants agree on the facts as outlined above, what they

do not agree on is how the picture came to be. Plaintiff indicates that she has no

recollection of the picture being taken and that she was already under sedation when

the picture was taken. Defendant Schmalenberger does not deny that the picture came

from his cellphone, but has no recollection of taking it or why he would have. He

testified at his deposition that "the only reason Ican think of was that Iwas asked to do

that" by Plaintiff. 3 Defendant Schmalenberger further indicated that while he cannot tell

from the photograph whether Plaintiff had any form of sedation, he can say that the

photograph shows that she had not been induced with anesthesia at that point "because

her eyes are open. "4 Defendant Schmalenberger further stated that he has taken

photos at apatient's request in the past and sent it to them, so while it was not common

practice for him to do so, he had done it before. 5 Ultimately, Defendant

Schmalenberger does not deny that he took or sent the photo s

Plaintiff asserts that because of receiving the picture, she is afraid to leave her

house. She no longer does activities that she used to enjoy. She bases this fear on her

belief that she is afraid that "Dr. Schmalenberger has friends in places... Maybe he

would, maybe they would put me to sleep and I'd never wake up again."' She stated in

her deposition that she has had nightmares that Defendant has held her down to put a

3 Id. at Exhibit B, 14.

4 Id. at Exhibit B,15-16.

5 Id. at Exhibit B, 22.

6 Id. at Exhibit B, 20.

7 Id. at Exhibit A, 77.

Page 2of 15

needle in her throat to kill her. $ The fear has caused Plaintiff to install security cameras

around her residence. 9 Plaintiff has been under the care of aphysician's assistant at

Summit Behavioral Health since October 2015. She is on medications for depression

and anxiety, and she attends counseling appointments at least once amonth. 10

Plaintiff commenced this proceeding by filing awrit of summons on December 1,

2015. A complaint was filed on October 17, 2016, in which six counts were pleaded,

Count I— Negligence of Dr. Kevin Schmalenberger; Count II — Invasion of Privacy —

Intrusion Upon the Solitude and/or Seclusion and/or Private Affairs of Schweigert; Count

III -Intentional Infliction of Emotional Distress; Count IV —Breach of Physician-Patient

Confidentiality; and Count V —Gross Negligence of Dr. Kevin Schmalenberger. Holy

Spirit Hospital was dismissed as aparty by Order of Court on December 2, 2016.

Defendants Schmalenberger and WSAA filed preliminary objections to the Complaint,

which were granted in part and denied in part. As aresult, Plaintiff filed an Amended

Complaint on June 15, 2017, which pleaded five counts, Count I — Negligence of Dr.

Kevin Schmalenberger; Count II — Invasion of Privacy —Intrusion Upon the Solitude

and/or Seclusion and/or Private Affairs of Schweigert; Count III - Intentional Infliction of

Emotional Distress; Count IV —Breach of Physician-Patient Confidentiality; Count V —

Negligence —West Shore Anesthesia —Holy Spirit Hospital Vicarious Liability —

Agency/Joint Venture; Count VI —Gross Negligence of Dr. Kevin Schmalenberger.

Defendants have now filed aMotion for Summary Judgment.

DISCUSSION

Summary judgment is proper only when the pleadings, depositions, answers to

interrogatories, admissions and affidavits and other materials demonstrate that

there is no genuine issue of material fact and that the moving party is entitled to

judgment as amatter of law. The reviewing court must view the record in the light

most favorable to the nonmoving party and resolve all doubts as to the existence

of agenuine issue of material fact against the moving party. Only when the facts

are so clear that reasonable minds could not differ can atrial court properly enter

summary judgment."

aId.

9 Id. at Exhibit A, 79.

10 Id at Exhibit A, 85-88.

" Safe Auto Ins. Co. v. Oriental-Guillermo, 170 A.3d 1170, 1173 (Pa. Super. 2017), affd, 214 A.3d 1257

(Pa. 2019), quoting Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007) (citations

omitted).

Page 3of 15

Additionally, "a proper grant of summary judgment depends upon an evidentiary

record that either (1) shows the material facts are undisputed or (2) contains insufficient

evidence of facts to make out aprima facia cause of action or defense, and, therefore,

there is no issue to be submitted to the jury. 02

NEGLIGENCE

Defendants' first argument in support of summary judgment is that "Plaintiff's

negligence claims must be dismissed as Plaintiff has not provided expert testimony to

establish the necessary elements. 03 Defendants argue that, generally, in order to

proceed on aclaim for medical malpractice, expert testimony is required to establish the

standard of care, show the defendant's failure to exercise that standard of care and

connect the defendant's failure to exercise the standard of care to the plaintiff's

injuries. 14

The requirement of expert testimony in amedical malpractice action is well-

established in Pennsylvania. "[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 amatter generally requiring expert testimony. "15 An exception

to this requirement only exists "'where the matter is so simple or the lack of skill or care

so obvious as to be within the range of experience and comprehension of even non-

professional persons...'also conceptualized as the doctrine of res ipsa /oquitor." 16

Res ipsa /oquitor is not alegal doctrine or theory of recovery, but rather arule of

circumstantial evidence that allows ajury to infer negligence without direct evidence of

the elements of negligence. 17 Three conditions must be met before res ipsa /oquitor

may be invoked:

(a) either alay person is able to determine as amatter of common knowledge, or

an expert testifies, that the result which has occurred does not ordinarily occur in

the absence of negligence; (b) the agent or instrumentality causing harm was

within the exclusive control of the defendant; and (c) the evidence offered is

sufficient to remove the causation question from the realm of conjecture, but not

so substantial that it provides afull and complete explanation of the event. 18

92 McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998).

13 Defendant's Motion for Summary Judgment, ¶IV, Schweiqart, No. 2015-06598 (May 8, 2020).

" Id. at ¶28.

15 Tooqood v. Owen J. Roqal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).

18 Id. (quoting Hightower-Warren v. Silk, 698 A.2d. 52, 54 (Pa. 1997)).

17 Id.

18 Id. at 1150.

Page 4of 15

Our appellate courts have typically applied the theory of res ipsa loquitor to the

element of causation, the prime example being asponge left in apatient's body during

surgery. However, the Pennsylvania Supreme Court has declined to extend the theory

to establish the standard of care and breach of duty.

Not only does plaintiff have the burden of proving that the defendant did not

possess and employ the required skill and knowledge, or did not exercise the

care and judgment of a reasonable professional, he or she must also prove that

the injury was caused by the failure to employ that requisite skill and knowledge.

We have previously concluded that this must be accomplished with expert

medical testimony presented at trial by doctors testifying as witnesses. 19

In the Complaint, Plaintiff states that "a doctor-patient relationship was thus

created between Plaintiff and Defendant Schmalenberger and thus Schmalenberger

owed aduty of care to Plaintiff. ,20 Plaintiff further states that "Defendant

Schmalenberger specifically breached his duty by taking aphotograph of Plaintiff while

she was partially undressed in a hospital smock and presumably in amedicated

state... [and] disseminated an unauthorized photograph of Plaintiff to her while she was

along in her recovery room... "21 Plaintiff concludes that as aresult of this breach of

duty, "Plaintiff suffered physical pain, distress and emotional damage. ,22

Plaintiff has not named an expert in this matter. Rather, Plaintiff filed a

"Certificate of Counsel" that "the expert testimony of aLicensed Professional is

unnecessary for prosecution of the claim(s) raised in the Complaint. ,23 In Plaintiff's

brief, Plaintiff explains further that she "possesses more expertise of her condition and

its toll upon her than someone with the ordinary range of experience," and that "the

actions of Defendant[s] on their face are abreach of the standard of care due any

patient of aphysician or their employer. ,24 Plaintiff further asserts that "Plaintiff can

prove, by her own testimony, acausal link between the photographs being taken and

transmitted to her and the emotional damage she suffered immediately after and

continues to suffer as adirect result of Defendant's action and inaction." 25 Ultimately,

Plaintiff believes that expert testimony is not necessary, "as the conduct of Defendant(s)

19 Id. at 1149.

20 First Amended Complaint, q 20, Schweiqart, No. 2015-06598 (June 15, 2017).

21 Id.

22 Id.

23 Certificate of Counsel, Schweiqart, No. 2015-06598 (November 29, 2016).

24Plaintiff's Brief in Support of Denying Summary Judgment, 3, Schweiqart, No. 2015-06598 (June 15,

2020).

25 Id.

Page 5of 15

is so far outside the standard of care that her testimony would be sufficient to establish

every element of negligence." 26

Plaintiff, at no point, states what the standard of care in this matter is; only that

Defendant Schmalenberger owed her aduty of care because he was her

anesthesiologist. There is no expert witness to say that Defendant Schmalenberger

owed Plaintiff aspecific duty not to photograph her before surgery. Plaintiff wants the

finder of fact to assume that the standard of care that doctors should not photograph

patients goes without saying. However, without knowing what the standard of care is,

the finder of fact cannot reasonably determine if Defendant Schmalenberger breached

the standard of care, and by default, cannot determine whether the breach caused

injury.

Additionally, in this matter, Plaintiff claims her injuries were "physical pain,

distress and emotional damage."27 Plaintiff was interrogated extensively in her

deposition with regard to her medical history. Plaintiff has had head and neck injuries,

spine surgery, hip replacement, shoulder surgery, frequent headaches, Lyme disease,

and was previously treated for depression with medication. Plaintiff's medical history

goes back to acar accident that occurred in 1986, and Plaintiff's injuries are so severe,

that she has been collecting Social Security disability payments since around 1986. 28

Without an expert to differentiate between Plaintiff's preexisting conditions and any

conditions that arose as aresult of the Defendants' actions, alay jury will not be able to

determine causation. Determining the specific cause of Plaintiff's medical conditions in

this case will require the finder of fact to thoroughly examine Plaintiff's medical records

and determine the cause of each and every diagnosis, something that is neither simple

nor obvious, and thus beyond the scope of the exception to the medical expert

requirement.

Defendant's Motion for Summary Judgment as to Count I— Negligence is

GRANTED.

INVASION OF PRIVACY

Defendants next assert that Plaintiff's invasion of privacy claim should be

dismissed because the statute of limitations has lapsed. The statute of limitations for an

invasion of privacy claim is set forth in 42 Pa.C.S.A. §5523, which requires that an

action for invasion of privacy be commenced within one year.

Plaintiff did not respond to Defendants' assertions that the statute of limitations

has lapsed. As we are required to look at the facts in the light most favorable to the

26 Id. at 4.

27 First Amended Complaint, 125, Schweiqart, 2015-06598 (June 15, 2017).

28 Defendant's Motion for Summary Judgment, Exhibit A, Deposition of Jacqueline Schweigart, 18,

Schweigart, 2015-06598 (May 8, 2020).

Page 6of 15

non-moving party, we will determine that, at the very latest, Plaintiff knew that

Defendant Schmalenberger had sent her the photograph on June 30, 2014, the day that

she asked the doctor performing her shoulder surgery to insure that Defendant

Schmalenberger was not her anesthesiologist for that procedure .29 The writ of

summons was filed on December 1, 2015, just over seventeen months after the latest

possible moment of discovery of the photographer's identity.

Defendant's Motion for Summary Judgment as to Count II — Invasion of Privacy

is GRANTED.

BREACH OF PHYSICIAN-PATIENT CONFIDENTIALITY

Defendant's next argument is that Plaintiff's claim for breach of physician-patient

confidentiality should be dismissed because Plaintiff has failed to establish that

Defendant Schmalenberger "breached the [physician-patient] privilege by

releasing/providing confidential information, gained during the scope of the relationship

to athird party," and fails to show that "the information disclosed would tend to blacken

the character of the patient." 3°

Pennsylvania courts have recognized acause of action for breach of the

physician-patient privilege .31 The cause of action is based on the evidentiary privilege

applicable to civil cases set forth in 42 Pa.C.S.A. §5929, which states that

[n]o physician shall be allowed, in any civil matter, to disclose any information

which he acquired in attending the patient in a professional capacity, and which

was necessary to enable him to act in that capacity, which shall tend to blacken

the character of the patient, without consent of said patient, except in civil

matters brought by such patient, for damages on account of personal injuries.

29 Id. at Exhibit A, 67.:

Q: And the record —your medical record indicates that you told Dr. Boal that you had abad

experience with Dr. Schmalenberger, and you did not want him as an anesthesiologist?

A: Yes.

Q: So that is something you recall doing?

A: Ido.

Q: And if your medical record indicates that that took place on June 30, 2014, that means

that you would have done the reverse look up by then, and would have connected the

dots with your medical records?

A: Right.

Q: So from that point in time, you knew that the picture was sent from Dr. Schmalenberger's

phone?

A: Yes.

so Id at ¶103.

31See Moses v. McWilliams, 549 A.2d 950 (Pa. Super. 1988) and Haddad v. Gopal, 787 A.2d 975 (Pa.

Super. 2001).

Page 7of 15

The Superior Court has found that "the rationale of the statute ... was 'designed to

create aconfidential atmosphere in which apatient will feel free to disclose all possible

information which may be useful in rendering appropriate treatment."' 32 They have

further explained that "the privilege is limited to information which would offend the

rationale of the privilege ... adoctor must not expose apatient's communications if doing

so would release confidential information which was acquired in attending to and

treating the patient and which would blacken the character of the patient.s 33 So while

the Superior Court has found that "doctors have an obligation to their patients to keep

communications, diagnosis and treatment completely confidential," the standard must

be limited to the "context of the privilege statute which protects against the disclosure of

information directly related to apatient's confidential information that blackens their

reputation." 34 Thus, in order to succeed on aclaim for breach of physician-patient

confidentiality, there must be (1) adisclosure; (2) of apatient's communications; (3) that

tend to "blacken the character of the patient"; and (4) was done without consent of the

patient.

Defendants assert that no disclosure occurred, in that the photograph was sent

directly by Defendant Schmalenberger to Plaintiff. Plaintiff counters by saying that a

breach of the relationship occurred by taking the photograph and "then saving said

photo to his phone for his personal use, in addition to transmitting the same to Plaintiff

anonymously." 35 Further, in her Complaint, Plaintiff alleges that "said photograph was

transmitted using aseries of cellular networks, wifi-networks that were both closed and

open, leaving open the possibility that said photograph was intercepted, read or viewed

by an undeterminable number of individuals." 36

Disclosure is not specifically defined by the statute or case law. In fact, in the

cases that have alleged breach of physician-patient confidentiality, we could find none

that did not have an obvious statement to athird party. 37 Without definition from any

authority, the plain meaning of the term is used. According to Black's Law Dictionary

32Grimminger v. Maitra, 887 A.2d 276, 279 (Pa. Super. 2005)(quoting Miller Oral Surqerv, Inc. v. Dinello,

611 A.2d 232, 235 (Pa. Super. 1992)).

33 Id.

34 Id. at 280 (citing Hadad, 787 A.2d at 981).

35Plaintiff's Brief in Support of Denying Summary Judgment, 6, Schweiqart, No. 2015-06598 (June 14,

2020).

35 First Amended Complaint, 143, Schweigart, No. 2015-06598 (June 15, 2017).

37 In Hadad, aphysician made astatement to the patient's husband regarding her diagnosis of asexually

transmitted disease. In Grimminqer, aphysician made astatement to the patient's employer regarding

injuries sustained to his shoulder. In Moses, aphysician revealed adiagnosis of the patient to adefense

attorney in personal injury matter. These examples are not exclusive of the body of case law in this arena

(there are anumber of cases where probationers have filed suit against doctors for revealing the results

of drug testing to probation officers), but illustrative of the point that with the specific claim for breach of

physician-patient confidentiality, there must be adisclosure of information to athird party.

Page 8of 15

(11 th ed. 2019), "disclose" means "to make something known or public; to show

something after aperiod of inaccessibility or of being unknown; to reveal." Taking our

que from that definition, there was clearly no disclosure of confidential information in this

matter. Defendant Schmalenberger sent the photo to Plaintiff alone, and Plaintiff raises

no allegations otherwise. She does not allege that he sent it to his friends or

colleagues; she does not allege that he submitted it to any publication; and she does

not allege that he posted it on social media. 38

We do not subscribe to Plaintiff's belief that someone could have intercepted the

photo through open wifi or cellular networks. That would be analogous to saying that

someone could have heard aprivate conversation taking place between aphysician

and his patient in aclosed exam room by hiding in an air duct, or intercepting

confidential mail through the United States Postal Service.

Defendant's Motion for Summary Judgment as to Count IV -Breach of Physician-

Patient Confidentiality is GRANTED.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Defendant's next argument asks the Court to dismiss Plaintiff's claim for

intentional infliction of emotional distress because the conduct of Defendant

Schmalenberger was not extreme or outrageous enough to meet the burden of proof for

intentional infliction of emotional distress and because Plaintiff did not suffer aphysical

injury or impact as aresult of the alleged behavior.

First, we note that this Court's Order dated February 22, 2017 limited Plaintiff's

claim for intentional infliction of emotional distress to nominal damages because Plaintiff

does not have an expert to testify to her emotional distress related to Defendant's

conduct. For this reason, we will not delve into the argument that Plaintiff cannot prove

her injuries. Instead, we will look to whether Plaintiff can proceed on the other elements

of intentional infliction of emotional distress.

The tort of intentional infliction of emotional distress is nebulous. It is defined by

the Restatement (Second) of Torts as "one who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another is subject to

liability for such emotional distress, and if bodily harm to the other results from it, for

such bodily harm. "39 Primarily, it requires the plaintiff to prove that the conduct of the

defendant was outrageous, and "it is for the court to determine, in the first instance,

38In an unreported opinion, the Superior Court recently rejected the argument that anurse's statements

on Facebook rose to the level of abreach of patient-physician confidentiality. See Shaner v. UPMC

Susquehanna, 922 MDA 2019 (Pa. Super. March 24, 2020).

39 Kazatskv v. Kinq David Memorial Park, 1nc., 527 A.2d 988, 991 (Pa. 1987)(quoting Restatement

(Second) of Torts §46 (1965)).

Page 9of 15

whether the actor's conduct can reasonably be regarded as so extreme and outrageous

as to permit recovery. ,4o

Outrageous conduct is not well defined, as our Supreme Court explained in

Kazatskv v. Kinq David Memorial Park, Inc., 527 A.2d 988 (Pa. 1987).

It has not been enough that the defendant has acted with an intent which is

tortious or even criminal, or that he has intended to inflict emotional distress, or

even that his conduct has been characterized by malice or a degree of

aggravation which would entitle the plaintiff to punitive damages for another tort.

Liability has been found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community... Liability does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. 41

The Court went on to say that "[t]he tort of intentional infliction of emotional distress

differs from traditional intentional torts in an important respect: it provides no clear

definition of the prohibited conduct." 42 So what exactly is outrageous conduct? "'The

term outrageous is neither value free nor exacting. It does not objectively describe an

act or series of acts; rather, it represents an evaluation of behavior. ' ,43

Pennsylvania Courts have allowed recovery for intentional infliction of emotional

distress only in "very egregious cases. ,44 We have examined anumber of cases, the

most heinous of which appears to be Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970).

In that case, the plaintiffs' son was struck by defendant while driving his car. The

defendant then buried the body, which was not found until two months later. The

defendant never reported the accident or told the plaintiffs that he had killed their son.

The Pennsylvania Supreme Court held that the defendant's conduct was "intentional

and wanton" and caused the plaintiffs "extraordinary mental distress which is

attributable to that conduct.s 4

For every case that our appellate courts have determined to be outrageous

conduct, there are several in which they did not. While we have not found acase

precisely analogous to this one, we examined several where harassment was at issue.

40McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 661 (Pa. Super. 2000)(quoting Strickland v.

University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997)).

41 Kazatskv, 527 A.2d at 991 (quoting Restatement (Second) of Torts §46 cmt. D (1965)).

42 Id. at 994.

43 Id. (quoting Givelber, The Riqht to Minimum Social Decency and the Limits of Evenhandedness:

Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 52-53 (1982)).

44 Hoy v. Anqelone, 691 A.2d 476, 482 (Pa. Super. 1997).

45 Papieves, 263 A.2d at 122.

Page 10 of 15

In Hoy v. Anqelone, 691 A.2d 476, 482 (Pa. Super. 1997), the plaintiff's supervisor at

work subjected her to "various forms of abusive treatment, including sexual

propositions, vile and filthy language, off-color jokes, physical groping, and the posting

of sexually suggestive pictures," which distressed the plaintiff so much that she took

medical leave from her job in order to receive psychiatric treatment. The defendant

admitted to the conduct, and upon her return to work, the plaintiff requested atransfer to

another department. The Superior Court noted that "as ageneral rule, sexual

harassment alone does not rise to the level of outrageousness necessary to make out a

cause of action for intentional infliction of emotional distress," holding that "although the

record fully establishes and supports the existence of asexually hostile work

environment, such evidence alone does not establish the requisite outrageousness to

recover under aclaim of intentional infliction of emotional distress. ,46

Plaintiff refutes the Defendants' contention that the conduct of Defendant

Schmalenberger was not outrageous by simply saying "the facts reveal that Defendant

Schmalenberger's conduct was certainly outrageous. ,47 However, even viewing the

facts in the light most favorable to Plaintiff, and accepting all of her assertions as true,

that Defendant Schmalenberger maliciously took the photograph and sent it to Plaintiff

with evil intentions, the conduct does not rise to the level of abusive behavior in Hoy, let

alone the objectively egregious behavior in Papieves. Defendant Schmalenberger took

one photograph, and sent it, without text or comment, to Plaintiff's cell phone. There

was not a pattern of conduct; there were no threats that accompanied the photograph;

there was only one, admittedly poor, photograph of Plaintiff. Defendant

Schmalenberger's actions were hardly outrageous or extreme "beyond all bounds of

decency."

Defendant's Motion for Summary Judgment as to Count III -Intentional Infliction

of Emotional Distress is GRANTED.

GROSS NEGLIGENCE/PUNITIVE DAMAGES

Defendants next argue that Plaintiffs claim for gross negligence and punitive

damages should be dismissed, because even in the light most favorable to the Plaintiff,

the record does not support afinding of gross negligence, and even if it did, gross

negligence is insufficient to recover punitive damages under the Medical Care

Availability and Reduction of Error Act ("MCARE Act").

Pennsylvania Courts have held that gross negligence is different from ordinary

negligence. Gross negligence has been examined most commonly with regard to cases

arising out of medical malpractice involving mental health care providers because in

order to overcome immunity for mental health care providers, aplaintiff must show that

4s Hov, 691 A.2d at 483.

47 Plaintiff's Brief in Support of Denying Summary Judgment, 6, Schweiqart, No. 2015-06598 (June 14,

2020).

Page 11 of 15

the provider acted with gross negligence. 48 While this is not amental health malpractice

case, our appellate courts have applied the definition of gross negligence used in

mental health malpractice cases in other contexts .49 Accordingly, we will do the same.

Gross negligence was first defined by the Superior Court in Bloom v. Dubois

Regional Medical Center, 597 A.2d 671, 679 (Pa. Super. 1991). The Court, after

examining case law and legislative intent in both Pennsylvania and other jurisdictions,

held that gross negligence is "a form of negligence where the facts support substantially

more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of

the defendant must be flagrant, grossly deviating from the ordinary standard of care." 50

The Pennsylvania Supreme Court adopted this definition of gross negligence in Albriqht

v. Abinqton Memorial Hosp., 696 A.2d 1159, 1167 (Pa. 1997), and further held that

"when presented with facts that do not meet the definition of gross negligence, as a

matter of law, acourt may withdraw the factual determination of gross negligence from

the jury and decide the question as amatter of law. ,51

Again, we will look to when our appellate courts have found facts sufficient to

support afinding of gross negligence. In Bloom, the plaintiff was apsychiatric patient,

exhibiting severe psychosis. The plaintiff was left unattended and then attempted to

hang herself with her shoelaces. The Superior Court found that the defendants failed to

take adequate precautions to ensure the plaintiff's safety, including properly diagnosing

her despite being informed of her symptoms, and that such conduct was sufficient to

support aclaim for gross negligence. 5

In Albriqht, the decedent was involuntarily committed and diagnosed with bipolar

disorder. She was released, by order of court, to a90 day outpatient program, where

she missed several appointments and admitted, repeatedly, to counselors and her

physician that she was not taking her medication. Her behavior became erratic. On

day 85, her husband, the plaintiff, called the hospital and her counselors and asked for

them to commit her for failing to comply with the outpatient program. The defendants

responded that the plaintiff should commence involuntary commitment proceedings,

which he did not do. Her condition continued to deteriorate, and she eventually

perished in afire that may have been caused by her "careless smoking." The

Pennsylvania Supreme Court determined that no reasonable jury could have found that

the defendant acted in agrossly negligent manner because there would not have been

sufficient time for the hospital to do an involuntary commitment under the 90 day order,

48 See 50 P.S. §7114(a).

49 See Ratti v. Wheelinq Pittsburqh Steel Corp., 758 A.2d 695 (Pa. Super. 2000),

50 Bloom, 597 A.2d at 679.

51 Albright, 696 A.2d at 1167.

52 Bloom, 597 A.2d at 679.

Page 12 of 15

and their advice for plaintiff to initiate an involuntary commitment petition was not

taken. 53

As to punitive damages, the MCARE Act is clear: ashowing of gross negligence

is insufficient to support an award of punitive damages. 44 The MCARE Act instead

provides that "[p]unitive damages may be awarded for conduct that is the result of the

health care provider's willful or wanton conduct or reckless indifference to the rights of

others.s 55 The Superior Court has held that "recklessness is distinguishable from

negligence on the basis that recklessness requires conscious action or inaction which

creates asubstantial risk of harm to others, whereas negligence suggests unconscious

inadvertence." 56

Neither party addresses the definition of gross negligence. Defendants simply

state that the facts do not support afinding of gross negligence, without any further

analysis, and Plaintiff ignores the argument regarding gross negligence altogether.

Defendants then state that Plaintiff has insufficiently pleaded punitive damages in the

complaint by misidentifying the standard. We do note that while the allegations are

under the title of "gross negligence," the Plaintiff does identify the correct standard by

alleging that "the acts or omissions, viewed objectively from Schmalenberger's

standpoint at the time they occurred, involved an extreme degree of risk considering the

potential haarm to Plaintiff; Schmalenberger had actual, subjective awareness of the

risk." 57 However, the record does not support these allegations.

Plaintiff's testimony on deposition is that she does not really remember meeting

Defendant Schmalenberger. 58 She recounts that "the only thing we talked about was he

asked me if Ihad any heart conditions and stuff, like Itold you, and then told me that he

would sedate me to relax me, and which he put some type of anesthesia or something

in my IV, and then they was ready for me in surgery.s 59 After receiving the photo,

Plaintiff admits that she did not get any further text messages or calls from the

number. 60 She tried calling the number and no one answered, and she did not leave a

message. 61 She did not tell anyone about the photograph until "several months

53 Albriqht, 696 A.2d at 1167.

54 40 P.S. § 1303.505(b).

55 40 P.S. § 1303.505(a).

5s Kibler v.Blue Knob Recreation, 184 A.3d 974, 985-986 (Pa. Super. 2018)(citing Tavar v. Camelback

Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012)).

57 First Amended Complaint, 148, Schweiqart, No. 2015-06598 (June 15, 2017).

58 Defendant's Motion for Summary Judgment, Exhibit A, 36, Schweiqart, No. 2015-06598 (May 8, 2020).

5s Id. at Exhibit A, 37.

so Id. at Exhibit A, 56.

Page 13 of 15

afterwards," when she told afriend who helped her look up the owner of the telephone

number. 62 When asked if she knew or believed if the photo was sent to anyone else,

Plaintiff said "I have no clue. ,63

Plaintiff states that she is afraid that "Dr. Schmalenberger has friends in places,

and he just for whatever reason it was the he took my picture, maybe he knew me

before, Idon't know. And Ithink, you know, he has friends and stuff. Maybe he would —

maybe they would put me to sleep and I'd never wake up again." 64 We do not suggest

that Plaintiff's fear is not real, but, objectively, there is nothing in the record to support

her allegations that Defendant Schmalenberger "subjectively intended to harm Plaintiff

and he know [sic] or should have known injury would result from his gross deviation...

his conduct was reckless willful and malicious and injury resulted to Plaintiff. ,65 In her

own words, she does not know the reason for Defendant Schmalenberger taking the

photo, and there is no document, admission or witness to show otherwise. Simply

saying that "maybe" Defendant would do something to her is not enough without

showing on what that belief is based. Even ignoring Defendant Schmalenberger's

assertions that Plaintiff asked him to take the photo, without knowing the reason for

Defendant Schmalenberger's actions, Plaintiff cannot show that Defendant

Schmalenberger acted with the state of mind necessary to show gross negligence, let

alone recklessness. There are simply too many unknowns.

We would also be remiss in failing to note that if the Plaintiff is required to have

an expert witness testify as to the standard of care for ordinary negligence in amedical

malpractice case, it follows that she would need an expert witness to testify as to the

standard of care for gross negligence. The Defendants did not raise that argument in

their motion for summary judgment, so we will not rely on it as the basis of our opinion.

Defendants' Motion for Summary Judgment as to Count V -Gross Negligence

and punitive damages is GRANTED.

PLAINTIFF'S CLAIMS AGAINST

DEFENDANT WEST SHORE ANESTHESIA ASSOCIATES

Last, Defendant's assert that there is no independent cause of action against

Defendant West Shore Anesthesia Associates, so if the claims are dismissed against

Defendant Schmalenberger, they should also be dismissed against Defendant West

Shore Anesthesia Associates.

61 Id. at Exhibit A, 46.

62 Id. at Exhibit A, 63.

6s Id. at Exhibit A, 72.

64 Id at Exhibit A, 77.

65 See First Amended Complaint, ¶50, Schweigart, No. 2015-06598 (June 15, 2017).

Page 14 of 15

We note that the claim for vicarious liability in Plaintiff's original complaint was

dismissed on preliminary objections by this Court on February 22, 2017. Additionally,

there are no independent causes of action or facts alleged against Defendant West

Shore Anesthesia Associates. Therefore, as we have dismissed all claims against

Defendant Schmalenberger, we must also dismiss them against Defendant West Shore

Anesthesia Associates.

Defendant's Motion for Summary Judgment as to the claims against Defendant

West Shore Anesthesia Associates is GRANTED.

By the Court,

Matthew P. Smith, J.

Michael O. Palermo, Esq.

3300 Trindle Road

Camp Hill, PA 17011

TRUE COPY FROM RECORD

in Testimony whereof, Ihere unto set my hand

Daniel Grill, Esq. and thf aI of said Court at Carlisle, Pa.

305 N. Front Street This .day of ,"•I

f 20 26

Harrisburg, PA 17101 l

aunty

Prothonotary

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