The opinion
J. A25009/16
2017 PA Super 11
SUSAN M. MARTIN, AS IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF PENNSYLVANIA
DAWN M. MARTIN, AND
SUSAN M. MARTIN, INDIVIDUALLY
AND IN HER OWN RIGHT,
Appellant
v. No. 311 MDA 2016
HOLY SPIRIT HOSPITAL
Appeal from the Order Entered February 1, 2016,
in the Court of Common Pleas of Cumberland County
Civil Division at No. 13 -2097
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*
OPINION BY FORD ELLIOTT, P.J.E.: FILED JANUARY 17, 2017
Susan M. Martin appeals from the order entered February 1, 2016,
sustaining defendant/appellee's preliminary objections in the nature of a
demurrer and dismissing appellant's third amended complaint with
prejudice. After careful review, we reverse.
In a prior opinion sustaining appellee's preliminary objections to
appellant's first complaint, the trial court summarized the facts of this
matter as follows:
The pertinent facts, viewed in the light most
favorable to [appellant] as the non -moving party,
can be summarized as follows: The decedent,
* Former Justice specially assigned to the Superior Court.
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Dawn M. Martin, had a history of mental health
problems. On 17 April 2012, the decedent was
brought by ambulance to [appellee] Holy Spirit
Hospital's Emergency Department (ER) following a
suicide attempt. The decedent sought a voluntary
201[1] commitment and, as a result of a "psych
diversion" from another hospital, was transported to
[appellee]'s ER. She was placed in an exam room
upon arrival at 9:24 pm. While in the ER, the
decedent had several encounters with hospital
personnel; she voiced her suicidal intent several
times during these encounters. The decedent was
not seen by a physician or the crisis intervention
team during her time in the ER before eloping from
the hospital.
At some point during her stay in the ER, the
decedent changed into a hospital gown and slippers.
At approximately 10:45 pm, the decedent left her
exam room. She walked past the ER charge nurse's
station and the ER discharge and billing desk to get
to the ER exit door; the decedent then passed
through two ER exit doors and entered the ER lobby.
Once in the lobby, the decedent proceeded past the
ER triage nurses' station to exit the hospital through
open sliding glass doors, still wearing her hospital
gown and socks. At no point did any member of
[appellee]'s staff intervene or question the decedent
as she made her exit. The decedent subsequently
walked onto the nearby US Highway State Route 15
where she was struck and killed by passing motor
vehicles.
The Commonwealth of Pennsylvania's
Department of Health investigated the April 17th
incident and reported that the decedent was the
ninth mental health crisis patient to elope from the
ER without any crisis intervention evaluation in a
31/2 month period. [Appellee] was cited by the
Commonwealth for having violated regulations
involving patient safety and protection and was
issued a fine for [its] non -compliance.
1 50 P.S. § 7201.
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Trial court opinion, 10/18/13 at 2 -3 (footnotes omitted).
On February 1, 2016, appellee's preliminary objections to appellant's
third amended complaint were sustained, and the complaint was dismissed
with prejudice. The trial court determined2 that the Mental Health
Procedures Act ( "MHPA "), 50 P.S. §§ 7101 -7503, applied to this case, and
therefore, appellant had to prove willful misconduct or gross negligence.
The trial court then determined that at most, appellant's allegations rose to
the level of ordinary negligence.3 As such, appellee was entitled to the
benefit of the MHPA's limited immunity provision. This timely appeal
followed on February 22, 2016. On March 7, 2016, appellant was ordered to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within 21 days; appellant complied on March 24, 2016,
and the trial court filed a Rule 1925(a) opinion on April 25, 2016.
Appellant has raised the following issues for this court's review:
A. Whether the trial court committed an error of
law when it applied the heightened Standard of
the [MHPA] to the admission of decedent,
Dawn M. Martin to [appellee], Holy Spirit
Hospital on April 17, 2012?
B. Whether the trial court committed an error of
law by dismissing, with prejudice, [appellant]'s
Third Amended Complaint at the Preliminary
Objection phase of litigation by determining
2 The issue was decided by a divided three -judge panel, with one judge
dissenting. (Docket #28.)
3 There was no allegation that appellee engaged in willful misconduct.
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Appellant had not pled sufficient facts to show
gross negligence pursuant to the [MHPA]?
Appellant's brief at 5.
The standard of review we apply when considering a trial court's order
sustaining preliminary objections is well settled:
[O]ur standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error
of law. When considering the appropriateness of a
ruling on preliminary objections, the appellate court
must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint. When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,
118 (Pa.Super. 2014).
In 1976, the General Assembly enacted the MHPA to
provide procedures and treatment for the mentally ill
in this Commonwealth. The policy of the MHPA is set
forth in Section 102, which provides, in pertinent
part:
[I]t the policy of the Commonwealth of
is
Pennsylvania to seek to assure the
availability of adequate treatment to
persons who are mentally ill, and it is the
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purpose of this act to establish
procedures whereby this policy can be
effected. The provisions of this act shall
be interpreted in conformity with the
principles of due process to make
voluntary and involuntary treatment
available where the need is great and its
absence could result in serious harm to
the mentally ill person or to others.
Treatment on a voluntary basis shall be
preferred to involuntary treatment; and
in every case, the least restrictions
consistent with adequate treatment shall
be employed.
Allen v. Montgomery Hosp., 696 A.2d 1175, 1178 (Pa. 1997), quoting
50 P.S. § 7102.
The immunity provision of the MHPA provides
in pertinent part as follows:
§ 7114. Immunity from civil and
criminal liability
(a) In the absence of willful
misconduct or gross negligence,
a county administrator, a
director of a facility, a physician,
a peace officer or any other
authorized person who
participates in a decision that a
person be examined or treated
under this act, ... shall not be
civilly or criminally liable for
such decision or for any of its
consequences.
50 P.S. 7114(a). Under the MHPA, a "facility" is
§
"any mental health establishment, hospital, clinic,
institution, center, day care center, base service
unit, community mental health center, or part
thereof, that provides for the diagnosis, treatment,
care or rehabilitation of mentally ill persons, whether
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as outpatients or inpatients." 50 P.S. § 7103.
"Treatment" is defined as "diagnosis, evaluation,
therapy, or rehabilitation needed to alleviate pain
and distress and to facilitate the recovery of a person
from mental illness and shall also include care and
other services that supplement treatment and aid or
promote such recovery." 50 P.S. § 7104.
Downey v. Crozer- Chester Med. Ctr., 817 A.2d 517, 524 (Pa.Super.
2003) (en banc), appeal denied, 842 A.2d 406 (Pa. 2004).
OurSupreme Court has determined that the
immunity provided by the MHPA extends to
institutions, as well as natural persons, that provide
care to mentally ill patients. Farago v. Sacred
Heart General Hospital, 522 Pa. 410, 562 A.2d
300, 303 (1989). Additionally, our Supreme Court
has interpreted § 7114(a) to include not only
treatment decisions, but also, "care and other
services that supplement treatment' in order to
promote the recovery of the patient from mental
illness." Allen v. Montgomery Hospital, 548 Pa.
299, 696 A.2d 1175, 1179 (1997).
Downey, 817 A.2d at 525. See also Farago v. Sacred Heart Gen.
Hosp., 562 A.2d 300, 303 (Pa. 1989) ( "Unquestionably, the clear intent of
the General Assembly in enacting Section 114 of the MHPA was to provide
limited civil and criminal immunity to those individuals and institutions
charged with providing treatment to the mentally ill. ").
First, we address appellant's contention that the immunity provisions
of the MHPA do not apply because appellee was not providing mental health
"treatment" to the decedent at the time of her injury and death. Appellant
argues that the decedent had not yet been evaluated by any physicians,
crisis intervention personnel, or mental health professionals while in the ER,
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and no decisions regarding her care or treatment were made while the
decedent was at appellee's facility. (Appellant's brief at 17.) The decedent
had not been admitted to the hospital and had not been examined by a
physician or psychiatrist in the ER. (Id. at 16.) Appellant contends that
because the decedent was not receiving "inpatient treatment" while a
"resident" at the facility, the MHPA does not apply. (Id., citing 50 P.S.
§ 7103 ( "This act establishes rights and procedures for all involuntary
treatment of mentally ill persons, whether inpatient or outpatient, and for all
voluntary inpatient treatment of mentally ill persons. "Inpatient treatment"
shall include all treatment that requires full or part -time residence in a
facility. ").)
Appellant relies primarily on this court's decision in Fogg v. Paoli
Mem'/ Hosp., 686 A.2d 1355 (Pa.Super. 1996), in which this court held that
the immunity provisions of the MHPA did not apply because the defendant -
hospital had not been "treating" the plaintiff- decedent, Edward H. Fogg, for
his mental illness at the time of his injury. We find Fogg to be factually
distinguishable. In that case, Mr. Fogg's treating psychiatrist arranged for
him to be admitted to the psychiatric wing of Paoli Memorial Hospital. Id. at
1356. Mr. Fogg had a history of psychiatric problems including anxiety,
depression, and audio /visual hallucinations. Id. When Mr. Fogg and his
parents arrived at the ER, they were instructed to have a seat in the waiting
room. Id. Mr. Fogg's parents told the registrar that their son was having
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hallucinations and had a bed reserved for his admission in the psychiatric
ward. Id. Mr. Fogg did not receive any medical treatment and was not seen
by any medical personnel. Id. at 1356 -1357.
Eventually, after repeated inquiries by Mr. Fogg's parents, the registrar
directed them to the hospital admissions desk. Id. at 1357. The Foggs
proceeded down the hallway unescorted. Id. At the end of the hallway was
a large window, facing west into the setting sun. Id. Mr. Fogg became
agitated and ran down the hallway towards the setting sun, crashing through
the window and falling two stories onto a concrete driveway. Id. Mr. Fogg
died the following day. Id.
In finding that the hospital was not entitled to limited immunity under
the MHPA, this court emphasized that Mr. Fogg had not been seen by any
health -care professionals while in the ER:
In this case the trial court correctly noted that
Mr. Fogg was not yet being treated by Appellant at
the time of his injuries. Although he presented
himself for treatment at the emergency room, he
was not examined or treated by any hospital
personal [sic] while in the emergency room, and no
decisions regarding his care or treatment were made
while Mr. Fogg was at Appellant's facility. Since no
one from Appellant -hospital who was trained in the
field of mental health was treating Appellant or
making decisions regarding his treatment at the time
of the accident, Appellant cannot avail itself of the
immunity protections of the MHPA.
Id. at 1358; see also McNamara v. Schleifer Ambulance Serv., 556
A.2d 448 (Pa.Super. 1989) (ambulance service not entitled to immunity
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under Section 7114 of the MHPA where a patient was injured when he
jumped out of the rear doors of a moving ambulance which was transferring
him to a state hospital to receive court -ordered involuntary treatment).
Here, it is undisputed that the decedent was never evaluated by a
physician or a psychiatrist. She was never formally admitted to the hospital,
nor were any treatment decisions made on her behalf. Compare Farago,
562 A.2d at 304 (decision by hospital staff to allow a female patient, who
alleged she was raped by a male patient in the bathroom, to remain in the
open ward on one -hour watch rather than on closer supervision, was a
"treatment decision" protected by the immunity provisions of the MHPA in
the absence of willful misconduct or gross negligence). However, unlike the
plaintiff- decedent in Fogg, the decedent in this case was seen by trained
nursing staff and some degree of professional medical care was
administered. In her third amended complaint, appellant alleged, in relevant
part:
20. Between 9:29 p.m. and 9:43 p.m. []
Defendant's [ER] nurse, Danielle Velgos,
recorded Decedent's history of a suicide
attempt an hour earlier including details of the
police having stopped her from jumping out of
a second story window at home.
21. Defendant's medical records document
Decedent's complaint as "CRISIS; SUICIDAL."
22. Defendant's ER staff also recorded Decedent's
psychiatric history of depression, anxiety,
suicidal attempts, as well as her active suicidal
thoughts given her responding "Yes" to the
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question: "Do you currently have any
thoughts of hurting yourself or others ?"
23. At 9:45 p.m. [] Defendant's records note
"protocol initiated."
24. At 10:18 p.m. [] Decedent's street clothes
were removed and replaced with a blue paper
hospital gown and slippers.
25. At 10:20 p.m. [] Defendant's medical records
note, "pt still actively suicidal stating she
wishes they would have let her jump."
27. At 10:20 p.m. [] Defendant's medical records
note, "pt made previous statement to EDT."
28. At 10:35 p.m. [] Defendant's medical records
note, "pt given OJ, resting in bed w/o
complaints."
29. At 10:45 p.m. [] Defendant's medical records
note, "pt resting on bed" and the entry
continued to another page and further notes,
"con't: pt cooperative and appropriate with
staff, suicidal ideations not verbalized to RN
curtain open. Still awaiting physician
evaluation."
Plaintiff's Third Amended Complaint, 8/19/15 at ¶¶ 20 -25, 27 -29
(punctuation corrected).
Therefore, in contrast to Mr. Fogg, who did not interact with anyone at
the hospital other than the registrar, the decedent in this case was seen by
ER nursing staff who documented her psychiatric history and her recent
suicide attempt. The decedent was given a bed, a hospital gown and
slippers, and orange juice. While appellant obviously disagrees with the
level of treatment provided, we cannot say that the decedent was not being
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"treated" for purposes of the MHPA, which includes diagnosis and evaluation
by any authorized person. See Allen, 696 A.2d at 1179 (consistent with the
purposes of the MHPA, "treatment is given a broader meaning in the MHPA
to include medical care coincident to mental health care "). For these
reasons, we agree with the trial court that appellee was entitled to invoke
the immunity provision of Section 7114 of the MHPA, unless its actions in
treating the decedent constituted willful misconduct or gross negligence.
We now turn to appellant's second issue, in which she argues that the
third amended complaint adequately pled "gross negligence," as that term
has come to be defined under the MHPA, to permit further discovery. We
agree.
Our supreme court adopted this court's definition of
gross negligence in Albright v. Abington Memorial
Hosp., 548 Pa. 268, 696 A.2d 1159 (1997):
'It appears that the legislature intended
to require that liability be premised on
facts indicating more egregiously deviant
conduct than ordinary carelessness,
inadvertence, laxity, or indifference. We
hold that the legislature intended the
term gross negligence to mean 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.'
Id. at 278, 696 A.2d at 1164, quoting Bloom v.
DuBois Regional Medical Center, 409 Pa.Super.
83, 597 A.2d 671, 679 (1991).
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Walsh v. Borczon, 881 A.2d 1, 7 (Pa.Super. 2005).
While it is generally true that the issue of whether a
given set of facts satisfies the definition of gross
negligence is a question of fact to be determined by
a jury, a court may take the issue from a jury, and
decide the issue as a matter of law, if the conduct in
question falls short of gross negligence, the case is
entirely free from doubt, and no reasonable jury
could find gross negligence.
Albright, 696 A.2d at 1164 -1165.
With regard to gross negligence, appellant leveled the following
allegations, in pertinent part:
30. Due to understaffing, Defendant's ER nurse,
who should have been checking on Decedent,
abandoned Decedent and left her completely
unattended in order to transfer another patient
to a floor elsewhere in the hospital.
31. No replacement nurse or security guard of any
type was assigned by Defendant to watch or
care for Decedent in the interim and it was at
this time Decedent took advantage of the fact
she was not being supervised and eloped.
32. Video from Defendant Holy Spirit Hospital
reveals that at approximately 10:50 p.m. []
Decedent walked out of the [ER], passed [sic]
three nurses['] stations in a hospital gown and
slippers.
33. Decedent's exam room #4 was directly across
from, and in full view of, the ER charge nurse's
station - --a centralized nursing unit and
communications hub for nurses, physicians,
residents, unit secretaries, hospital aides and
other staff.
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34. Not a single nurse, physician, resident, unit
secretary, aide or hospital staff member
challenged, stopped, intervened, or questioned
Decedent as she walked past the charge
nurses' station while gripping her head with
both hands and proceeded to exit through a
first set of unlocked emergency room doors.
35. After Decedent passed the charge nurses'
station unchallenged, Decedent was next in
direct and open view of the ER discharge and
billing desk.
36. While still gripping her head with both of her
hands and wearing only a blue paper gown and
socks on her feet, Decedent opened the
unlocked ER exit door which lacked any badge
swipe or security alarm system that would
prevent the inappropriate departure of mental
crisis patients from the hospital's premises,
and walked out unnoticed to a small vestibule.
37. While still in full view of the ER discharge and
billing desk, Decedent opened a second
unlocked ER exit door, which lacked any badge
swipe or security alarm system that would
prevent the inappropriate departure of mental
crisis patients from the hospital's premises,
and walked out unnoticed into the ER lobby
still gripping her head with both of her hands
and wearing only a blue paper gown and socks
on her feet.
38. Not a single nurse, physician, receptionist,
secretary, resident, billing clerk[,] security
guard or hospital staff member challenged,
stopped, intervened, or questioned Decedent
as she walked out of the unlocked emergency
room doors while still gripping her head with
both of her hands and wearing only the blue
paper gown and socks on her feet.
39. While in full view of the ER lobby, ER reception
area and ER triage nurses' station, Decedent
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walked out of the emergency department
unnoticed through open sliding glass doors
while still gripping her head with both of her
hands and wearing only the blue paper gown
and socks on her feet.
40. Not a single nurse, physician, receptionist,
secretary, security guard or hospital staff
member challenged, stopped, intervened, or
questioned [decedent] as she walked out of
the ER while still gripping her head with both of
her hands and wearing only the blue paper
gown and socks on her feet.
41. Defendant's inside surveillance video cameras
reveal shocking footage of Decedent wearing a
hospital wrist ID band, a blue paper gown and
socks on her feet, gripping her pounding head
with both her hands (right hand gripping her
forehead and left hand gripping the back of her
head), walking past the three (3) separate
nurses' stations, opening two (2) sets of
unlocked doors, reaching the glass sliding front
doors of the emergency department and
walking out of the ER into the night.
42. Directly outside of Defendant Holy Spirit
Hospital's ER entrance[] were at least three (3)
exterior mounted surveillance cameras and
two (2) additional outside surveillance cameras
mounted on an adjacent hospital building at
210 Senate House.
43. At approximately 11:00 p.m., Harrisburg Police
were dispatched to a grisly scene on US 15
where Decedent was pronounced dead as a
result of a motor vehicle collision.
44. The Harrisburg Area Police Report concluded
the death was an apparent suicide and the
Cumberland County Coroner[']s Office ruled
the death a suicide.
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45. At 11:05 p.m. [] Defendant's medical records
note, "pt not in room when checked by RN,
security notified, staff and security searching
premises."
46. At 11:13 p.m. [] Defendant's medical records
note, "pt not on premises, east pennsboro
police notified of patient elopement."
47. Defendant's staff did not notice that Decedent
was gone until 11:05 p.m. and then waited
until 11:13 p.m. to notify police that their
patient was missing.
48. Based on the knowledge of her suicide attempt
and repeated, voiced intention to end her life,
Defendant had a duty to keep her safe.
49. Defendant made no attempt to move any
non -suicidal patients out of Defendant's psych
unit to make room for Decedent.
50. None of the nurses who recorded that
Decedent remained actively suicidal had any
psychiatric ward experience or mental health
crisis training.
51. Decedent was placed in a regular open ER
room because the blocked off psychiatric unit
rooms (with locked doors, protected windows
and security) were fully occupied.
52. No 1:1 observation was ordered or provided.
59. Decedent was left unsupervised, was never
seen by any mental health care professional,
did not receive a psychiatric evaluation, was
not placed in a secure location, was not seen
by any ER physician, crisis intervention was
never called, she was not treated or medicated
and was left completely alone,
unsupervised - -- -all contrary to the hospital's
own policies, and in violation of the
Professional Hospital Security Management
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Regulations, Pennsylvania State Department
Health Codes, and multiple Federal Patient
Safety Regulations.
60. Decedent was kept waiting in exam room #4
for 11/2 hours without being seen by any
physician, medical student, resident or crisis
intervention staff.
67. An investigation by the Commonwealth of
Pennsylvania's Department of Health exposed
that in the short 3 1/2 month interval between
January 1, 2012 and April 17, 2012, Decedent
was the hospital's ninth (9th) mental health
crisis patient who came to Defendant's [ER]
looking for help but was left in an unsecured
area, unsupervised and was allowed to elope
from the emergency room without any crisis
intervention evaluation.
68. Averment 67 is pled to prove Defendant had
notice that mental health patients eloped from
their facility on at least 8 occasions prior to
Decedent.
69. Despite Defendant's awareness of repeat
problems existing in their emergency
department concerning mentally ill patients
eloping out of the ER without crisis intervention
evaluations (at least 8 prior to Decedent's and
possibly more), no corrective action was taken
to protect the safety and well -being of future
mental health patients, specifically Decedent.
72. Defendant's ER staff consciously, with full
knowledge of potential consequences,
outrageously disregarded the hospital's own
Quality Assurance protocols, Emergency
Department protocols, Crisis Management
protocols and Clinical Nurse Protocols that
were in effect at the time.
73. Defendant Holy Spirit Hospital's Clinical Nurse
Practice protocols entitled "Suicide
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Precautions" which required that mental crisis
patients, such as Decedent, receive monitoring
with close 1:1 observation was breached.
Plaintiff's Third Amended Complaint, 8/19/15 at ¶¶ 30 -52, 59 -60, 67 -69, &
72 -73.
Appellant alleged that appellee grossly deviated from the accepted
standard of mental -health care in failing to place the decedent in a secure
location, failing to provide nursing supervision to a suicidal patient, failing to
implement a "fail safe system" of preventing the elopement of mental- crisis
patients from the ER with door locks, alarms, badge -swipe systems, etc.,
failing to follow its own protocols for suicidal patients, failing to call crisis
intervention to evaluate the decedent, and failing to act upon security
surveillance footage showing the decedent eloping from the ER. (Id. at pp.
12 -13, ¶ 84.) In addition, appellant alleged that appellee knew it had a
problem with mental crisis patients eloping from its facility and failed to take
any action to protect future patients such as the decedent. (Id. at pp. 13-
14, ¶¶ 85 -87.)
We find this court's decision in Bloom to be instructive. We briefly
summarized the facts of that case as follows:
On October 24, 1986, plaintiff appellant Cindy Bloom
was voluntarily admitted to the psychiatric unit of
DuBois Regional Medical Center (the "Hospital ").
The next evening, Mrs. Bloom's husband
(co- appellant) came to visit his wife. He found her
hanging by the neck from shoestrings behind a
bathroom door adjacent to her hospital room in an
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evident suicide attempt. Fortunately, Mrs. Bloom's
attempt failed.
Bloom, 597 A.2d at 673. Mr. and Mrs. Bloom brought a complaint alleging,
inter alla, failure to adequately test, diagnose, and supervise Mrs. Bloom.
Id. at 673 -674. This court found that the complaint "sufficiently pleaded
acts that could, upon further development of the facts and production of
evidence, be found by a jury to constitute gross negligence." Id. at 677
(footnote omitted).
The complaint alleged that the defendants, who held
themselves out as competent to provide psychiatric
treatment to one in the position of Mrs. Bloom,
completely failed to diagnose her mental condition
and treat her in a manner that would protect her
from serious physical harm. It further averred that
upon admission the defendants were informed of
Mrs. Bloom's mental disorder and nevertheless failed
to take adequate precautions to assure her safety.
These allegations encompass the potential of
showing conduct on the part of the defendants that
might be considered grossly negligent. Based on the
complaint, it is not certain whether the plaintiffs can
develop evidence that will demonstrate that the
defendants' failure was flagrant enough to be
characterized as a gross deviation from the
applicable standard of care.
Id. at 679.
Importantly, as in the case sub judice, this court in Bloom was
reviewing the trial court's grant of the defendants' preliminary objections,
before the plaintiffs had the opportunity to fully develop their case:
We further note that the determination of whether
an act or failure to act constitutes negligence, of any
degree, in view of all the evidence has always been
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particularly committed to determination by a jury. It
is an issue that may be removed from consideration
by a jury and decided as a matter of law only where
the case is entirely free from doubt and there is no
possibility that a reasonable jury could find
negligence. In this case, the trial court not only
prevented the issue of the proper characterization of
the defendant's conduct from going to a jury, but
foreclosed plaintiffs -appellants from moving past the
pleading stage of their case. This was error. Thus,
the dismissal of Dr. Fugate on immunity grounds at
this stage of the case must be reversed.
Id. at 679 -680 (citations and footnote omitted). Similarly, here, appellant
claims that appellee failed to take adequate precautions to assure the
decedent's safety. Appellant alleges that according to appellee's own
protocols, the decedent should have received close monitoring with
1:1 observation. (Plaintiff's Third Amended Complaint, 8/19/15 at ¶ 73.)
The decedent waited 11/2 hours in the ER without being evaluated by a
physician, psychiatrist, or crisis intervention staff. (Id. at ¶ 60.) According
to appellant, the decedent was the ninth mental- crisis patient in the past
31/2 months to elope from the ER. (Id. at ¶ 67.) Yet, appellee failed to take
any measures to protect future mental- crisis patients such as installing door
locks and alarms. (Id. at ¶ 71.) We determine that based on the facts pled
in appellant's third amended complaint, a jury could find that appellee's
actions constituted gross negligence, as they could be interpreted as
"flagrant, grossly deviating from the ordinary standard of care." Albright,
696 A.2d at 1164; see also Potts v. Step By Step, Inc., 26 A.3d 1115
(Pa.Super. 2011) (where the complaint alleged that facility's staff members
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ignored nurse's specific instructions to contact her immediately if the
decedent vomited or had problems holding down fluids, and no staff member
performed CPR and there was a delay in contacting 9 -1 -1, the trial court
erred in granting judgment on the pleadings and the complaint sufficiently
pled facts that a jury could find constituted gross negligence or
incompetence).
Appellee attempts to distinguish Bloom on the basis that the decedent
in the instant case was a voluntary commitment. (Appellee's brief at
31 -32.) However, in Bloom, the patient was also a voluntary commitment.
Bloom, 597 A.2d at 673. In addition, appellee's characterization of the
decedent as a "voluntary" presentation, while perhaps technically accurate,
is a distortion of the alleged facts. As recounted above, according to the
complaint, the decedent attempted suicide and had to be pulled from the
second -story window by police. (Plaintiff's Third Amended Complaint,
8/19/15 at ¶¶ 7 -8.) EMS was dispatched and police informed the decedent
that they intended to involuntarily commit her pursuant to Section 302.
50 P.S. § 7302. (Id. at ¶ 11.) However, the decedent indicated she wanted
to go as a voluntary Section 201 commitment and would cooperate with
EMS. (Id.) In context, this can hardly be fairly characterized as a
"voluntary" presentation. The decedent was suicidal and was told she could
either go voluntarily or be involuntarily committed.
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Similarly, appellee's contention, that as a "voluntary commitment," the
decedent "was free to leave on her own accord," is contradicted by the facts
as alleged by appellant. Decedent presented at the hospital as a mental -
crisis patient with a history of a recent suicide attempt. The medical records
documented her as "CRISIS; SUICIDAL." (Id. at ¶ 21.) The decedent's
records noted, "protocol initiated," and her street clothes were removed.
(Id. at ¶¶ 23 -24.) According to appellant's complaint, appellee's own
protocols mandate close observation of mental- crisis patients. (Id. at ¶ 73.)
Clearly, the decedent was not "free to leave," as though she arrived at the
ER complaining of a scraped elbow. This was a woman in serious mental
distress. Furthermore, if she were free to leave at any time, as suggested
by appellee, there would be no reason for hospital staff to alert the police
that a mental- crisis patient had "eloped."
Both the trial court and appellee cite the MHPA's mandate to impose
the least restrictive alternatives consistent with affording the patient
adequate treatment for his/her condition. 50 P.S. §§ 7102, 7107.
Presumably, however, the "least restrictive alternative" does not include
allowing a mental- crisis patient with a recent history of a suicide attempt to
walk out of the ER in her socks and hospital gown while clutching her head
in obvious distress. In fact, this is the gravamen of appellant's complaint.
For these reasons, we conclude that 1) appellee was a facility
providing "treatment" to the decedent, a mentally ill patient, and, therefore,
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is entitled to limited immunity under the MHPA; and 2) appellant's factual
allegations in the third amended complaint could, upon further development,
be found by a jury to constitute gross negligence. Therefore, the trial court
erred in granting appellee's preliminary objections. It is important to note
that this court is not holding that appellant's allegations conclusively
establish gross negligence as a matter of law; rather, the facts pled in
appellant's third amended complaint are sufficient to move past the
preliminary objections stage of the proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 1/17/2017
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