The opinion
J-A20031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROGER WEIMER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
UPMC SOMERSET HOSPITAL AND : No. 151 WDA 2020
HAI TSAO, M.D. :
Appeal from the Order Entered January 3, 2020
in the Court of Common Pleas of Somerset County
Civil Division at No(s): 152 Civil 2019
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 30, 2020
Roger Weimer (“Weimer”) appeals from the Order sustaining the
Preliminary Objections filed by UPMC Somerset Hospital (the “Hospital”) and
Hai Tsao, M.D. (“Dr. Tsao”) (collectively, “Defendants”), and dismissing
Weimer’s Complaint with prejudice. We affirm.
On March 14, 2017, police officers notified Weimer of the suicide of his
ex-wife, with whom he lived. The officer responding to the scene, Officer Mark
Kasterko (“Officer Kasterko”), wrote the following, in an Application for
Involuntary Emergency Examination and Treatment pursuant to Section 302
of the Mental Health Procedures Act (“MHPA”)1 (“the Section 302
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1 See 50 P.S. § 7302.
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Application”): “Weimer had an episode and became violent and attempted to
get to a firearm. After a struggle[,] he insisted on [sic] he was going to kill
himself. During the trip to the hospital he was calm.” Section 302 Application,
3/17/17, at 3.
Upon Weimer’s arrival at the Hospital, Dr. Tsao examined Weimer. In
the Section 302 Application, Dr. Tsao described the “Results of the
Examination” as follows:
Patient is a 57-year-old male, initially referred from [Emergency
Department] on [Section] 201 status after he grabbed his gun to
shoot himself in front of police officers[,] who informed him of his
[ex-]wife’s suicide by jumping off a bridge. This incident was
preceded by re-emergent symptoms of depression after patient’s
discontinuance of anti-depressants prescribed by his [primary
care physician], in midst of [an] inability to sustain his livelihood
due to debilitating arthritic pain.
As patient has sustained multiple significant severe losses, he
remains at high risk of suicide, for which he remains in need of
continued acute psychiatric hospitalization for crisis intervention
and of disposition needs.
Id. at 7. Dr. Tsao subsequently filed a Section 3032 Application for Extended
Involuntary Treatment (“the Section 303 Application”), which set forth the
same information as provided in the Section 302 Application. Following a
hearing, the trial court entered an Order granting the Section 303 Application.
On that same date, however, Dr. Tsao released Weimer.
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2 See 50 P.S. § 703.
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On April 26, 2019, Weimer filed a Complaint averring causes of action
against Defendants for medical malpractice, false imprisonment, and punitive
damages. Following the filing of Preliminary Objections, Weimer filed an
Amended Complaint. The Amended Complaint again averred causes of action
for medical malpractice and false imprisonment. Defendants filed Preliminary
Objections in the nature of a demurrer. Following argument, the trial court
entered an Order sustaining the Preliminary Objections and dismissing the
Amended Complaint with prejudice. Thereafter, Weimer filed the instant
timely Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of matters complained of on appeal.
Weimer presents the following claims for our review:
1. Should [] Weimer’s claim for false imprisonment have been
dismissed with prejudice?
2. Should Weimer’s entire Complaint have been dismissed with
prejudice pursuant to immunity of [Defendants]?
3. Should [] Weimer’s claims for punitive damages have been
dismissed with prejudice?
Brief for Appellant at 3 (issues renumbered).
When considering a trial court’s order sustaining preliminary objections,
the standard and scope of review we apply is as follows:
[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.
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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) (citation omitted).
We will address Weimer’s first two claims together, as they are related.
Weimer first argues that the trial court improperly dismissed his claim for false
imprisonment with prejudice.3 Brief for Appellant at 8. Weimer argues that
there are material issues in dispute related to the probable cause
determination. Id. at 11. Weimer directs our attention to evidence that his
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3
The elements of false imprisonment are
(1) the detention of another person, and (2) the unlawfulness of
such detention. An arrest based upon probable cause would be
justified, regardless of whether the individual arrested was guilty
or not. Probable cause exists when the facts and circumstances
which are within the knowledge of the police officer at the time of
the arrest, and of which he has reasonably trustworthy
information, are sufficient to warrant a man of reasonable caution
in the belief that the suspect has committed or is committing a
crime.
Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (internal citations
and quotation marks omitted).
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sister and family members requested his discharge; he never refused
treatment; he never threatened to leave against medical advice; he
cooperated with all examinations; Dr. Tsao refused to continue Weimer’s
medications for treatment of Meneire’s disease; Weimer began to suffer from
dizziness and hearing loss as a result of the discontinuance of his medications;
and, when Weimer requested the opportunity to hire a private attorney, he
was told he must use a public defender. Id. at 8-9.
Weimer further directs our attention to the discrepancy between Officer
Kasterko’s statement that Weimer had attempted to find a firearm, and Dr.
Tsao’s statement that Weimer had “grabbed his gun to shoot himself in front
of the police officers[.]” Id. According to Weimer, this discrepancy “calls into
question the existence of probable cause.” Id. Weimer points out that four
days after the hearing on the Section 303 Application, March 20, 2017, the
trial court entered an Order committing Weimer for inpatient treatment. Id.
at 10. However, Dr. Tsao released Weimer from treatment on that same day.
Id. According to Weimer, “[t]he fact that [] Weimer was released by Dr. Tsao
four days after the [Section] 303 hearing[] strongly suggests a lack of
probable cause.” Id.
In his second claim, Weimer argues that the trial court should not have
dismissed his Complaint, in its entirety, pursuant to the immunity provisions
of the MPHA. Brief for Appellant at 13. According to Weimer, Dr. Tsao’s
statement that Weimer had “grabbed [the officer’s] gun to shoot himself in
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front of the officers” is a gross exaggeration of Officer Kasterko’s statement
that Weimer had “attempted to get a firearm.” Id. Weimer argues that,
based on the cross-examination of Dr. Tsao at the Section 303 hearing, “[i]t
cannot be said that the doctor was unaware of the allegation that he had
embellished and exaggerated the statements of the police officers.” Id. at
14.
Our review discloses that Weimer was involuntarily committed under the
provisions of the MHPA. As this Court has recently explained,
[u]nder 50 P.S. § 7302(a)(2), a person may be seized without a
warrant and taken to a facility for an emergency examination if an
officer personally observes “conduct of a person constituting
reasonable grounds to believe that he is severely mentally
disabled and in need of immediate treatment....” Section 7301
states that “[a] person is severely mentally disabled when, as a
result of mental illness, his capacity to exercise self-control,
judgment and discretion in the conduct of his affairs and social
relations or to care for his own personal needs is so lessened that
he poses a clear and present danger of harm to others or himself,
as defined in subsection (b), or the person is determined to be in
need of assisted outpatient treatment as defined in subsection
(c).” 50 P.S. § 7301(a). A person presents a “clear and present
danger” to himself or others if, within the past 30 days, he has
shown that he cannot satisfy his own need for nourishment,
personal or medical care, shelter, or safety; he has attempted
or threatened suicide or there is a reasonable probability
he will commit suicide; or he has mutilated himself or
attempted or threatened to do so. 50 P.S. § 7301(b)(2)(i)-(iii).
Commonwealth v. Schneider, 2020 PA Super 218, at *20-21 (emphasis
added).
Under its provisions, the MHPA additionally provides for immunity from
civil liability, providing as follows:
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§ 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 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).
Our Supreme Court has adopted the following definition of gross
negligence:
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.
Albright v. Abington Mem’l Hosp., 696 A.2d 1159, 1164 (Pa. 1997)
(citation and internal quotation marks omitted).
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
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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.
Id. at 1164-65.
Here, the trial court set forth the circumstances of Weimer’s
commitment under Sections 302 and 303, and applied the immunity
provisions of the MHPA, as follows:
First, the report of police officers who interacted with [] Weimer.
Initially, when they went to his home and had to inform him that
his ex-wife, who, although she was his ex-wife[,] was still living
with him, that she had committed suicide. And the statement of
the police officers and the 302 Application For Involuntary
Emergency Examination and Treatment, was that [] Weimer had
an episode and became violent and attempted to get to a firearm.
After a struggle[,] he insisted on [sic] he was going to kill himself.
During the trip to the hospital[,] he was calm.
That is the statement of the police officers in the [Section]
302 [A]pplication.
Dr. Tsao’s results of examination in the [Section] 302
[A]pplication under [P]art IV, entitled, “Physician’s Examination,”
are as follows….
Dr. Tsao indicated, “Patient is a 57-year-old male, initially
referred from ED” –which, I believe is the emergency
department—“on [Section] 201 status after he grabbed his gun to
shoot himself in front of police officers who informed him of his
[ex-]wife’s suicide by jumping off a bridge. This incident was
preceded by re-emergent symptoms of depression after patient,”
… “patient discontinuance of anti-depressants prescribed by his
[primary care physician] in midst of inability to sustain his
livelihood due to debilitating arthritic pain.”
Those were Dr. Tsao’s findings. And then below that, under
the section entitled, “Treatment Needed,” Dr. Tsao indicated, “As
patient has sustained multiple significant and severe losses, he
remains at high risk of suicide for which he remains in need of
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continued acute psychiatric hospitalization for a crisis
intervention, treatment, stabilization, followed by assessment of
disposition needs.
So I do agree with [Defendants’ counsel] that with
respect to the claim of false imprisonment, that the facts
clearly indicated that the police officers have probable
cause to detain [] Weimer and transport him to the
hospital.
Upon being brought to the hospital, then Dr. Tsao relied on
the statements of the police officer in the [Section] 302
[A]pplication, as well as his own examination of [] Weimer. And
that based on the statements of the police officer and his own
independent examination, he made the determination in good
faith that [] Weimer was a threat to either himself or others, and
that he was in need of involuntary commitment and treatment.
The results of the examination as set forth by Dr. Tsao, [the
court] acknowledge[s], are not verbatim or exactly what the police
officer stated, but, frankly, [the court] find[s] that they do not
differ all that much. And it certainly does not, in [the court’s]
opinion, rise to the level of willful misconduct or gross negligence.
The police officers reported that [] Weimer had an episode.
He became violent. And he attempted to get to a firearm. He
struggled with the police and he insisted he was going to kill
himself.
Based on that, and [Dr. Tsao’s] own examination, Dr. Tsao
determined that [] Weimer had threatened to commit suicide.
And, in fact, made an overt attempt to get to a firearm and commit
suicide.
Coupled with that, [Dr. Tsao] also made the determination
based on his examination that [] Weimer had also experienced
other significant issues related to him discontinuing his anti-
depressant medication that was prescribed by his primary care
physician. And that he was going through a difficult time as a
result of losing his livelihood due to debilitating arthritic pain.
Based on that examination, again, Dr. Tsao made the
determination that involuntary treatment was appropriate.
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* * *
So[,] in this case, … [the court is] mindful that we are at
the preliminary objections stage[,] and not the summary
judgment stage. However, [the court] finds that a reading of the
[A]mended [C]omplaint and the exhibits that are part of the
[A]mended [C]omplaint do not establish willful misconduct or
gross negligence. And, at best, they may support a claim for
ordinary carelessness or ordinary negligence, which frankly, [the
court does not] even see that. But [the court] clearly find[s] that
the facts do not substantiate willful misconduct or gross
negligence.
[The court] agree[s] … that the provisions of Section 7114
of the [MHPA] are applicable and do provide immunity from
civil and criminal liability for both of the named defendants in
this case.
N.T., 1/3/20, at 14-18, 21.
Thus, the trial court determined that the allegations of the Complaint,
taken as true, do not overcome the immunity afforded by the MHPA. See id.
Upon review, we agree with the sound reasoning of the trial court, as set forth
above, and affirm on this basis with regard to Weimer’s first and second
claims. See id.
In his third claim, Weimer argues that the trial court improperly
dismissed his punitive damages claim with prejudice. Brief for Appellant at
11. Weimer argues that “punitive damages may be awarded upon a finding
of incompetence on the part of Dr. Tsao in so recklessly and erroneously
interpreting the statements of the police officers.” Id. at 12. According to
Weimer, the plain language of section 4603 makes clear that “a cause of action
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for incompetence, independent of gross negligence[,] can overcome section
4603 immunity.” Id.
As set forth above, the immunity provisions of the MHPA precluded
causes of action against Defendants for false imprisonment and malpractice.
“It is axiomatic … that a claim for punitive damages arises out of the
underlying cause of action and, therefore, absent a viable cause of action, an
independent claim for damages cannot stand.” Kirkbride v. Lisbon
Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989). Consequently, the
dismissal of Weimer’s underlying causes of action precluded his claim for
punitive damages. See id.
Notwithstanding, Weimer’s claim for punitive damages is not supported
by Pennsylvania law. Pursuant to Section 505 of the Medical Care Availability
and Reduction of Error Act, 40 P.S. § 1303.505, punitive damages may only
be awarded against a medical provider as follows:
(a) AWARD.—Punitive 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. In
assessing punitive damages, the trier of fact can properly consider
the character of the health care provider’s act, the nature and
extent of the harm to the patient that the health care provider
caused or intended to cause and the wealth of the health care
provider.
(b) GROSS NEGLIGENCE.—A showing of gross negligence is
insufficient to support an award of punitive damages.
(c) VICARIOUS LIABILITY.— Punitive damages shall not be
awarded against a health care provider who is only vicariously
liable for the actions of its agent that caused the injury unless it
can be shown by a preponderance of the evidence that the party
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knew of and allowed the conduct by its agent that resulted in the
award of punitive damages.
40 P.S. § 1303.505. As this Court has explained,
[p]unitive damages will lie only in cases of outrageous behavior,
where defendant’s egregious conduct shows either an evil motive
or reckless indifference to the rights of others. Punitive
damages are appropriate when an individual’s actions are of such
an outrageous nature as to demonstrate intentional, willful,
wanton, or reckless conduct.
Dubose v. Quinlan, 125 A.3d 1231, 1240 (Pa. Super. 2015) (citation
omitted).
As the trial court stated above, “the facts do not substantiate willful
misconduct or gross negligence.” N.T., 1/3/20, at 21. Further, our review
shows no evidence of conduct of an outrageous nature demonstrating an evil
motive or reckless indifference to the rights of others. See Dubose, 125 A.3d
at 1240. Even if Weimer’s punitive damages claim could stand independent
of his claims of medical malpractice and false imprisonment, we would find no
error in the trial court’s dismissal of Weimer’s Complaint. Accordingly, we
affirm the Order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2020
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