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06/17/97 JOHN W. ALBRIGHT v. ABINGTON MEMORIAL

June 17, 1997

JOHN W. ALBRIGHT, AS EXECUTOR OF THE ESTATE OF ELIZABETH JEAN ALBRIGHT AND INDIVIDUALLY IN HIS OWN RIGHT, APPELLANT,
v.
ABINGTON MEMORIAL HOSPITAL AND MONTGOMERY COUNTY EMERGENCY SERVICES, APPELLEES.



Appeal from the Order of the Superior Court entered November 22, 1995, at No. 648 Philadelphia 1995, Affirming the Order of the Court of Common Pleas of Montgomery County entered February 8, 1995, at Civil Division, No. 89-18657. JUDGE(S) BELOW: Honorable Marjorie C. Lawrence / Superior - KELLY, FORD ELLIOTT, OLSZEWSKI, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Opinion BY Mr. Justice Cappy. Mr. Justice Zappala concurs in the result. Mr. Justice Nigro files a Dissenting opinion.

The opinion of the court was delivered by: Cappy

JUSTICE CAPPY

DECIDED: June 17, 1997

This appeal raises two issues. First, whether a trial Judge can enter summary judgment in favor of a mental health facility covered under the Mental Health Procedures Act (the Act) *fn1 where an allegation of gross negligence has been offered? Second, assuming an affirmative answer to the first issue, whether in this case gross negligence has been demonstrated by the pleadings, reports, depositions, and records so as to preclude the entry of summary judgment on behalf of Appellee Abington Memorial Hospital (Appellee or the Hospital) and against Appellant John W. Albright (Appellant or Mr. Albright)? As a collateral matter, we must address the res nova issue for this court of what constitutes "gross negligence" for purposes of the Act. For the reasons which follow, we affirm the trial court's granting of summary judgment in favor of the Hospital.

In order to properly address the issues raised in this case, a detailed review of its facts and procedural history is necessary. In April, 1987, Elizabeth Jean Albright was involuntarily committed to Eugenia Hospital, and was subsequently discharged into an outpatient program after improvement of her condition. Again in August, 1988, Mrs. Albright was involuntarily committed to Thomas Jefferson Hospital. However, on September 6, 1988, it was determined that Mrs. Albright did not meet the standards for an involuntary commitment.

Shortly thereafter, Mrs. Albright was involuntarily committed to the Montgomery County Emergency Services (MCES) from September 12, 1988 through September 28, 1988 after showing psychotic symptoms, which included threats against and physical attacks upon her husband. After being treated with appropriate medication and therapy, Mrs. Albright's condition improved so that a regime of 90 days of involuntary outpatient care at the Hospital was ordered by the Montgomery County Court of Common Pleas. The court's order indicated that a failure to comply with the order would result in a return to inpatient status. The 90-day period began on September 28, and was to have elapsed on December 27, 1988. Mrs. Albright was evaluated by Dr. George Buck, the Hospital's psychiatrist on September 30, 1988. She was diagnosed as having a bipolar disorder, i.e., a manic depressive disorder.

The arrangements for the outpatient treatment included therapy sessions once a month for three months. While Mrs. Albright refused to sign the consent to treatment, she did attend the first therapy session with her husband on October 13, 1988 and the second session on November 3, 1988. At both of these sessions, Dr. Buck re-evaluated Mrs. Albright. During these sessions Mrs. Albright indicated that she was not taking her medication, and that the medication was too expensive to take on a regular basis. Dr. Buck advised Mrs. Albright and her husband that she should take the medication as directed. Dr. Buck also suggested that Mrs. Albright see Audrey Moody, a social worker and clergywoman, in hope that Ms. Moody would provide supportive therapy and an insight as to the need for medication and compliance with the medical program.

Mrs. Albright failed to attend her third appointment scheduled for December 8, 1988 with Ms. Moody. Evidently, neither Dr. Buck, Mr. Albright, MCES nor the Hospital's case management office were informed that Mrs. Albright had missed her December 8 session.

On December 10, 1988, when the family visited Mrs. Albright's father, a renowned physician, her condition began to deteriorate. Mrs. Albright's father observed to Mr. Albright that Mrs. Albright was overly active and becoming manic. As the Christmas holiday approached, Mrs. Albright's condition continued in decline.

Although the dates are somewhat unclear, it appears that on December 21, 1988, the 84th day of the 90-day outpatient treatment program, Mr. Albright called the Hospital and informed Ms. Moody that Mrs. Albright was not taking her medication and was losing touch with reality. He was told that someone would return his call. Early the next morning, Mr. Albright called MCES, after failing to reach anyone at the Hospital. The person to whom he spoke promised to investigate. Mr. Albright testified that later that day, the Hospital's doctor with whom Mrs. Albright had the appointment on December 8th called and stated that because Mrs. Albright had missed her appointment, there was nothing that the Hospital could do. The doctor did advise that he call MCES. However, in Mr. Albright's follow-up telephone conversation with MCES, MCES explained that the Hospital would have to handle the problem. At that point, the individual that Mr. Albright spoke with originally at MCES called back and stated that the Hospital's case management unit would handle the situation and that Mr. Albright was to contact Mr. Joseph Windish of the Hospital's case management office.

In a subsequent telephone conversation with Mr. Windish, Mr. Albright explained that Mrs. Albright was having a breakdown, was becoming manic, and was in need of medical help. However, Mr. Windish informed Mr. Albright that as the 90-day treatment period was almost at end, it would be highly irregular to have a patient committed that late in the treatment plan. Upon Mr. Windish's request, Mr. Albright described Mrs. Albright's behavior. He stated that his wife had let the dinner burn in the oven so that smoke was coming out of the oven when he arrived home from work. He explained that Mrs. Albright had been walking at night and was chain smoking. Finally, he described cigarette burns in six-month-old furniture, but was not sure when the burns were made.

Mr. Windish's notes indicate that he explained to Mr. Albright that as there were only four days left in Mrs. Albright's treatment period, that this was not enough time to attempt a § 306 transfer, *fn2 and suggested that Mr. Albright attempt an involuntary commitment under § 302. *fn3 Mr. Albright responded that he had filed numerous § 302 petitions in the past but that his wife was still not getting the help that she needed. The conversation ended with Mr. Windish informing Mr. Albright that he would discuss the situation with his supervisor, Mr. Scott McCalla.

Mr. Albright called the Hospital later that day and again spoke with Mr. Windish. By that time Mr. Windish had spoken with his supervisor who indicated that nothing could be done as there was no time for a § 306 transfer and that the case was probably not strong enough to qualify for a § 302 commitment. Mr. Windish stated that he would call Mrs. Albright and schedule an appointment with her for December 28, the earliest available date. He also indicated that he would attempt to determine whether anyone had followed up on Mrs. Albright's missed appointment.

After speaking with Ms. Moody, who agreed to meet with Mrs. Albright on December 28, Mr. Windish telephoned Mrs. Albright to reschedule. However, Mrs. Albright became verbally aggressive, indicated that she wanted to focus on Christmas with her family and that she was through with appointments. Mrs. Albright did tell Mr. Windish to call back after Christmas and that she might reschedule at that time.

Upon his arrival that evening, Mr. Albright asked his wife if anyone had called from the Hospital, to which Mrs. Albright replied, "I told them I would meet them at the ocean." After an uneventful evening during which Mrs. Albright may have spoken with her father, Mrs. Albright's father called Mr. Albright at approximately 10:00 p.m. and told him to get his wife into a hospital. When the Albright's son returned home at approximately 10:30 p.m., he engaged in an argument with his mother. Thereafter, Mr. Albright and his son retired upstairs for the evening leaving Mrs. Albright downstairs in the den where she slept.

In the morning hours of December 23, 1988, a fire erupted in the Albright home which took Mrs. Albright's life. The fire was determined to have originated in the den. While the cause of the fire was never established with certainty, it was ...


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