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Gloria Vazquez v. Chs Professional Practice

February 21, 2012

GLORIA VAZQUEZ,
APPELLANT
v.
CHS PROFESSIONAL PRACTICE, P.C., T/A COORDINATED HEALTH, APPELLEE



Appeal from the Order Entered June 9, 2011, in the Court of Common Pleas of Monroe County, Civil Division, at No: 2009-Civil-01834.

The opinion of the court was delivered by: Bowes, J.

J-A36015-11

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OLSON, JJ.

OPINION BY BOWES, J.:

Gloria Vazquez appeals the June 9, 2011 order granting CHS Professional Practice, P.C., t/a Coordinated Health's ("CHS") motion for summary judgment in this medical negligence action. Ms. Vazquez was proceeding on the theory that the doctrine of res ipsa loquitur obviated any need for expert medical testimony. The trial court held that the specific factual circumstances of Ms. Vazquez's injury were beyond the comprehension of the average layperson, that the injury could occur in the absence of negligence, and that she had not eliminated other possible causes, thus rendering the doctrine of res ipsa loquitur inapplicable. We agree and affirm.

Ms. Vazquez commenced the within action via a writ of summons on February 29, 2009. After CHS ruled her to file a complaint, she complied, seeking damages for the negligent removal of a pain pump catheter by a physician's assistant employed by CHS, which resulted in a fragment of the catheter remaining in her left shoulder. Due to the alleged negligence, Ms. Vazquez was required to undergo a second arthroscopic procedure a week later to remove the piece of medical device. In her certificate of merit filed pursuant to Pa.R.C.P. 1042.3(a)(3), she averred that expert testimony of an appropriately licensed medical professional was unnecessary for the prosecution of her claim.

At the close of the pleadings, CHS filed a motion for summary judgment pursuant to Pa.R.C.P. 1035.2, alleging that catheters can and do break in the absence of negligence and attached the report of Elliott H. Leitman, M.D., a board-certified orthopedic surgeon, to that effect. Thus, CHS argued, res ipsa loquitur was inapplicable and, in the absence of competent expert medical testimony, Ms. Vazquez could not make out a cognizable medical negligence claim.

On June 9, 2011, following submission of briefs and oral argument, the trial court granted summary judgment in favor of CHS. Ms. Vazquez timely appealed to this Court and the trial court ordered her to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Ms. Vazquez complied and the trial court issued its Pa.R.A.P. 1925(a) opinion. Ms. Vazquez's sole contention on appeal is that the trial court erred in granting CHS's motion for summary judgment on the ground that expert testimony was required to prove negligence rather than the application of the doctrine of res ipsa loquitur. Appellant's brief at 4.

"Our scope of review of a trial court's order granting or denying summary judgment is plenary[.]" Krapf v. St. Luke's Hospital, 4 A.3d 642, 649 (Pa.Super. 2010). We may not disturb the order of the trial court unless it is established that the court committed an error of law or abused its discretion. Coleman v. Wyeth Pharmaceutical, Inc., 6 A.3d 502 (Pa.Super. 2010).

In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

Coleman, supra, at 509 (quoting ADP, Inc. v. Morrow Motors Inc., 969 A.2d 1244, 1246 (Pa.Super. 2009)). Summary judgment should be granted when the "party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury." Ertel v. Patriot News Co., 674 A.2d 1038, 1041-42 (Pa. 1996).

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. Mutual Ben. Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743 (Pa. 1999); Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338, 342 (Pa.1939). Because medical malpractice is a form of negligence, to state a prima facie cause of action, a plaintiff must demonstrate the elements of negligence: "a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of harm." Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (Pa. 1997). With all but the most self-evident medical malpractice actions there is also the added requirement that the plaintiff must provide a medical expert who will testify as to the elements of duty, breach, and causation. Id.

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070- 1071 (Pa. 2006).

In the instant case, Ms. Vazquez filed a certificate of merit indicating that expert testimony was unnecessary to present a prima facie case of medical negligence against CHS.*fn1 She viewed the malpractice herein as "so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even non professional persons[,]" that expert testimony was not required. See Brannon v. Lankenau Hospital, 417 A.2d 196, 201 (Pa. 1980). She intended to rely upon the doctrine of res ipsa loquitur, which allows the fact-finder to infer from the circumstances surrounding the injury that the ...


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