IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mickey Santos Colon,                            :
                 Appellant                      :
                                                :
               v.                               :
                                                :
Correct Care Solutions, LLC,                    :
Dr. Roble, Theresa Delbalso,                    :
Christopher Oppman, John Wetzel                 :   No. 834 C.D. 2018
and Susan Wislosky[1]                           :   Submitted: November 2, 2018


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: August 8, 2019


               Mickey Santos Colon (Colon) appeals from the February 28, 2018
order of the Court of Common Pleas of Schuylkill County (trial court), which

       1
          The Pennsylvania Superior Court transferred the instant appeal to this Court because the
Superior Court deemed this action to be a “civil action against the Commonwealth government
and Commonwealth officers acting in an official capacity.” Superior Court Order dated June 19,
2018. In addition to naming Dr. Roble and Correct Care Solutions, LLC (CCS) as defendants,
Colon initiated this action against: Theresa Delbalso (Delbalso), Department of Corrections
(Department) Superintendent; Christopher Oppman (Oppman), Department Deputy Secretary;
John Wetzel (Wetzel), Department Secretary; and Susan Wislosky (Wislosky), retired Department
registered nurse. See Complaint, Original Record (O.R.) Item No. 11. (Delbalso, Oppman, Wetzel
and Wislosky are collectively referred to as Department Defendants). This appeal involves the
trial court’s dismissal, on preliminary objections, of Colon’s Second Amended Complaint, which
did not include the Department Defendants. The Department Defendants had been named in
Colon’s initial Complaint as well as his Amended Complaint. By order dated November 17, 2017,
the trial court granted the Department Defendants’ preliminary objections to Colon’s Amended
Complaint and dismissed the Amended Complaint. Colon subsequently filed the Second Amended
Complaint against only Dr. Roble and CCS.
granted the preliminary objections of Correct Care Solutions, LLC (CCS) and David
Roble, M.D. (Dr. Roble) and dismissed with prejudice Colon’s Second Amended
Complaint.2 Upon review, we affirm.
               The Second Amended Complaint sets forth the following allegations.
At all relevant times, Colon was an inmate housed at State Correctional Institution-
Mahanoy (SCI-Mahanoy). Second Amended Complaint ¶ 1. CCS is the health care
provider for all Department of Corrections (Department) facilities. Id. ¶ 3. Dr.
Roble is a licensed physician acting as an agent of CCS by providing medical
services to inmates at SCI-Mahanoy. Id. ¶ 2. On or about April 26, 2016, Dr. Roble
prescribed a medication for Colon that caused his blood pressure to spike, requiring
outside hospitalization on April 30, 2016. Id. ¶ 4. Colon was informed, in the
presence of two transporting officers, that he was given the wrong medication. Id.
Colon alleges that he filed grievances and appeals to the final level through the
inmate grievance system. See id. ¶¶ 5-11. Count I of the Second Amended
Complaint asserts a claim for medical negligence against Dr. Roble. Id. at 3. Count
II of the Second Amended Complaint asserts both vicarious liability and corporate
negligence claims against CCS. Id. at 4.
               Dr. Roble and CCS filed preliminary objections, challenging the legal
and factual sufficiency of both Counts. The trial court granted the preliminary
objections, and Colon appealed.3

       2
           Appellees Correct Care Solutions, LLC and Dr. Roble were precluded from filing a brief
in this matter for failure to comply with this Court’s order of September 11, 2018, directing them
to file a conforming brief on or before September 25, 2018. Cmwlth. Ct. Order 10/26/18.
       3
        On appeal from a trial court’s dismissal of a complaint based on preliminary objections,
we have stated:

               this Court’s review is limited to determining whether the trial court
               committed an error of law or an abuse of discretion. When
                                                2
              On appeal, with respect to Count I, Colon argues that his Second
Amended Complaint adequately asserts a claim for medical negligence against Dr.
Roble and that the trial court erred in ruling that this claim requires expert testimony.
See Colon’s Brief at 6. Colon argues that he did not claim in his Second Amended
Complaint that Dr. Roble deviated from a professional standard of care, and
therefore, expert testimony is not necessary to establish that Colon was prescribed
the wrong medication. Colon’s Brief at 8-12. Colon further asserts that Count II of
his Second Amended Complaint sufficiently alleges corporate negligence against
CCS in its supervision of Dr. Roble and that this corporate negligence claim does
not require expert testimony. Id. We disagree.
              In Count I, Colon asserts medical negligence against Dr. Roble,
consisting of:


                 (a) [f]ailure to possess or exercise the care, skill,
              judgment and training required for undertaking the
              medical care and treatment of [Colon], together with the
              counseling and advice relative to the medication
              prescribed;
                 (b) failure of Defendant, [Dr.] Roble to ensure an
              adequate history from [Colon] for the advice, counsel and
              medication provided by the Defendant to [Colon];


              considering preliminary objections, we must accept as true all well-
              pleaded material facts alleged in the complaint and all reasonable
              inferences deducible therefrom. A preliminary objection should be
              sustained only in cases when, based on the facts pleaded, it is clear
              and free from doubt that the facts pleaded are legally insufficient to
              establish a right to relief. Because a preliminary objection in the
              nature of a demurrer presents a question of law, this Court’s standard
              of review of a court of common pleas’ decision to sustain a demurrer
              is de novo and the scope of review is plenary.

Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018) (internal quotation marks omitted)
(quoting Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017)).
                                                3
                    (c) failure to provide [Colon] with sufficient
                understanding of the risks involved in the medication[]
                prescribed;
                    (d) failure adequately to disclose, warn or advise
                [Colon] of the risks involved with [t]he use of the
                medication prescribed;
                    (e) being otherwise negligent and careless under the
                circumstances.
Complaint, ¶ 15(a)-(e).
                Pennsylvania Rule of Civil Procedure No. 1042.3(a) requires that
Colon, with the complaint, or within 60 days of its filing, file a certificate of merit
that an:

                (1) appropriate licensed professional has supplied a
                written statement that there exists a reasonable probability
                that the care, skill, or knowledge exercised or exhibited in
                the treatment, practice or work that is the subject of the
                complaint, fell outside acceptable professional standards
                and that such conduct was a cause in bringing about the
                harm, or
                (2) the claim that the defendant deviated from an
                acceptable professional standard is based solely on
                allegations that other licensed professionals for whom this
                defendant is responsible deviated from an acceptable
                professional standard, or
                (3) expert testimony of an appropriate licensed
                professional is unnecessary for prosecution of the claim.

Pa.R.C.P. No. 1042.3(a)(1)-(3). Generally, where a plaintiff certifies pursuant to
Pa.R.C.P. No. 1042.3(a)(3) that expert testimony is unnecessary for prosecution of
the claim, he is bound by such assertion and will thereafter be precluded from
presenting expert testimony on the questions of standard of care and causation.4
Pa.R.C.P. No. 1042.3(a)(3), Note.

      4
           The Note to Pennsylvania Rule of Civil Procedure No. 1042.3(a)(3) provides as follows:
                                                4
                 Here, the trial court ruled that Count I set forth a claim for medical
negligence and that the claim required expert testimony to establish negligence.
Trial Court Opinion 2/28/18 at 6. Because of Colon’s assertion in the certificate of
merit that expert testimony was unnecessary, and because Colon would not be able
to show that Dr. Roble deviated from the standard of care without expert evidence,
the trial court found that Colon failed to set forth a legally sufficient cause of action
for medical negligence against Dr. Roble and, therefore, dismissed Count I. See id.
We find no error in the trial court’s ruling.
                 Colon’s claim cannot succeed as his medical malpractice claim requires
such expert testimony.


                 Courts sitting in medical malpractice cases require
                 detailed expert testimony because a jury of laypersons
                 generally lacks the knowledge to determine the factual
                 issues of medical causation; the degree of skill,
                 knowledge, and experience required of the physician; and
                 the breach of the medical standard of care. In contrast,
                 plaintiffs in res ipsa loquitur[5] cases rely on the jury to fill


              In the event that the attorney certifies under subdivision (a)(3) that an expert
       is unnecessary for prosecution of the claim, in the absence of exceptional
       circumstances, the attorney is bound by the certification and, subsequently, the trial
       court shall preclude the plaintiff from presenting testimony by an expert on the
       questions of standard of care and causation.

Pa.R.C.P. No. 1042.3(a)(3), Note.
       5
           Res ipsa loquitur is applicable when:

       (1) It may be inferred that harm suffered by the plaintiff is caused by
       negligence of the defendant when

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

                                                   5
              in the missing pieces of causation and negligence, inherent
              in their cases, with the jury’s common experience.
              Determining whether there was a breach of duty, however,
              involves a two-step process: the court must first determine
              the standard of care; it then must examine whether the
              defendant’s conduct measured up to that standard. Not
              only does the 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 expert witnesses.

Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1149 (Pa. 2003) (footnote
added).

              Colon is bound by his assertion that he believes expert testimony is not
necessary, and accordingly, the trial court will preclude Colon from presenting
testimony of an expert on the questions of standard of care and causation. See
Pa.R.C.P. No. 1042.3(a)(3), Note. This Court has stated:



              (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.

       (2) It is the function of the court to determine whether the inference may
       reasonably be drawn by the jury, or whether it must necessarily be drawn.

       (3) It is the function of the jury to determine whether the inference is to be
       drawn in any case where different conclusions may reasonably be reached.

Restatement (Second) of Torts § 328(D) (Am. Law Inst. 1965).
                                                 6
             “[G]enerally[,] when the complexities of the human body
             are involved expert testimony is required to aid the jury in
             reaching conclusions as to the cause of pain or injury.”
             [Wareham v. Jeffes, 534 A.2d 1314, 1321 (Pa. Cmwlth.
             1989).] The only time expert testimony will not be
             required for a medical malpractice claim is where the
             causal connection between the defendants’ allegedly
             negligent act and the harm suffered by the plaintiff is
             “generally a matter of common knowledge,” rendering the
             jury “capable through its every day experience and
             knowledge of comprehending the facts presented and
             drawing conclusions based on those facts.” Id. Generally,
             such negligence rises to the level of gross incompetence.

McCool v. Dep’t of Corr., 984 A.2d 565, 571 (Pa. Cmwlth. 2009).
             Colon’s assertions all center on his claim that Dr. Roble prescribed the
“wrong” medication. Indeed, despite arguing that his allegations do not constitute a
professional liability claim against Dr. Roble, Colon states that Count I “is based
only on his allegations that he was prescribed the wrong medication.” Colon’s Brief
at 10; see also id. at 8. Lay persons do not have, within their common knowledge
or experience, the ability to assess whether Dr. Roble failed to exercise the care,
skill, judgment and training required for the medical care and treatment of Colon
and whether the failure to prescribe the correct medication caused Colon’s claimed
damages. See Wareham, 534 A.2d at 1321. Without expert testimony to establish
the required standard of care and causation, Colon’s claim for medical negligence
against Dr. Roble must fail. See McCool, 984 A.2d at 571 (holding that prison
inmate’s allegations were insufficient to state a claim in his action against prison
medical facility doctor, brought under medical malpractice exception to sovereign
immunity, because his certificates of merit incorrectly stated that expert testimony
was not necessary to aid the jury in reaching conclusions as to the cause of his pain
or injury; the ailments in question were such that an ordinary layperson would be

                                          7
incapable of deciding). Therefore, the trial court properly sustained the preliminary
objection for legal insufficiency to Count I of Colon’s Second Amended Complaint.
              In Count II of the Second Amended Complaint, Colon alleges both
vicarious liability and corporate negligence against CCS. The trial court dismissed
Colon’s vicarious liability claim because that claim asserts that CCS is vicariously
liable for Dr. Roble’s negligence, and the trial court had dismissed the negligence
claim against Dr. Roble. Trial Court Opinion 2/28/18 at 7. The trial court also found
that Colon did not set forth factual allegations to support a claim of corporate
negligence. Id. at 8.
              Under the theory of vicarious liability, “the corporation, as principal,
assumes the risk of individual agents’ negligence . . . .” Scampone v. Highland Park
Care Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012). “In this scenario, the corporation’s
liability is derivative of the agents’ breach of their duties of care to the plaintiff.” Id.
at 598.
              While it is unnecessary to plead all the various details of
              an alleged agency relationship, a complainant must allege,
              as a minimum, facts which: (1) identify the agent by name
              or appropriate description; and (2) set forth the agent's
              authority, and how the tortious acts of the agent either fall
              within the scope of that authority, or, if unauthorized, were
              ratified by the principal.

Alumni Ass’n, Delta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 535 A.2d
1095, 1100 n.2 (Pa. Super. 1987), aff’d sub nom. Alumni Ass’n v. Sullivan, 572 A.2d
1209 (Pa. 1990). Further, where the claim is that the principal is liable for the agent’s
professional negligence:

              a certificate of merit . . . must be filed as to the other
              licensed professionals for whom the defendant is
              responsible. The statement is not required to identify the

                                             8
               specific licensed professionals who deviated from an
               acceptable standard of care. The purpose . . . is to ensure
               that a claim of vicarious liability made against a defendant
               is supported by a certificate of merit. Separate certificates
               of merit as to each licensed professional for whom a
               defendant is alleged to be responsible are not required.

Pa.R.C.P. No. 1042.3(2)(1), Note.
               As noted above, no breach of a duty of care by Dr. Roble can be found
without expert testimony to support this claim.          Accordingly, CCS cannot be
vicariously liable for Dr. Roble’s acts when Dr. Roble’s negligence cannot be
established.
               Colon also claims that CCS is vicariously liable for the acts and
omissions of the “Defendant physicians and the nurses who administered the
medication to [Colon] as though Defendant [CCS] performed the acts or omissions
itself” and asserts that CCS maintained control over the actions of “the Defendant
physicians and nurses.” Second Amended Complaint ¶ 18. However, Colon fails to
identify the act or omission of a physician or professional other than Dr. Roble and,
as stated, CCS cannot be vicariously liable for Dr. Roble’s acts. Additionally, CCS
cannot be held liable for the acts of physicians and nurses not alleged to be agents
of CCS. Further, the claim with respect to the “Defendant physicians and nurses”
stems from allegedly providing the “wrong” medication. The physicians and nurses
cannot be found to have breached any standard of care, for which CCS would be
vicariously liable, without expert testimony to support this claim.            Thus, the
vicarious liability claim is legally insufficient.
               However, a corporation may also be liable for direct and non-delegable
duties of care to a plaintiff. Scampone, 57 A.3d at 598. As the trial court stated:




                                            9
             “Pennsylvania recognizes the doctrine of corporate
             negligence as a basis for hospital liability separate from
             the liability of the practitioners who actually have
             rendered medical care to a patient.” Rauch v. Mike-Mayer,
             783 A.2d 815, 826 (Pa. Super. 2001) (citation omitted).
             “The doctrine of corporate negligence imposes a non-
             delegable duty on the hospital to uphold a proper standard
             of care to patients.” Id. “[C]orporate negligence is based
             on the negligent acts of the institution. A cause of action
             for corporate negligence arises from the policies, actions
             or inaction of the institution itself rather than the specific
             acts of individual hospital employees.” Welsh v. Bulger,
             548 Pa. 504, 698 A.2d 581 (1997).

Trial Court Opinion 2/28/18 at 7-8. The doctrine of corporate negligence provides
for corporate liability where a medical facility fails to uphold the proper standard of
care owed its patient. Thompson v. Nason Hospital, 591 A.2d 703, 707 (Pa. 1991).
             Colon asserts in his Second Amended Complaint that CCS is liable for
corporate negligence in that it failed to:

                 (a) oversee the nurse who rendered care to [Colon] by
             not ensuring that medication records were properly
             completed, including dosage amounts, frequency, and
             adverse side effects;
                (b) formulate and/or enforce rules and policies
             pertaining to records were properly completed, including
             dosage amounts, frequency and adverse side effects;
                (c) adequately train the nurses who rendered care to
             [Colon] by not ensuring that they were aware of the
             possible adverse side effects of blood pressure spike
             associated with the medication prescribed; and
                (d) upon information and belief, failed to provide its
             physicians with adequate financial support thereby
             limiting the availability of prescription medications
             making it necessary for [Colon] to take the medication that
             caused [Colon’s] blood pressure to spike.


                                             10
Second Amended Complaint ¶ 20.
              All of these claims of corporate negligence by CCS are premised upon
Colon’s allegation that Colon was given the wrong medication and that the incorrect
medication is what caused Colon’s blood pressure to spike. As noted, Colon cannot
establish that he was given the “wrong” medication and that the medication caused
his damages without providing expert testimony. Because Colon is precluded from
producing expert testimony based upon his certificate of merit, he cannot establish
that he was given the “wrong” medication and, therefore, cannot establish any of the
alleged acts of corporate negligence that caused him to receive the “wrong”
medication. Therefore, the trial court properly sustained the preliminary objections
to the legal sufficiency of Colon’s corporate negligence claim.
                   Accordingly, for the foregoing reasons, we affirm the decision of
the trial court.



                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                          11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mickey Santos Colon,                 :
                 Appellant           :
                                     :
           v.                        :
                                     :
Correct Care Solutions, LLC,         :
Dr. Roble, Theresa Delbalso,         :
Christopher Oppman, John Wetzel      :   No. 834 C.D. 2018
and Susan Wislosky                   :

                                  ORDER


           AND NOW, this 8th day of August, 2019, the February 28, 2018 order
of the Court of Common Pleas of Schuylkill County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge