K.H. v. Kumar

122 A.3d 1080

2015 PA Super 177

K.H., a Minor, by his Parent and Natural Guardian, H.S., and Parent and Guardian, E.H., in their Own Right, Appellants

v.Shakthi M. KUMAR, M.D., et al.

No. 497 MDA 2014

Superior Court of Pennsylvania.

Argued March 3, 2015.

Filed Aug. 25, 2015.

Reargument Denied Oct. 28, 2015.

Joel J. Feller, Philadelphia, for appellants.

Elaine M. Moyer, Norristown, for Devenyi, appellee.

Michael M. Badowski, Camp Hill, for Diverio, Avallone and AO Orthopedics, appellees.

Brett W. Farrar, Camp Hill, for Mack and Lancaster Radiology, appellees.

Katherine B. Kravitz, Lancaster and Gary M. Samms, Philadelphia, for Lancaster Hospital, appellee.

Andrew K. Worek, Berwyn, for Kumar and Lancaster Pediatric Assoc., appellees.

Kimberly A. Boyer–Cohen, Philadelphia, for Smigocki, appellee.

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.^*

Opinion

OPINION BY WECHT, J.:

K.H. through his parents, H.S. and E.H.,¹ and his parents individually (collectively, “Appellants”), appeal the trial court's November 27, 2013, and February 19, 2014 orders granting summary judgment in favor of Appellees Shakthi Kumar, M.D.; Yvonne Siwek, M.D.; Lancaster Pediatric Associates, Ltd. (“Lancaster Pediatric”); Donald Diverio, Jr., D.O.; AO Orthopedics, Inc.; Vincent Avallone, Jr., D.O.; Julie A. Mack, M.D.; Gene C. Smigocki, M.D.; Lancaster Radiology Associates, Ltd. (“Lancaster Radiology”); Lancaster General Hospital (“LGH”), Atilla Devenyi, M.D.; and Regional Gastroenterology Associates of Lancaster, Ltd. (“Regional Gastroenterology”) (collectively, “Appellees”), and dismissing Appellants' amended complaint with prejudice. Although this case nominally presents several issues, their resolution principally rests upon our answer to one question: Whether, as the trial court ruled, the lack of an express statutory civil remedy under the Child Protective Services Law (“CPSL”), 23 Pa.C.S. §§ 6301, et seq., implicitly precludes a common-law remedy in tort for harms sustained due to child abuse when a physician has failed to report reasonable suspicions that a child is a victim of abuse to the government authorities designated by the CPSL. After careful review of the record and the seventeen party briefs filed in this case, we reverse and remand for further proceedings.

I. Introduction

This case presents this Court with various challenges to two trial court orders that entered summary judgment for Appellees and collectively dismissed all of Appellants' claims against the Appellees. Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides as follows:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion including the production of expert reports, an adverse 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.

Pa.R.C.P. 1035.2.

In reviewing an order granting or denying summary judgment, we apply the following standard:

We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. We will only reverse the lower court's grant of summary judgment if there is a manifest abuse of discretion. Summary judgment should be granted only in cases where the right is clear and free of doubt. Summary judgment serves to eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality.

First v. Zem Zem Temple, 454 Pa.Super. 548, 686 A.2d 18, 20 (1996) (citations and internal quotation marks omitted).

Although it is clear that a jury is not permitted to reach a verdict based upon guess or speculation, it is equally clear that a jury may draw inferences from all of the evidence presented. Cade v. McDanel, 451 Pa.Super. 368, 679 A.2d 1266 (1996).

It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.... The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of [the] plaintiffs to produce substantial evidence which, if believed, warrants the verdict they seek.... A substantial part of the right to trial by jury is taken away when judges withdraw close cases from the jury....

Id. at 1271, 686 A.2d 18 (quoting Smith v. Bell Tel. Co. of Penna., 397 Pa. 134, 153 A.2d 477, 480 (1959) ).

First, 686 A.2d at 21 (citations modified).

II. FACTUAL AND PROCEDURAL HISTORY

As noted, we are constrained in this procedural posture to grant Appellants the most favorable account of the evidence of record. For present purposes, the trial court's account of the factual background and procedural history of this case suffices.

[K.H.] was born to [H.S.] and her former husband, [C.S.], on June 29, 2002 at [LGH]. [K.H.] was born prematurely at thirty-three weeks['] gestation as a result of maternal preeclampsia. Following his birth, [K.H.] was admitted to the Neonatal Intensive Care Unit where he remained until his release from the hospital on July 15, 2002. After his discharge, [K.H.] was monitored by Dr. Shakthi Kumar at [Lancaster Pediatric]. [K.H.] suffered from respiratory, cardiac and gastrointestinal complications due to his prematurity, and was admitted to LGH on five occasions in July and August of 2002 pursuant to these issues.

On September 9, 2002, [H.S.] took [K.H.] to [Lancaster Pediatric] with symptoms including congestion, spitting up, wheezing and refusing to sleep and eat. [K.H.] was examined by Dr. Yvonne Siwek, who ordered a chest X-ray. The X-ray was performed and read by Dr. Julie Mack at LGH. Dr. Mack noted that [K.H.'s] lungs were clear, but that the X-ray showed healing fractures of the fifth and sixth ribs and flattening of the vertebral bodies at T8, T9, T12, L2, L3 and L4. Dr. Mack discussed her findings with Dr. Siwek by telephone. While concerned about the potential of child abuse, Dr. Mack concluded that the more likely cause of the injuries was a congenital issue secondary to [K.H.'s] premature birth. Dr. Siwek memorialized the conversation with an entry in her office chart and referred [K.H.] to Dr. Donald Diverio, a pediatric orthopedist at AO Orthopedics.

On September 12, 2002, [K.H.] was examined by Dr. Diverio. Dr. Diverio noted that [K.H.] became irritable upon palpation of his ribs. Dr. Diverio additionally reviewed the September 9th X-rays. At the conclusion of the office visit, Dr. Diverio accused [H.S. and C.S.] of child abuse.¹ After the appointment, [H.S. and C.S.] took [K.H.] to see Dr. Kumar and told her about Dr. Diverio's allegations. [Appellants] assert that, following their conversation, Dr. Kumar called Dr. Diverio and discussed [K.H.'s] injuries with him.

..........¹

During his deposition, Dr. Diverio denied accusing [H.S. and C.S.] of abusing [K.H.]. Nevertheless, for summary judgment purposes, viewing the record in the light most favorable to the non-moving party, the [c]ourt will assume that these allegations were made as pled in Plaintiffs' Amended Complaint.

Later the same day, [K.H.] underwent a bone survey performed and read by Dr. Mack at LGH. Dr. Mack's report identified healing rib fractures and vertebral deformities.

On October 2, 2002, [K.H.] was seen by Dr. Atilla Devenyi, a gastroenterologist at [Regional Gastroenterology]. Dr. Devenyi examined [K.H.] and noted a rash or bruise on his sternum and chest wall. Dr. Devenyi reported his findings to Dr. Kumar. [K.H.] was seen in Dr. Kumar's office on October 3, 2002, where she also observed the mark on his lateral chest wall and sternum. Dr. Kumar noted in her office chart, “Seen by Dr. Devenyi yesterday. Ordered PT/PTT, CBC with platelets for a pattern seen on the chest that was suspicious for abuse. He also ordered a skeletal survey [.”] Later that day, Dr. Kumar spoke with Dr. Devenyi about the skeletal survey and laboratory tests that he ordered, and, following their conversation, the tests were canceled.

On December 3, 2002, [K.H.] presented at [Lancaster Pediatric] for an appointment with Dr. Kumar. Dr. Kumar examined [K.H.] and noted an increase in the size of his head as well as a bruise on his forearm. On December 6, 2002, [K.H.] underwent a chest X-ray at LGH. Dr. Mack read the X-ray and reported [ ] “minimal deformity of [the] anterior lateral 7th rib compatible with [a] remote healing fracture” as well as “smooth periosteal reaction involving both humeri[.”] Dr. Mack additionally noted, “if there is any clinical concern of non-accidental trauma, full skeletal series should be performed[.”]

On December 6, 2002, [K.H.] underwent an ultrasound of his head at LGH. Dr. Gene Smigocki read and interpreted the ultrasound and noted, “no evidence of hydronephrosis. Asymmetrically prominent left frontal horn. No hemorrhage[.”]

On December 18, 2002, [K.H.] was discovered at home in his crib unresponsive by [C.S.] and was rushed to LGH. A CT scan of his head was performed [,] which showed a left frontal intracranial hemorrhage. Consequently, [K.H.] was transported via helicopter to Milton S. Hershey Medical Center. It was later confirmed that [K.H.] had suffered non-accidental injuries including “contusion in the high left parietal region with surrounding edema with mass effect, interhemispheric subdural hematoma, tentorium subdural hematoma, and small left

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