MACFARLANE v. THE PAVILION AT BRADFORD REGIONAL MEDICAL CENTER et al
Filing
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MEMORANDUM OPINION that 50 MOTION for Summary Judgment and Memorandum in Support of Summary Judgment filed by THE PAVILION AT BRADFORD REGIONAL MEDICAL CENTER, BRADFORD HOSPITAL, will be granted. An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 4/10/19. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GEORGE R. MACFARLANE, in his
own right, by and through his power
of attorney, Mary Beth Lewis,
Plaintiff
)
)
)
)
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v.
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)
THE PAVILION AT BRADFORD
)
REGIONAL MEDICAL CENTER, et al., )
Defendants.
)
C.A. No. 17-12 Erie
District Judge Susan Paradise Baxter
MEMORANDUM OPINION
I.
INTRODUCTION
A.
Relevant Procedural History
On January 17, 2017, Plaintiff George R. MacFarlane, an adult resident of the State of
New York, initiated this action in his own right and by and through his power of attorney, Mary
Beth Lewis, against Defendants The Pavilion at Bradford Regional Medical Center (“The
Pavilion”), a skilled nursing facility, and Bradford Hospital (“Bradford”), both having principal
places of business in McKean County, Pennsylvania. Plaintiff asserts professional liability
claims against Defendants arising from the sexually inappropriate touching of Plaintiff by
another resident on January 27, 2015, which allegedly resulted in the removal of Plaintiff’s right
testicle approximately eight months later. As relief for his claims, Plaintiff seeks monetary
damages in excess of the jurisdictional limit of 28 U.S.C. § 1331.
Now pending before this Court is Defendants’ motion for summary judgment [ECF No.
50], asserting that Plaintiff did not suffer an injury from the incident at issue, and is, thus, unable
to prove causally related harm, as a matter of law. Alternatively, Defendants argue that, pursuant
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to Pennsylvania’s Mental Health Procedures Act, 50 Pa.C.S. § 7114(a), Plaintiff is required to
prove that Defendants were grossly negligent in order to establish liability, which Plaintiff
cannot do as a matter of law. Plaintiff has since filed a brief in opposition to Defendant’s motion
[ECF No. 55], to which Defendant has filed a reply brief [ECF No. 59]. This matter is now ripe
for consideration.
B.
Relevant Factual History1
At the time of the incident at issue in this case, Plaintiff was an 87-year old male who
suffered from dementia with periods of delusions. (ECF No. 51, at ¶ 1). In addition, Plaintiff had
no short-term memory. (Id. at ¶ 2). Plaintiff entered The Pavilion as a resident in 2006 because
his family felt he was no longer able to live independently. (Id. at ¶ 4).
Sometime in the Fall of 2014, Richard Knight (“Knight”), a diagnosed schizophrenic,
was admitted as a resident at The Pavilion and was assigned to the same room as Plaintiff. (Id. at
¶ 10). On one occasion in October or November 2014, Plaintiff’s son witnessed Knight give
Plaintiff a “wet Willie” by putting a wet finger in Plaintiff’s ear. (Id. at ¶ 11). Plaintiff’s son told
Knight never to touch his father again and then complained to The Pavilion staff, who also
instructed Knight not to touch Plaintiff. (Id. at ¶¶ 13-14). After this incident, Plaintiff’s family
never witnessed Knight touch Plaintiff again, nor did they make any other complaints to staff
regarding Knight. (Id. at ¶ 14, 16).
In November and December 2014, Plaintiff complained of testicular pain and was treated
with antibiotics for a urinary tract infection by urologist, Dr. Godfrey. (Id., at ¶¶ 7-8). In
addition, a testicular ultrasound conducted on January 8, 2015, revealed a 2.27 cm mass on
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The factual history set forth herein has been gleaned from Defendants’ concise statement of material facts [ECF No.
51], to the extent the facts set forth therein are unopposed and/or amply supported by the evidence of record.
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Plaintiff’s right testicle. (ECF No. 52, at p. 65). Nonetheless, Plaintiff’s complaints of testicular
pain ended in December 2014, and he had no complaints of such pain in January 2015 (Id., at
¶¶ 8-9). In fact, Plaintiff’s medical records reflect that Plaintiff was not prescribed any new pain
medications between January 1, 2015, and September 2015. (ECF No. 52, at pp. 193-94).
On the night of January 27, 2015, Tasha Davis (“Davis”), a Certified Nursing Assistant
(“CNA”), heard Plaintiff saying “stop doing that, get that monkey out of here,” and then walked
into Plaintiff’s room and witnessed Knight sitting on Plaintiff’s bed with his hand under
Plaintiff’s blanket touching Plaintiff’s genital area. (ECF No. 51, at ¶¶ 25-26; ECF No. 52 at p.
72, and at p. 134 (internal p. 30)).2 After Davis instructed Knight to get off Plaintiff’s bed and
return to his side of the room, Davis asked Plaintiff if everything was okay, but he was unable to
tell her what had just occurred because, according to Davis, “he really wasn’t with it himself to
know what was going on.” (ECF No. 51, at ¶¶ 27, 29; ECF No. 52, Davis deposition transcript,
at p. 135 (internal p. 35)). The shift nurse, Miranda Fuller (“Fuller”), was immediately called to
the room. (ECF No. 51, at ¶ 28). When Fuller arrived she spoke to Plaintiff, who didn’t recall the
incident and didn’t know what she was talking about when she asked about it. (Id. at ¶ 32; ECF
No. 52, Fuller deposition transcript, at p. 127 (internal p. 52)). Fuller then conducted a full
physical examination of Plaintiff and did not find any indication of an injury. (ECF No. 51, at ¶
38).
The police arrived an hour or two later and questioned Plaintiff, but he had no
recollection of the incident. (Id. at ¶ 33). On the day following the incident, nursing records
reflect that when Plaintiff was asked how his night was, he responded, “I slept good, no
2
Another CNA, Jen Therrien, was also present at the time and witnessed Knight sitting on the side of Plaintiff’s bed
with his hand down the front of Plaintiff’s pants. (ECF No. 52, at pp. 125-126).
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problems here sister,” and made no mention of the incident. (Id. at ¶ 34). Plaintiff’s genitals were
also examined by a nurse on the same day, and no bruises, scratches, discoloration, or indication
of injury was found. (Id., at ¶ 39). Plaintiff was later examined by his doctor on January 30,
2015, and no injury, bruising, or complaints were noted. (Id., at ¶ 40). Since the incident
occurred, Plaintiff has never mentioned or referenced either the incident or Knight to his family,
nor has he said anything that would indicate that he recalls the incident. (Id. at ¶¶ 36, 42).
On September 6, 2015, Plaintiff consulted with Dr. Godfrey regarding the mass on his
right testicle. (ECF No. 52, at p. 194). On September 17, 2015, Plaintiff’s right testicle was
surgically removed by Dr. Godfrey. (ECF No. 51, at ¶ 45). Dr. Godfrey’s operative report
indicated that the mass near Plaintiff’s testicle did not change in character over the eight months
it was present and that Plaintiff’s pain had actually gone away, and, thus, confirmed that the
mass that was removed was not related to any trauma. (Id., at ¶ 48). Defendants have since
produced the expert report of Stanley Zaslau, a board-certified urologist, who reviewed
Plaintiff’s medical records and opined that there is no evidence of injury to Plaintiff as a result of
any touching by Knight. (Id., at ¶¶ 50-51). Instead, Dr. Zaslau concluded that Plaintiff’s
testicular issues were caused by a pre-existing underlying medical condition related to urinary
tract infections and not trauma. (Id., at ¶ 52). Plaintiff has not produced an expert report to the
contrary. (Id.).
II.
DISCUSSION
Pennsylvania substantive law governs the negligence claims raised by Plaintiff in this
diversity action. See Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000); see also Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Under Pennsylvania law, a plaintiff must prove: (1)
the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by
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the defendant; (3) a causal connection between defendant's breach and plaintiffs' injury; and (4)
actual loss or damages. Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir. 2009).
Here, Defendants argue that Plaintiff’s negligence claims fail as a matter of law because
the record evidence establishes that Plaintiff cannot prove he suffered any injury as a result of the
incident at issue, which is the basis of Defendants’ alleged breach. The Court agrees.
First, the record evidence is clear that there was no physical injury suffered by Plaintiff,
as physical examinations conducted immediately after, and within days following, the incident
revealed no bruises, scratches, discoloration, or complaints of pain. Moreover, Plaintiff’s
allegations attempting to link the surgical removal of Plaintiff’s right testicle in September 2015
to the subject incident that occurred approximately eight months earlier have been debunked by
the unrefuted medical opinions of Drs. Godfrey and Zaslau.
Second, it is plain that Plaintiff experienced no immediate or long-term harm or trauma
from the incident, as evidenced by his complete lack of recollection of the incident moments
after it occurred, and his subsequent lack of mentioning either the incident or Knight at any time
to anyone.
Nonetheless, while acknowledging Plaintiff’s total absence of recall, Plaintiff’s counsel
contends that Plaintiff had a “present sense impression that he had been violated,” as evidenced
by the fact that he was overheard saying “stop doing that, get that monkey out of here” at or near
the time he was being inappropriately touched by Knight. (ECF No. 55, at p. 7). Based on this
evidence alone, Plaintiff’s counsel argues that a jury determination exists as to whether Plaintiff
suffered a compensable injury. In support of this argument, Plaintiff cites the case of Guernsey v.
Country Living Personal Care Home, 2006 WL 1412765 (M.D. Pa. May 19, 2006), in which the
Middle District Court was faced with comparable facts.
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In Guernsey, the plaintiff, an elderly female nursing home resident with a moderate case
of dementia, was sexually assaulted by a younger male resident at the same nursing home. As a
result, the plaintiff filed suit against the nursing home and its owners alleging four separate
claims of negligence. Defendants’ expert psychiatrist opined that there was no reliable evidence
of the victim recalling the event after more than a day or two and, thus, the court concluded that
the plaintiff did not suffer any long-term trauma from the assault at issue. Guernsey, at *10. In
addition, there was no evidence of physical injury. However, it was undisputed that the plaintiff
“did experience adverse consequences during the rape and shortly after the rape, and that she
wanted to avoid [the perpetrator] at the lunch table the next day.” Id. It was also undisputed that
the plaintiff “was not her usual self the day after the rape.” Id. Thus, the court accepted the
testimony of Plaintiff’s expert that Plaintiff “showed signs of short-term memory of the sexual
misconduct” sufficient to establish liability for negligence and to sustain an award of damages.
Id., at *16.
Such is not the case here. Unlike the plaintiff in Guernsey, the Plaintiff in this case did
not exhibit any signs of short-term memory or any behaviors that indicated he suffered from any
short-term trauma as a result of the incident at issue. To the contrary, the record contains
evidence that Plaintiff had no recollection of the incident immediately after it occurred and woke
up the next morning proclaiming that he “slept good” and had “no problems,” without any
mention of the incident. (ECF No. 51, at ¶ 34). Thus, there is simply no evidence here to support
a finding that Plaintiff suffered an injury causally related to Defendants’ alleged breach of duty
that allegedly caused the assault of January 27, 2015.
The Court does not make this finding lightly. What was done to Plaintiff is deplorable
and heart-wrenching. No elderly patient should ever be preyed upon, nor should any family have
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to endure the emotional turmoil that comes with knowing that their loved one was touched
inappropriately. Yet, the Court has been presented with no evidence in this case to prove that
Plaintiff was either fully aware of, or adversely affected by the incident at issue, as a matter of
law. Summary judgment is, thus, appropriate to avoid the prospect of sympathetic jurors
conjuring up injuries and damages that are not legally sustainable. Defendants’ motion for
summary judgment will be granted, accordingly.3
An appropriate Order follows.
3
Because the Court has determined that Defendants are entitled to summary judgment based on Plaintiff’s inability to
prove injury, the Court has no reason to address Defendant’s argument that Plaintiff is unable to prove gross
negligence under the Mental Health Procedures Act, 50 P.S. § 7114(a), nor does it make any finding as to the
applicability of the Act to the facts of this case.
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