author: NEALON, J.,

text:
    Venosh v. Henzes

      C.P. of Lackawanna County,
    No. 11 CV 3058

      Gary Solomon and Justin L. Groen, for plaintiff.

      Eugene P. Feeney and Noah E. Katz, for defendants Jack Henzes, M.D. and Scranton Orthopedic Specialists, P.C.

      James A. Doherty, Jr., for defendant Cindy S. Anderson, PA-C.

      Timothy E. Foley, for defendant Moses Taylor Hospital.

      Matthew L. Bleich, for records deponents Blue Cross of Northeastern Pa. and First Priority Health.
    Aug. 8, 2014
   NEALON, J.,

— Plaintiff’s discovery appeal in this medical malpractice action presents an issue of first impression in Pennsylvania: whether a “quality of care” review conducted by a plaintiff’s own health insurance company concerning the medical treatment that the plaintiff received from the defendant health care providers is protected from discovery by the Peer Review Protection Act (“PRPA”), 63 P.S. §§ 425.1-425.4? Blue Cross of Northeastern Pennsylvania (“Blue Cross”) contends that its entire “quality of care” review, including its external peer review by a “same/similar specialist,” is shielded from discovery under the act since the statute’s definition of a “review organization” includes “a health insurance review committee” and “a hospital plan corporation review committee,” and Blue Cross utilized “professional health care providers” to perform its “quality of care” review.

The language of the PRPA, and the relevant case law interpreting that statute in comparable contexts, support the conclusion that the discovery protections afforded by the act apply only to peer reviews which are initiated and completed by organizations or individuals that provide health care services, rather than those entities that sell health insurance. Since Blue Cross is neither a direct health care practitioner, nor the administrator or operator of a health care facility, its “quality of care” reviews are not immune from discovery under the PRPA. The act’s peer review provisions may be extended to health insurance companies or hospital plan corporations only by legislative amendment of that statute. As presently worded and construed by the appellate courts, the PRPA does not protect Blue Cross’s “quality of care” review from discovery, and for that reason, plaintiff’s de novo discovery appeal will be granted.

I. FACTUAL BACKGROUND

Plaintiff, Ann Marie Venosh (“Venosh”), has filed this professional liability action against an orthopedic surgeon, Jack Henzes, M.D. (“Dr. Henzes”), his surgical assistant, Cindy S. Anderson, PA-C, and orthopedic practice group, Scranton Orthopedic Specialists, P.C., and the Moses Taylor Hospital (“Moses Taylor”), alleging injuries related to a left total knee replacement surgery that Dr. Henzes performed on Venosh at Moses Taylor on June 11, 2009. (Docket entry no. 47 at ¶¶ 1-3; docket entry no. 48 at ¶¶ 1-3). Venosh’s health insurance company at the time of her surgery and post-operative treatment was First Priority Health IPA-HMO (“First Priority”), a subsidiary of Blue Cross of Northeastern Pennsylvania (“Blue Cross”). (Docket entry no. 81 at p. 2). Blue Cross is a “hospital plan corporation” under 40 Pa. C.S. §§6101 etseq., Ambulance Association of Pennsylvania v. Highmark, Inc., 794 F. Supp. 2d 569, 575 (W.D. Pa. 2011), aff’d, 464 Fed. Appx. 64 (3d Cir. 2012), and operates a nonprofit hospital plan which provides hospitalization and related health benefits to plan subscribers for a fee. See Chow v. Rosen, 571 Pa. 369, 371 n. 1, 812 A.2d 587, 588 n. 1 (2002).

At the time of Venosh’s treatment at Moses Taylor, Blue Cross had procedures in effect governing its initiation and performance of “Quality of Care” reviews of treatment furnished to its insureds. Under its Procedure Statement 437-0077, Blue Cross institutes such a review upon its receipt of “a quality of care concern, identified as either a complaint or an adverse outcome,” which may be generated “externally” by an insured, practitioner or health care facility or “internally” by any department within Blue Cross or First Priority. (Blue Cross of NEPA Procedure Statement 437-0077, filed as docket entry no. 90, at pp. 1, 4). Blue Cross’s Quality Management Nurse Analyst (“Nurse Analyst”) is responsible for gathering the necessary information and preparing “a written detailed summary of the quality of care concern,” including “a delineation of all quality of care issues identified for the specific practitioner/facility for the last three (3) years.” (Id. at p.3).

The Nurse Analyst’s written summary is forwarded to Blue Cross’s Medical Director “for review, staging, and recommendation,” which “may include but are not limited to: refer to peer review process (please refer to Procedure Statement 437-0098), present immediately to the Credentialing Committee for action, require the practitioner/facility to submit a plan of corrective action to prevent further issues, assign a stage, or track and trend.” Blue Cross’s quality procedures recognize the following “staging” categories:

1. QMO: No quality concern evident or potential for adverse effects
2. QM1: A quality concern, which had a potential for or caused a minor effect on the [insured]
3. QM2: A quality concern, which had the potential for a significant adverse effect on the [insured] but did not result
4. QM3: A quality concern, which resulted in a significant adverse effect on the [insured]

(Id. at p. 4). A “Track and Trend” is defined as “[a]n adverse outcome that is not fully investigated (because of, but not limited to, a lack of information or an informal complaint) [and] is placed in the track and trend process.” (Id.). Pursuant to Section IV (D)(ll) of that procedure statement, any practitioner or facility “with a trend of three (3) or more of the same/similar staged QMO’s, QM1 ’s, or Track and Trend issues will be presented to the credentialing committee for further action at the time of recredentialing,” whereas a practitioner or facility “with one (1) QM2 or QM3 will be presented to the credentialing committee at the time of recredentialing, unless the issue is determined to be egregious by the chair of the credentialing committee,” in which event “it will then be presented at the time of occurrence.” {Id.).

Blue Cross Procedure Statement 437-0098 “describes the procedure of referring a quality of care concern file to a same or similar specialist for staging and peer review consensus.” (Docket entry no. 90, Blue Cross of NEPA Procedure Statement 437-00098 at p. 1). If “the medical director has determined [that] a need for same/similar specialist review is necessary,” Blue Cross retains an “external independent third party review organization... to perform [a] peer review.” (Id). Following that review, the “external third party review organization” prepares “peer review staging and recommendations,” which are reviewed by Blue Cross’s Medical Director who “makes the final determination of the staging.” (Id).

Once Blue Cross’s “staging” decision has been entered “into the appropriate quality management tracking logs and DOL database,” the nurse analyst forwards a letter “to the practitioner/facility involved in the [quality of care] concern with the outcome of the investigation, recommendations and request for a plan of corrective action, if applicable.” (Id. at p. 2). Blue Cross’s Policy Statement 437-0138, entitled “eisclosure of quality of care reviews, decisions and related information,” addresses the disclosure of its quality investigations, and provides that the “[r]esults of these activities/ investigations shall not be released to anyone but the practitioner/facility involved and to the credentialing committee.” (Docket entry no. 90, Blue Cross of NEPA Policy Statement 437-0138 at p. 1).

When Dr. Henzes was asked during his discovery deposition whether he had “given any statements to any insurance companies regarding what happened to Ann Marie Venosh,” he replied that he had provided a statement to “Blue Cross.” (Deposition testimony of Jack Henzes, M.D., on 7/18/12 at pp. 50-51, filed as docket entry no. 89). After Dr. Henzes’ counsel voiced his contention that Dr. Henzes’ statement to Blue Cross was “protected by peer review,” counsel for Venosh attempted to question Dr. Henzes “regarding the circumstances of that statement to be able to make a record as to whether it was peer review or not, and for any future potential [discovery] motions.” (Id. atpp. 51-52). Specifically, without asking Dr. Henzes to disclose the contents of his statement to Blue Cross, Venosh’s counsel inquired whether: (1) Dr. Henzes was “contacted by someone from Blue Cross regarding what happened to Ann Marie Venosh;” (2) Dr. Henzes was “asked by Blue Cross to write out what you recall happening to Ann Marie Venosh;” (3) Dr. Henzes was “told [by Blue Cross] that they were doing a peer review on Ann Marie Venosh;” (4) Dr. Henzes had “seen any reports prepared by Blue Cross...in connection with what happened to Ann Marie Venosh;” and (5) the statement that Dr. Henzes “gave to Blue Cross was a written, typed, or a taped recorded statement.” (Id. at pp. 52-53). On each occasion, Dr. Henzes’ counsel objected to those areas of preliminary inquiry and directed Dr. Henzes not to answer the questions posed. (Id). As a result, Venosh expressly “reserve[d] [her] right to redepose [Dr. Henzes] if that statement he gave, or any of the alleged materials that have been objected to as peer review, are later produced and contain information which may warrant a re-deposition.” (Id. at p. 54).

On August 21,2013, Venosh served a records subpoena upon Blue Cross seeking the production of its “investigative records” pertaining to “Venosh’s June 11, 2009 surgeries and hospitalization at Moses Taylor Hospital,” including any communication “sent [to] or received [from]...Moses Taylor Hospital, Dr. Jack Henzes, Dr. Michael Sunday” or any other health care provider. (Docket entry no. 81, exhibit A). In a letter dated August 23,2013, Blue Cross’s Privacy and security specialist advised Venosh that “[i]n order to process the subpoena...that you submitted to Blue Cross of Northeastern Pennsylvania,” Venosh was required to submit an “original copy” of another subpoena “with a raised seal made out to First Priority Health.” (Id., Exhibit B). Consequently, on September 4, 2013, Venosh forwarded a records subpoena to First Priority demanding production of the requested documents within twenty days. (Id., exhibit C).

On October 16,2013, Blue Cross informed Venosh that it had produced “all relevant and unprivileged documents,” and was withholding any investigative materials on the ground that they are “privileged documents and not subject to discovery” under of the Peer Review Protection Act (“PRPA”). (Docket entry no. 83, exhibit 2). Blue Cross further requested that Venosh immediately “withdraw the subpoena of September 4, 2013.” (Id.). By letter dated October 22, 2013, Venosh declined to withdraw her subpoena and instead demanded production of the requested documents. (Docket entry no. 66 at ¶ 9; docket entry no. 68 at ¶ 9).

On November 7, 2013, Blue Cross filed a “motion to quash” Venosh’s subpoena directed to First Priority, and requested the entry of “a protective order pursuant to Pa.R.C.P. 234.4(b) and 4012(a).” (Docket entry no. 66 at p. 5). In support of its motion, Blue Cross filed an affidavit from its Medical Director attesting that Blue Cross received “an internal quality review referral concerning the treatment of Ann Marie Venosh by one or all of the defendants in the above-captioned action,” as a result of which a “Peer Review process...was undertaken by [Blue Cross’s] quality review nurses and physicians concerning the medical treatment rendered to Ms. Venosh by the aforementioned providers.” (Docket entry no. 74, exhibit A at ¶ 4). The medical director further certified that Blue Cross’s “peer review process is conducted solely on behalf of the parent health plan [Blue Cross], and is conducted by [Blue Cross] nurses and physicians and not undertaken on behalf of any insuring entity or company, including First Priority Flealth or any other HMO.” (Id. at ¶3).

Special trial master Henry P. Burke issued an order on November 7,2013, denying Blue Cross’s motion to quash and directing the production of “all records requested in [Venosh’s] subpoena within ten (10) days of the date of this order.” (Docket entry no. 67). However, on December 5, 2013, Master Burke vacated that discovery order, and on January 6, 2014, granted Blue Cross’s motion to quash Venosh’s subpoena, finding that Venosh was “prohibited from seeking information and/or documents referenced in that subpoena from Blue Cross of Northeastern Pennsylvania or its affiliate First Priority Health.” (Docket entry nos. 72, 75). On January 16, 2014, Venosh filed a timely de novo appeal of the master’s order of January 6, 2014. (Docket entry no. 77).

Venosh contends that the analysis of Dr. Henzes’ care was conducted by First Priority, not Blue Cross, as a result of which that review is not protected by the PRPA since an IPA model HMO is not a “professional health care provider” or an administrator of a health care facility so as to be covered by the confidentiality provisions of the PRPA. (Docket entry no. 81 at pp. 6-7). Alternatively, in the event that it is determined that the investigation in question was performed by Blue Cross, Venosh posits that the PRPA is nonetheless inapplicable inasmuch as “the review was conducted by First Priority/Blue Cross for their business purposes arising out of their contract of insurance with [Venosh],” rather than “for the purpose of improving the quality of medical care.” (Id. at p. 14). Venosh submits that “by withholding its investigation of Ms. Venosh’s care, her insurer is breaching its fiduciary duty to her and undermining her search for the truth about what happened to her.” (Docket entry no. 87 at p. 4).

In its responsive brief, Blue Cross maintains that it initiated an investigation of “Ms. Venosh’s care in response to an internal quality review referral concerning the treatment she had received by one or all of the defendants in this action,” and that the review “process is conducted solely by [Blue Cross] nurses and physicians on behalf [Blue Cross].” (Docket entry no. 83 at p. 4). However, in his affidavit that was submitted after the oral argument of counsel on July 14,2014, Blue Cross’s Medical Director verified that Blue Cross also hired a third party “board-certified orthopedic surgeon to conduct the initial evaluation of Ms. Venosh’s quality of care,” and that “the orthopedic surgeon submitted a report of his evaluation to [Blue Cross’s] Medical Director and to the Nurse Analyst.” (Docket entry no. 91 at ¶¶ 7-8). During oral argument, counsel for Blue Cross indicated that to his knowledge, the findings of Blue Cross’s investigation “were kept within Blue Cross of Northeastern Pennsylvania” and were never communicated to Venosh, Dr. Henzes, Moses Taylor or any other defendant. (Transcript of proceedings (“T.P.”) on 7/14/14 at pp. 21-24). In his post-argument affidavit dated July 17, 2014, Blue Cross’s Medical Director attests that although the third party orthopedic surgeon’s “report itself was not shared with anyone outside [Blue Cross], a summary of the findings was communicated by letter to Ms. Venosh’s providers.” (Docket entry no. 91 at ¶ 10).

Since the PRPA defines a “review organization” as including “a hospital plan corporation review committee,” Blue Cross contends that its records are immune from discovery under that Act due to the fact that “the entity that performed the peer review was [Blue Cross], which is a hospital plan corporation and which is not an IPA-HMO.” (Docket entry no. 83 at p. 10). Blue Cross states that “[t]he stakes in this appeal are extremely high,” and argues that if it is required to produce its “investigatory materials, then insurance companies throughout the state of Pennsylvania will be hesitant to avail themselves of the peer review process, and the quality of medical care in this state will accordingly suffer.” (Id. at pp. 2-3, 17).

Oral argument on Venosh’s discovery appeal was conducted on July 14, 2014, and in compliance with our post-argument orders, Blue Cross filed various procedure statements and policy statements on July 18, 2014, and August 7,2014. Venosh’s appeal is now ripe for disposition.

II. DISCUSSION

(A) STANDARD OF REVIEW

Under Pa.R.C.P. 4003.1, “discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” Berg v. Nationwide Mut. Ins. Co.. Inc., 44 A.3d 1164, 1178 n. 8 (Pa. Super. 2012), app. denied, 619 Pa. 719, 65 A.3d 412 (2013). As the entity asserting a peer review privilege under the PRPA, Blue Cross has the “burden to establish that any requested documents are shielded from discovery by the Act.” Joe v. Prison Health Services. Inc., 72 A.2d 24, 33 (Pa. Cmwlth. 2001). Generally, “Pennsylvania law does not favor evidentiary privileges,” In re L. F., 995 A.2d 356, 360 (Pa. Super. 2010), app. denied, 608 Pa. 641, 9 A.3d 630 (2010), and all doubts regarding the discoverability of information or documents “should be resolved in favor of permitting discovery.” Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1025 (Pa. Cmwlth. 2006); McAndrew v. Donegal Mut. Ins. Co., 56 Pa. D. & C. 4th 1, 7 (Lacka. Co. 2002).

(B) PEER REVIEW PROTECTION ACT

The PRPA grants qualified immunity to health care providers who participate in a peer review evaluation of health care services furnished by other professional health care providers, and establishes an evidentiary privilege applicable to peer review proceedings and records. Venosh v. Henzes, 2013 WL 3725157, at * 5 (Lacka. Co. 2013), aff’d, No. 1498 MDA 2013 (Pa. Super. July 11, 2014). Section 425.4 of the act states that “[t]he proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery... in any civil action against a professional health care provider arising out the matters which are the subject of evaluation and review by such committee....” 63 P.S. § 425.4. Section 425.2 of the PRPA defines a “review organization” as “any committee engaging in peer review, including...a health insurance review committee [and], a hospital plan corporation review committee,” and further states that the phrase “peer review” means “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers....” 63 P.S. § 425.2.

The PRPA “was promulgated to serve the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public.” Troescher v. Grody, 869 A.2d 1014, 1020-1021 (Pa. Super. 2005). The act “represents a determination by the legislature that, because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.” Dodson v. Deleo, 872 A.2d 1237, 1242 (Pa. Super. 2005) (quoting Young v. The Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa. Super. 1998)); Joe, 782 A.2d at 32. The confidentiality provisions of the PRPA facilitate “comprehensive, honest, and potentially critical evaluations of medical providers by their peers in the profession.” Piroli v. Lodico. 909 A.2d 846, 850 (Pa. Super. 2006). Without the confidentiality protection afforded by the PRPA, “the ability of the profession to police itself effectively would be severely compromised.” Piroli, supra; Joe, supra; Young, supra.

For the discovery protections of the PRPA to apply, the peer review materials must be the “records of a review committee” which are being sought in a “civil action against a professional health care provider” based upon matters that were the subjects of the peer review evaluation. See Haves v. Mercy Health Corporation, 559 Pa. 21, 29, 739 A.2d 114, 118(1999) (stating that the intent of the legislature in adopting the PRPA “was to prevent the disclosure of peer review information to outside parties seeking to hold professional health care providers liable for negligence, while at the same time insuring that such guarantee of confidentiality did not operate to shield from discovery those rare instances in which the peer review process was misused.”). To constitute a “review organization” under the act, the committee must be engaged “in peer review,” which, by definition, refers to “the procedure for evaluation by professional health care providers” of the quality of care furnished by other professional health care providers. See 63 P.S. § 425.2. In relevant part, Section 425.2 of the PRPA defines a “professional health care provider” as “individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to,” a physician, dentist, podiatrist, chiropractor, optometrist, psychologist, pharmacist, registered or practical nurse, physical therapist, administrator of a hospital, nursing or convalescent home or other health care facility, or a “corporation or other organization operating a hospital, nursing or convalescent home or other health care facility.” 63 P.S. § 425.2.

Venosh maintains that First Priority and Blue Cross may not invoke the discovery protections of the PRPA since neither organization qualifies as a “professional health care provider” under the act which limits its confidentiality provisions to peer reviews undertaken “by professional health care providers.” First Priority and Blue Cross contend that the investigation was conducted solely by Blue Cross, which, as “a hospital plan corporation,” constitutes a “review organization” that may perform protected peer reviews under the PRPA. First Priority and Blue Cross further submit that they have satisfied the “professional health care provider” criterion since the review of the defendants’ care was carried out by health care providers employed or retained by Blue Cross. (Docket entry no. 83 at pp. 9-10).

(C) FIRST PRIORITY IPA-HMO

Venoshfirst argues that Blue Cross’s conduct inresponse to her subpoena of August 21, 2013, establishes that the investigation in question was actually performed by First Priority. Venosh notes that upon receipt of her subpoena, Blue Cross informed her that her records request could only be considered if she submitted a subpoena “with a raised seal made out to First Priority Healths (See Letter dated 8/26/13 from Renee Budzilek to Komblau, Kornblau & Solomon, filed as docket entry no. 81, exhibit B) (emphasis in original letter). In that regard, it also bears noting that the motion to quash that Blue Cross presented to the special trial master only sought “an order quashing the subpoena directed by Ms. Venosh to First Priority Life.” (Id., exhibit D atpp. 1, 5).

It is undisputed that First Priority is an IPA model HMO. (Docket entry no. 74 at p. 1). If the “quality of care” review in dispute was conducted by First Priority, it is not insulated from discovery under the applicable case law. In McClellan v. Health Maintenance Organization of PA, 546 Pa. 463, 686 A.2d 801 (1996) (Per Newman, L, with one justice concurring and one justice concurring in the result), the plaintiff in a professional negligence action against an HMO sought to discover any investigations that the HMO had conducted of the decedent’s treating physician who allegedly failed to timely diagnose the decedent’s malignant melanoma. Id. at 468-469 & n. 4, 686 A.2d at 803-804 & n. 4. The HMO objected to that discovery based upon the PRPA’s confidentiality provision which “protects a ‘professional health care provider’ from compelled disclosure of proceedings and records of a peer review committee during discovery in a civil action.” Id. at 469, 686 A.2d at 804. Per the language of the act, the HMO’s peer review would be shielded from discovery only if the HMO was deemed a “professional health care provider” under the PRPA so as to be capable of performing a protected peer review. Id. at 471, 686 A.2d at 805 (“Therefore, HMO PA will enjoy protection from discovery in this instance only if it falls within the act’s definition of that term.”).

Finding the definition of “professional health care provider” in the PRPA to be ambiguous, the Supreme Court of Pennsylvania ascertained the intention of the general assembly in enacting the PRPA, Id at 471-472, 686 A.2d at 805, and reasoned:

Concerning the language at issue, of the eleven listed terms included in the statute’s definition of professional health care provider, nine are titles of individual health care workers. The remaining two are an administrator, and a corporation or other organization operating or administering a “hospital, a nursing or convalescent home, or other health care facility.” 63 P.S. § 425.2. Clearly, the list of health care providers set forth in section 425.2 includes only (1) immediate or direct health care practitioners, and (2) administrators of medical facilities, be they individuals or organizations. HMO PA is apparently not a direct health care provider. It may enjoy the protection of the act, then, only if it may be regarded as an administrator of a medical facility.

Id. at 473, 686 A.2d at 806. Noting that “an IPA model HMO, by definition, operates without a central health care facility” and “has no facilities or equipment and thus cannot oversee patient care within its walls,” Id. at 474, 686 A.2d at 806, the McClellan Court concluded:

Because an IPA model HMO is neither a direct health care practitioner, nor the administrator of a health care facility, we must conclude that the legislature did not intend that IPA model HMOs be embraced by the confidentiality protections of the act. The legislature has defined its purpose only to the extent that it extended a confidentiality privilege to those categories of groups enumerated in Section 425.2 of the act. We agree with the accurate conclusion of the [Superior] Court that if HMO PA desires coverage by the act, it should direct its argument to the general assembly.

Id. at 474-475, 686 A.2d at 807.

In Henderson v. Biwojno, 47 Pa. D. & C. 4th 322 (Alleg. Co. 2000), the trial court extended the holding in McClellan to malpractice cases in which the IPA model HMO is not a named defendant. The plaintiff in Henderson received “health benefits from her employer through Keystone Health Plan,” and “wrote a four-page letter...to Keystone complaining about the treatment provided by [her network physician] Dr. Avolio.” Id. at 324-325. “Upon receipt of this letter, Keystone requested plaintiff’s medical records from her treating physician” and “arranged for two physicians to review the records and provide comments to Keystone on the quality of care provided by Dr. Avolio.” Id. at 325. Keystone later forwarded a letter to plaintiff “which stated that ‘your information was referred to clinical quality improvement for review,”’ and that “’[a]s a health care plan, we are required to analyze complaints made against our network providers to determine if quality problems exist.’” Id.

In her subsequent medical malpractice action against her treating physicians, the plaintiff in Henderson sought “to obtain the evaluations of the care furnished by Dr. Avolio,” and “Keystone contended] that this information [wa]s protected from discovery by the Pennsylvania Peer Review Protection Act.” Id. “Keystone not[ed] that the definition of ‘review organization’ in section 425.2 includes a ‘health insurance review committee,”’ and argued that its review committee had performed a protected “peer review” since the evaluation had been conducted by two “professional health care providers.” Id. at 326, 331 & n. 2. In summarizing the statutory construction issue presented, Judge R. Stanton Wettick stated: “in a civil action against a health care provider, Section 425.4 protects only evaluations conducted by a review committee; section 425.2 defines a ‘review organization’ as a committee engaged in peer review; and section 425.2 defines ‘peer review’ as the procedure for evaluation by professional health care providers.” Id. at 330.

In rejecting the HMO’s assertion that its “quality of care” review qualified as protected peer review since the investigation was conducted by two physicians, the Henderson court concluded:

While Keystone arranged for professional health care providers to conduct the evaluation of the quality and efficiency of services performed by Dr. Avolio, this was an evaluation by Keystone. Consequently, the controlling issue is whether an evaluation by Keystone is an evaluation by a professional health care provider.

Id. at 326. Declaring that “[t]he ruling of the Superior Court in McClellan that IPA model HMOs are not professional health care providers continues to be the controlling authority,” judge Wetticlc held that “the Peer Review Protection Act does not apply.” Id. at 331. As a result, Keystone’s motion to quash the plaintiff’s discovery of its quality assurance review was denied. Id. at 332.

Assuming arguendo that the “quality of care” review was conducted by First Priority, it is clearly not protected from discovery by the PRPA. Since First Priority is not a direct health care provider, nor an administrator of a health care facility, it is not a “professional health care provider” which may perform protected peer reviews under the PRPA. See McClellan, 546 Pa. at 474-475, 686 A.2d at 807. The fact that a physician, nurse and orthopedic surgeon conducted the “quality of care” review and “peer review” is of no consequence since the organization itself which undertakes the peer review must be a “professional health care provider” to enjoy discovery protection under the Act. See Henderson, 47 Pa. D. & C. 4th at 326. Accordingly, any peer review that was undertaken by First Priority of the treatment furnished by Venosh’s health care providers is not shielded from discovery by the PRPA.

(D) BLUE CROSS OF NORTHEASTERN PENNSYLVANIA

Blue Cross contends that Venosh’s discovery appeal improperly “tries to conflate [Blue Cross] with First Priority,” and in rebuttal, argues “that the peer review was actually conducted by [Blue Cross] which, as a hospital plan corporation, is expressly protected by the act.” (Docket entry no. 83 at p. 11). Blue Cross asserts that under Section 425.4 of the PRPA, once it established (a) that the peer review was conducted by a “review committee,” and (b) that discovery of that peer review material is being sought in a “civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee,” Blue Cross’s “Quality of Care” review of Dr. Henzes’ treatment became immune from discovery. (Id. at p. 12).

Although the act includes “a health insurance review committee” and “a hospital plan corporation review committee” in its definition of a “review organization,” it requires that “review organization” to be “engag[ed] in peer review” in order to fall within the confidentiality provisions of that statute. See 63 P.S. § 425.2. The same definitional section defines “peer review” as the procedure for quality evaluation by “professional health care providers,” which are described as including the nine identified categories of health care workers, as well as administrators and corporate operators of hospitals, nursing or convalescence homes, or other health care facilities. Id. Section 425.2 of the PRPA does not include a health insurance company or a hospital plan corporation among the organizations who are licensed “to practice or operate in the health care field” and thereby constitute “professional health care providers” under the act. See Independent Oil and Gas Association of Pennsylvania v. Board of Assessment Appeals of Fayette County, 572 Pa. 240, 247-248, 814 A.2d 184 (2002) (under the statutory construction doctrine of inclusio unius est exclusio alterius, the inclusion of specific items in a statute implies the exclusion of other matters not so included); McClellan, 546 Pa. at 472-473, 686 A.2d at 805-806 (“It is widely accepted that general expressions such as ‘including, but not limited to’ that precede a specific list of included items should not be construed in their widest context, but apply only to persons or things of the same general kind or class as those specifically mentioned in the list of examples, [citation omitted]. Under our statutory construction doctrine ejusdem generis (‘of the same kind or class’), where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.”).

The McClellan holdings confirm that the discovery protections contained in the PRPA apply only to direct health care practitioners and administrators or operators of health care facilities, McClellan, 546 Pa. at 473-475, 686 A.2d at 806-807, and do not shield peer reviews that are performed by entities that “do not operate their own facilities, but merely act as insurers or quasi-insurers.” McClellan, 442 Pa. Super., at 513-514, 660 A.2d at 101-102. A hospital plan corporation or health insurer cannot transform itself into a “professional health care provider” under section 425.2 of the act by simply hiring or utilizing a doctor or nurse to conduct the actual peer review. See Henderson, 47 Pa. D. & C. 4th at 326. The Supreme Court in McClellan declared that if a non-health care provider such as an IPA model HMO wishes to be covered by the peer review protection provisions of the act, “it should direct its argument to the general assembly.” McClellan, 546 Pa. at 475, 686 A.2d at 807. During the ensuing eighteen years since McClellan, the general assembly has not amended the PRPA to extend its confidentially provisions to peer reviews instituted by organizations or corporations that do not provide direct health care or operate health care facilities. Thus, in its current form, the PRPA does not protect quality reviews or peer reviews that are undertaken by hospital plan corporations which do not function as “professional health care providers.” Cf. Fanelli v. Independence Blue Cross, 75 D. & C. 4th 10, 17 (Phila. Co. 2005) (in physician’s action challenging health insurer’s decision not to reinstate him as a credentialed member of the Independence Blue Cross physician network, PRPA did not protect from discovery the Credentialing Committee’s deliberations by six “credentialed providers within the [Blue Cross] network who are actively engaged in patient care,” since the act’s definition of a professional health care provider “demonstrates that it applies to those who provide health care directly, or administer or operate a health care facility.”).

The Geisinger Health System apparently recognizes that fact and has peer reviews of its Health Plan’s medical and dental providers initiated and conducted by the health care provider arm of its integrated health services organization. The Geisinger System is comprised of health care facilities and clinics, Geisinger System Services which employs management and other personnel who provide services to entities in the Geisinger System, the Geisinger Health Plan, the Geisinger Foundation, and two professional liability trusts. See Geisinger Health Plan v. Commissioner of Internal Revenue Service, 30 F.3d 494, 496 (3d Cir. 1994). In the Geisinger System, the Geisinger medical centers and clinics are “contractually obligated to provide credentials and quality assurance review of Geisinger Health Plan physicians and dentists, including those not affiliated with the Geisinger System of healthcare,” and are “charged with the responsibility to review any reports of information which raise questions regarding the professional competence of any physician or dentist.” Babb v. Centre Community Hospital, 47 A.3d 1214, 1217 n. 2 (Pa. Super. 2012), app. denied, 619 Pa. 719, 65 A.3d 412 (2013). Consequently, Geisinger’s peer reviews of its Health Plan network physicians and dentists are undertaken by an organization that is “approved, licensed or otherwise regulated to practice or operate in the health care field,” and as a result, those reviews should be protected by the PRPA since they are commenced and completed by a “professional health care provider,” as per the definition of that phrase in 63 P.S. § 425.2.

The PRPA represents a legislative determination that the health care profession, not the health insurance industry, “is in the best position to police its own activities.” See Dodson, 872 A.2d at 1242 (quoting Young, 722 A.2d at 156). While it is laudable that Blue Cross conducts peer reviews of the quality and efficiency of the treatment that health care professionals and facilities provide to its subscribers, only those peer reviews which are undertaken by a “professional health care provider” are immune from discovery under the act. Since Blue Cross is not a direct health care practitioner or an administrator or operator of a health care facility, it has not satisfied its burden of establishing that its “quality of care” reviews and peer reviews are protected from discovery by 63 P.S. § 425.4. Accordingly, Blue Cross and First Priority must comply with Venosh’s records subpoenas, and Venosh’s de novo appeal of the special trial master’s discoveiy order will thereafter be granted.

ORDER

And now, this 8th day of August, 2014, upon consideration of “plaintiff’s appeal of special trial master’s order of January 6, 2014,” the exhibits and memoranda of law submitted by the parties, the oral argument of counsel, and the post-argument submissions by counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. The de novo discovery appeal filed by plaintiff, Ann Marie Venosh, pursuant to Lacka. Co. R.C.P. 4000.1 is granted;

2. The special trial master’s order of January 6, 2014, granting the motion to quash filed by Blue Cross of Northeastern Pennsylvania is reversed; and

3. Within the next thirty (30) days, Blue Cross of Northeastern Pennsylvania and First Priority Health IPA-HMO shall comply with the records subpoenas served upon them by producing the “quality of care” review materials and “peer review” records within their possession regarding the care and treatment that plaintiff received from any of the defendants.

      . Section IV(D)(11) of Procedure Statement 437-0077 varies slightly from Section IV(I) of Procedure Statement 437-0098 regulating the referral of a “quality of care” concern for “peer review consensus.” Section IV(I) of the latter procedure provides for the automatic presentation of any practitioner or facility “with a trend of three (3) or more of the same/similar staged QM1 ‘s...to the Credentialing Committee for further action.” (Procedure Statement 437-0098 at p. 2). Unlike Procedure Statement 437-0077 which authorizes the presentation of one QM2 or QM3 “at the time of occurrence” if the issue is deemed “egregious by the Chair of the Credentialing Committee,” Policy Statement 437-0138 states that a practitioner or facility “with one (1) QM2 or QM3 will be presented to the Credentialing Committee either at the time of the occurrence or when the specific practitioner/ facility is being recredentialed (this is at the discretion of the Medical Director).” (Id). Although Procedure Statement 437-0077 also requires any practitioner or facility with a trend of three or more of the same/ similar staged QMO’s or Track and Trend issues to be “presented to the Credentialing Committee for further action at the time of recredentialing,” Section IV(I) of Procedure Statement 437-0098 simply states that “[a] II QMO and Track and Trend issues will be reviewed at the end of the reporting year (at the discretion of the Medical Director, these may also be presented to the Credentialing Committee for further action).” (Id.).

      Procedure Statement 437-0113 governs “Recredentialing of Practitioners” and “describe[s] the policy associated with verifying that Practitioners continue to meet all criteria for continuing participation in the First Priority Health (FPH) network as outlined in the respective Practitioners agreements.” (Docket entry no. 93 at p. 1). That policy statement states that “FPH shall recredential all physicians and other licensed independent practitioners,” and is required to “complete a thorough Recredentialing review of all Practitioners at least every 36 months.” (Id. at pp. 1-2). First Priority’s “Quality Management Department” must include in the Practitioners’ “profile for review” any “member complaints and grievances/quality of care concerns and interventions as appropriate/adverse event information and follow-up.” (Id. at p. 5). Policy Statement 437-0115 addresses the “Recredentialing of Organizational Providers,” and sets forth “the policy associated with verifying that the Organizational Provider continues to meet all criteria for continuing participation in the network as outlined in the respective Organizational Provider agreements.” (Docket entry no. 94 at p. 1). Policy Statement 437-0115 charges “the plan” with the responsibility to “reevaluate Organizational Providers,” but unlike Policy Statement 437-0113, does not expressly require review or consideration of member complaints or quality of care concerns and interventions. (Id. atpp. 1-5).

      . In King v. Stefenelli, 862 A.2d 666 (Pa. Super. 2004), the testimony of a pathologist, which made reference to his participation in a peer review conference at the hospital following the patient’s death, was found to be properly admitted in a medical malpractice suit since the pathologist’s testimony “did not detail the evidence, findings, recommendations, evaluations or opinions undertaken in any peer review proceeding.” Id. at 673. Dr. Henzes was never asked to reveal the findings or conclusions of Blue Cross’s investigation, or to detail the evidence that was reviewed by Blue Cross during its quality assurance review. Instead, he was merely questioned whether he was contacted by Blue Cross, was advised by Blue Cross that they were conducting a peer review, had reviewed any investigative reports prepared by Blue Cross, or had furnished a written or recorded statement to Blue Cross. None of those foundational inquiries required Dr. Henzes to divulge the results of Blue Cross’s investigation or the specific evidence which Blue Cross had reviewed.

      . Under Lacka. Co. R.C.P. 4000.1, discovery motions must initially be presented to and decided by the court-appointed Special Trial Master whose ruling “may be appealed de novo” to the court of common pleas within ten days of the master’s decision. Sandvik, Inc. v. Mecca C. & S, Inc., 2014 WL 2134392, at * 3 (Lacka. Co. 2014).

      . In Venosh, we held that two incident reports that were prepared by Moses Taylor were not protected from discovery by the PRPA, Section 311 of the Medical Care Availability and Reduction of Error (“MCare”) Act, 40 P.S. § 1303.311, or Section 299b-22 of the federal Patient Safety Quality Improvement Act of 2005 (“PSQIA”), 42 U.S.C. § 299b-22. Venosh, supra, at *6-12. After we certified our decision for an interlocutory appeal pursuant to 42 Pa.C.S.A. § 702(b) and Pa.R.A.P. 1311, see Venosh v. Henzes, 2013 WL 5701655 (Lacka. Co. 2013), the Superior Court of Pennsylvania affirmed that discovery ruling in Venosh v. Henzes, No. 1498 MDA 2013 (Pa. Super. July 11, 2014).

        . The Superior Court similarly determined that peer reviews performed by IPA model HMOs are not protected from discovery by the PRPA since such HMOs “do not operate their own facilities, but merely act as insurers or quasi-insurers....” McClellan v. Health Maintenance Organization of PA, 442 Pa. Super. 504, 513-514, 660 A.2d 97, 101-102 (1995), aff’d, 546 Pa. 463, 686 A.2d 801 (1996).


source: Caselaw Access Project

author: TUCKER, J.,

license: Public Domain

text:
    Crawley v. Care Pavilion of Walnut Park

      Zachary C. Glaser and Edward Thomas Butkovitz, for appellant.

      Rhonda Hill Wilson, for appellees.
    Aug. 12, 2014—
   TUCKER, J.,

I. Procedural History

This matter is on appeal before the Superior Court of Pennsylvania from this court’s order granting a motion for a new trial filed by Rebecca Crawley and Henry Perkins (hereinafter referred to as “appellees”), co-administrators of the estate of Julia May Dizzley. Order entered by J. Tucker (04/11/2014). This matter was remanded to this court from the Supreme Court of Pennsylvania for reconsideration in light of Scampone v. Highland Park Care Ctr., LLC., 57 A.3d 582 (Pa. 2012), on the issue of corporate negligence.

Appellees commenced this action by filing a complaint on April 4,2006, alleging negligence against Care Pavilion ofWalnutPark(hereinafterreferredto as appellant). Compl. (04/04/2006). A trial proceeded in this court before the late Honorable Joseph A. Dych on May 12, 2008. Prior to the commencement of trial, the court precluded appellees from proceeding on a theory of corporate negligence. Trial opinion at 4, docketed (10/31/2008). Also, the court denied appellees’ motion to amend complaint to restore a negligence per se claim. Id. A jury verdict for appellant was entered on May 20, 2008 with a finding that appellant herein was negligent, but that its negligence was not the factual cause of the decedent’s injuries. Appellees filed a motion for post-trial relief which was denied. Order entered by J. Dych (08/25/2008), docketed (08/26/2008). Appellees appealed to the Superior Court of Pennsylvania and, pursuant to Pa.R.A.P. 1925(b), filed a concise statement of matters complained of on appeal on September 17, 2008. The Superior Court summarized appellees’ matters complained of on appeal:

(1) refusal to permit the emendation of their fourth amended complaint; (2) dismissal of their claim of negligence per se; (3) dismissal of their corporate negligence claims; (4) decisions regarding certain discovery issues; (5) refusal to allow the juiy to be questioned on the topic of tort reform; and (6) exclusion of certain evidence.

Superior Court Memorandum (07/02/2009). Upon consideration of the matters complained of, the Superior Court affirmed judgment in favor of appellant. Id. Appellees filed an appeal to the Supreme Court of Pennsylvania which vacated the Superior Court’s holding and remanded to this court for reconsideration in light of Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012). Supreme Court judgment entered 04/17/2013.

On January 7, 2014, the honorable Lisa M. Rau of this court ordered parties’ counsel to write briefs addressing the Supreme Court of Pennsylvania’s remand of the case, and the parties complied. Order entered by J. Rau (01/07/2014), docketed (01/08/2014); defendant brief (03/07/2014); plaintiff brief and motion for new trial (03/10/2014); defendant reply brief (mot/pet) (03/28/2014); plaintiff sur reply (04/07/2014). Judge Leon W. Tucker was assigned this matter on April 9, 2014. Upon consideration of the parties’ briefs, this court granted appellees’ motion for a new trial. Order entered by J. Tucker (04/11/2014).

Appellant appealed the court’s order granting the motion for new trial on May 7, 2014. Appeal to Superior Court (05/07/2014). The court ordered appellant to file a statement of matters complained of on appeal pursuant to the Pennsylvania Rules of Appellant Procedure (“1925(b) statement”). Order entered by J. Tucker (05/07/2014). Appellant filed a timely 1925(b) statement on May 28, 2014 raising the following issues, in pertinent part, on appeal:

1. The trial court erred in granting plaintiffs’ motion for new trial where the original trial court acted consistent with Scampone v. Highland Park Care Ctr., LLC., 57 A.3d 582 (Pa. 2012).
2. The trial court erred in granting plaintiffs’ motion for new trial where any error by the original trial court in concerning plaintiffs’ corporate negligence claim was harmless.
3. The trial court erred in granting plaintiffs’ motion for new trial where plaintiffs failed to show they attempted to offer relevant evidence allegedly excluded by the original trial court and further failed to show that they made offer of proof concerning this evidence.
4. The trial court erred in granting plaintiffs’ motion for new trial where the motion permits a new trial on the issue of negligence per se.

II. Facts

Appellees allege the decedent, Julia May Dizzley, was a resident of appellant’s nursing home from January 8, 2003 until April 10, 2004. Plaintiff brief and motion for new trial at 5. The decedent was allegedly determined incontinent, at risk for falls, and ambulated with the help of a cane. Id.

Appellees allege the decedent fell and suffered serious injury as a result of appellant’s lack of nursing staff and assistive devices. Id. Further, appellees allege a systematic failure of care contributed to the fall. Id. at 6.

Following the fall, decedent was admitted to the emergency room and underwent two surgeries. Id. Appellees allege the decedent suffered cardiac arrest and anoxic encephalopathy as a result of trauma from her fall and anesthesia from her surgery. Id. The decedent passed away at a rehabilitation center on August 24,2004; appellees allege the decedent died as a result of injuries suffered from her fall pursuant to a death certificate prepared by the Delaware County Medical Examiner. Id.

III. Legal Analysis

Pennsylvania Rule of Appellate Procedure 341(c) discusses the finality requirement of orders which may be appealed. However, under Pennsylvania Rule of Appellate Procedure 311, an interlocutory appeal may be taken from an order granting a new trial. Therefore, appellant’s appeal is properly taken. However, as discussed below, appellant’s arguments on the topic of corporate negligence are without merit based upon the briefs and motions filed. Defendant brief (03/07/2014); plaintiff brief and motion for new trial (03/10/2014); defendant reply brief (mot/pet) (03/28/2014); plaintiff sur reply (04/07/2014). As discussed below, this court agrees with appellant’s argument on the issue of negligence per se.

On remand, the trial court must proceed in accordance with the order of the appellate court. Pa.R.A.P. Rule 2591. A trial court may grant a motion for new trial upon consideration of a written motion which details the grounds for the motion and how the grounds were preserved before or at trial. Pa.R.C.P. No. 227.1. In considering a motion for new trial, the trial court must follow a two step process. Hall v. Jackson, 788 A.2d 390, 397-98 (Pa. Super. 2001). The court must first consider whether a factual, discretionary, or legal mistake was made; if such a mistake was made, the court must then determine if there are sufficient grounds for a new trial. Id. at 398.

A. This Court properly granted the Motion for New Trial upon consideration of the record in light of the Supreme Court of Pennsylvania’s remand instructions.

Appellant claims this court erred in granting a new trial upon consideration in light of Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012). 1925(b) Statement ¶ 1. In a recent case involving a claim of corporate negligence against a nursing home, the Superior Court of Pennsylvania gave a detailed explanation of the evolution of the duty a skilled nursing facility owes to its patients. Sokolsky v. Eidelman, 93 A.3d 858, 868-871 (Pa. Super. 2014). In 1984, the Supreme Court of Pennsylvania found a hospital owed emergency room patients a duty set forth in the Restatement (Second) of Torts, § 323 (1965). Id. at 868-869 (citing Riddle Mem ’l Hosp. v. Dohan 475 A.2d 1314 (1984). In 1991, the Supreme Court expanded Riddle when it adopted the doctrine of corporate negligence or corporate liability in Thompson v. Nason Hosp. 591 A.2d 703. Id. The Supreme Court defined the newly adopted doctrine as follows:

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.

Id. at 869 (citing Thompson, 591 A.2d at 707). Following Thompson, the Superior Court of Pennsylvania expanded the theory of corporate negligence to other health care entities using four factors set out in Thompson:

“(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.”

Id. (citing Thompson, 591 A.2d at 707-708).

Not until 2012 did the Supreme Court determine whether nursing facilities owed the same nondelegable duty as hospitals and other health care entities. Id. (referring to Scampone, 57 A.3d 582, 586). Scampone effectively permits a claim of corporate negligence against nursing-care centers and affiliated entities where the resident-entity relationship establishes a duty of care owed to the resident. 57 A.3d at 583-84. The Supreme Court of Pennsylvania affirmed the Superior Court’s denial of a nonsuit on the issue of corporate negligence and remanded for proceedings to determine whether legal duties or obligations were owed by nursing-care centers to the plaintiff with a trial to follow dependent on the outcome of the inquiry. Id. at 607. To determine whether a duty of care exists, the trial court should apply either section 323 of the Restatement (Second) of Torts or the factors discussed in Althaus v. Cohen, 756 A.2d 1166 (2000). Id.

Upon review of Scampone, the Superior Court of Pennsylvania recently held that an analysis of the Althaus factors is imperative before extending corporate liability. Sokolsky, 93 A.3d at 870 (internal citations omitted). The Althaus factors, as quoted in Sokolsky are:

(1) [T]he relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and forseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.

Id. (citing Althaus, 756 A.2d at 1167; see also Scampone, 57 A.3d at 607). The Sokolsky court considered whether appellant produced enough evidence for a corporate negligence claim. Id. at 870-71. Upon review, the appellate court found no record of the trial court’s application of the Althaus factors or section 323 of the Restatement (Second) of Torts. Id. Instead, the trial court dismissed the claim for lack of breach and causation upon citation to the four duties discussed in Thompson, 591 A.2d 703. Id. It was this mistake the appellate court found to be an error of law warranting a remand for reconsideration of whether appellant was owed any legal duties or obligations by the skilled nursing facility with a trial to follow dependent on the outcome of the inquiry. Id. (citing Scampone, 57 A.3d at 606-607).

Here, appellant first argues a corporate negligence claim was pursued and considered by the jury in the original trial court. 1925(b) Statement ¶1. If the original trial court committed any errors in regard to the claim, appellant believes the errors were harmless. Id. at 2.

Appellees provided clear examples from the record which show the issue of corporate negligence was particularly excluded by the original trial court and not properly submitted to the jury, if at all. The following excerpts were statements of the original trial court which offer proof of the patent disregard of the corporate negligence issue:

“Well, I disagree with you, don’t think it is a corporate negligence case.” Plaintiff brief and motion for new trial at 7 (errors in original) (emphasis added).
“A corporation is also to the extent that it can be shown that some policy or procedure that they put into effect or didn’t do, was a substantial factor is negligence, that would be true if you fell in a hotel room. You don’t need to bring that into a medical case, all right... So I don’t think it’s a relevant issue as to whether or not its corporate negligence.” Id. (errors in original) (emphasis added).
“Fine. Again I’m ruling it is not a corporate negligence case. I know of no cases extending this doctrine to nursing homes under this circumstances that are essentially custodial care. I’m ruling that it’s a negligence case and I’m ruling that the only relevant evidence that can come in, has to do with negligence in the care of Mrs. Dizzley or people similarly situated.” Id. at 8 (errors in original) (emphasis added).

Further, the original trial court clarified its understanding of corporate negligence in its opinion docketed October 31,2008,

I ruled that plaintiffs claim of corporate negligence was inapplicable on the facts of this case and that evidence of Care Pavilion’s deficiencies in policies, practices and procedures and of its violations of state regulations was admissible only when ‘directly relate[d] to the fall that day.

Trial opinion by Dych J. at 4 (citing N.T., 05/12/2008, at 16-22, 32-36). The original trial court did not have the benefit of reviewing the Scampone decision as it was decided well after the trial. As the Scampone Court stated, and as the Superior Court of Pennsylvania recently clarified, when considering a corporate negligence claim, “the trial court must apply section 323 of the Restatement (Second) of Torts or the Althaus factors in order to determine if a duty of care exists.” Sokolsky v. Eidelman, 93 A.3d at 870 (citing Scampone, 57 A.3d at 606-607).

Reviewing the record, this court found no such application of the Althaus factors or section 323 of the Restatement (Second) of Torts by the original trial court. The Sokolsky Court declared the mishandling of a corporate negligence claim as an error of law which was grounds for reconsideration in light of the Althaus factors or section 323 of the Restatement (Second) of Torts with a trial to follow depending on the outcome of the inquiry. Sokolsky, 93 A.3d at 870-71 (internal citations omitted). The record clearly indicates the original trial court’s preclusion of a corporate negligence claim. Trial opinion by Dych J.; plaintiff brief and motion for new trial. Additionally, the record is absent of any application of the Althaus factors or section 323 of the Restatement (Second) of Torts to appellees’ claim of corporate negligence. Trial opinion by Dych J.; defendant brief (03/07/2014); plaintiff brief and motion for new trial (03/10/2014); defendant reply brief (mot/pet) (03/28/2014); plaintiff sur reply (04/07/2014).

Upon finding a mishandling of appellees’ claim of corporate negligence, this court next set out to determine if appellant owed the decedent a legal duty which would allow appellees to assert a claim of corporate negligence. See Scampone, 57 A.3d at 607; Sokolsky, 93 A.3d at 870. Upon finding such a duty, this court found a new trial was warranted. See id. Here, appellees claimed the factors discussed in Althaus and the Restatement (Second) of Torts were met and that a claim of corporate negligence should have been considered by this court. Plaintiff brief and motion for new trial at 18-19. In the interest of brevity and pursuant with the Sokolsky Court’s interpretation of the Althaus factors as “imperative,” this court will only discuss its findings as to the Althaus factors and not those associated with section 323 of the Restatement (Second) of Torts. See Sokolsky, 93 A.3d at 870 (internal citations omitted). This court believes the following analysis and application ofthe Althaus factors by appellees satisfactorily shows the decedent was owed a nondelegable duty of care by appellant:

1) The relationship between the parties — the professional relationship was between [appellant] and the decedent Mrs. Dizzely, a resident at their nursing home;
2) The social utility of the actor’s conduct — protect vulnerable nursing home resident in their care;
3) The nature of the risk imposed and forseeability of the harm incurred — It was a known risk that a resident who has trouble ambulating and who was incontinent should be placed in an ambulation and toileting program and the nursing home should be adequately staffed so the resident can receive the required assistance.
4) The consequences of imposing a duty upon the actor — preventing falls that result in injury, surgery, and death in fall risk and incontinent patients in hospitals and nursing homes;
5) The overall public interest in the proposed solution — preventing falls that result in injury, surgery, and death with adequate nursing supervision in nursing homes, which is already reflected in state and national nursing home legislation.

Plaintiff brief and motion for new trial at 18 (errors in original). When considering these factors, the Althaus Court noted a duty of care “is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society.” Althaus, 756 A.2d at 1169 (2000) (internal citations omitted). Bearing this in mind, a discussion ensues on the applicability of the Althaus factors to this case.

Upon review of the facts and record, this court found the relationship between the appellant and the decedent is one which weighs in favor of establishing professional obligations and legal duties. See id. at 1169-70. As a resident, the decedent was incontinent and at risk for falls. Plaintiff brief and motion for new trial at 5. The decedent’s admission to the nursing facility implies and her and her family’s expectation that she would be properly cared for. The appellant was no doubt on notice of such expectations as they are in the business of providing skilled nursing care.

Next, this court found that weighing the social utility of appellant’s action against the nature of the risk and forseeability of harm weighs in favor of establishing professional obligations and legal duties. See id. at 1170. This court recognizes the great social utility of appellant’s work. Providing care for those who require skilled nursing, particularly those who are elderly, as here, is an important task. What this court found more important is that such care is rendered in a proper manner. As the name implies — skilled nursing centers require just that — skilled care. Negligent care of those requiring such attention can cause undue hardship and burden for residents and their loved ones. Establishing legal duties which impute direct liability to skilled nursing care facilities therefore ensures the safety of those cared for. The court therefore found the nature of risks and forseeability of harm to the decedent through negligent care weighs in favor of creating a legal duty when compared to the social utility of appellant’s work.

Upon considering the consequences imposed upon the appellant through the creation of a duty, this court found such an imposition to be appropriate. See id. at 1170-71. Assigning appellant a duty which imputes direct liability ideally creates a consequence of increased oversight and care for those appellant looks after. While this may come at the risk of increased cost, so be it. This court believed properly skilled nursing care at an increased cost is a far better consequence than negligent care provided at a lower cost.

Lastly, this court found assigning alegal duty to appellant is in the public interest. See id. at 1171. As appellees point out, both federal and Pennsylvania regulations pertaining to skilled nursing or long term care facilities exist. Plaintiff brief and motion for new trial at 18, 21. As the court has stated, there is a great social utility in providing skilled nursing care. Assuring residents receive proper care through assigning a legal duty prevents undue financial, emotional, and physical burdens on the residents and their families.

Upon weighing the Althaus factors as applied to this case, this court finds the imposition of a duty is warranted. Appellant’s work is of great social utility, and the imposition of a duty could come at increased cost. However, the relationship of the parties, the public interest, and the forseeability or risk of harm tips the scale in favor of appellees. This court finds the imposition of a duty to ensure quality skilled nursing care to be in the interests of morals, justice, and society. See Althaus, 756 A.2d at 1169.

After concluding the original trial court mishandled appellee’s corporate negligence claim, this court found a legal duty owed by appellant to the decedent upon application of the Althaus factors. Pursuant to this court’s reading of Scampone and Sokolsky a new trial was therefore warranted. Thus, appellant’s claim that the original trial court acted consistent with Scampone is without merit. See 1925(b) statement ¶1.

B. The errors made by the original trial court were grounds for a new trial.

Appellant next argues that any error made by the trial court was harmless. Id. at ¶ 2. Appellant argues the jury’s finding of breach of duty, but not causation supports this argument. Id. Appellant also claims that allowing the jury to consider a corporate negligence claim would not have changed the jury’s verdict on causation. Id. Lastly, appellant argues that appellees were permitted to present relevant evidence to the jury. Id.

An irregularity at trial or differing judicial opinion is not itself grounds for a new trial. Harman v. Borah, 756 A.2d 1116, 1122 (2000) (internal citations omitted). The moving party must show prejudice from a mistake. Id. While this court has already determined an error of law warranting a new trial, this court finds appellees demonstrated prejudice as a result of the original trial court’s errors.

Appellant’s arguments that the jury verdict would be the same and that proper evidence was allowed are without merit. Appellees have shown no charge was given on corporate negligence. Plaintiff brief and motion for new trial at 12. In fact, the charge quoted by appellees closely tracks the suggested charge found in §6.30 of the Pennsylvania Suggested Standard Civil Jury Instructions which falls under the chapter of agency with vicarious liability. Plaintiff brief and motion for new trial at 12; PAJICIV 6.30, Pa. SSJI (Civ), § 6.30 (2013). The opinion of the original trial court clarifies its approach, “All the defendant actors were either Care Pavilion employees or agents whose conduct exposed the corporation to vicarious liability, and so the jury was told.” Trial opinion by Dych J. at 5-6.

As the Scampone Court made clear, the fact that a corporation acts through its agents is not “a fatal impediment to haling a corporation into court on direct liability tort claims.” 57 A.3d at 598 (internal citation omitted). The Scampone Court further noted that vicarious and direct negligence theories are distinct policies which serve complimentary purposes. Id. As the record indicates, only vicarious liability was charged to the jury. Appellant’s argument that the verdict would be the same is without merit because the jury was precluded from considering the claim. Appellant would have this court believe a charge and verdict on vicarious liability would be the same as a charge and verdict on direct liability. However, as the Scampone Court clarified, both of these theories are distinct. Id. Appellees have been prejudiced by the preclusion of their corporate negligence claim. Appellant’s argument otherwise is without merit.

Furthermore, appellee’s have shown that the original trial court precluded evidence which prevented the jury from properly hearing a corporate negligence claim. Appellees cite to numerous examples of evidence preclusion including: (1) The original trial court’s preclusion of systemic failures. Plaintiff brief and motion for new trial at 8. (2) Appellees arguement for allowance of systemic failures including understaffing, to which the court reiterated its preclusion of corporate negligence and limited evidence to negligence concerning the fall. Id. at 10-11. (3) The court’s granting of appellant’s motion filed to preclude evidence of understaffing and under-budgeting. Id. at 19. (4) The court’s preclusion of expert testimony about regulation violations. Id. at 20.

Appellees argue that such evidence would have supported a claim of corporate negligence, as it supports their argument that appellant’s systemic failures were a factor in the decedent’s fall. Id. Appellees argue that not just evidence immediately relevant to the decedent’s fall but also evidence of appellant’s cumulative nature of deficient care throughout the decedent’s stay should have been allowed. Id. at 20-21. Upon argument against the court’s preclusion of systemic failures, the court explained that corporate negligence had not been expanded to nursing homes. Id. at 10-11. Notwithstanding the original trial court’s errors in preclusion of a corporate negligence claim warranting a new trial, this court finds the charge of only vicarious liability and preclusion of evidence regarding corporate negligence were errors of law which prejudiced appellees and warranted a new trial.

C. Appellees are not entitled to a new trial in regard to their negligence per se claim.

On appeal, appellant claims that appellees are not entitled to a new trial on the issue of negligence per se. 1925(b) Statement ¶ 4. This court agrees. Scampone does not address negligence per se and thus places the issue outside the scope of this court’s jurisdiction as this case was issued for reconsideration in light of Scampone. 57 A.3d 582. Furthermore, the Superior Court noted that appellees’ claim of negligence per se was waived on appeal as they did not seek post trial relief on the issue. Superior Court opinion entered (07/02/2009). Any proceedings of this matter before this court will thus exclude the issue of negligence per se.

IV. Conclusion

This court properly granted appellees’ motion for new trial upon reconsideration in light of Scampone v. Highland Park Care Ctr., LLC., 57 A.3d 582 (Pa. 2012). In review of the record, this court found the original trial court committed an error of law when it mishandled appellees’ claim of corporate negligence. Pursuant to Scampone and Sokolsky, this court then inquired if a new trial was warranted by testing the application of the Althaus factors and section 323 of the Restatement (Second) of Torts. Upon finding both applied, this court granted a new trial. Appellant’s claims that any errors committed by the trial court were harmless or that appellees failed to show they attempted to produce proper evidence are without merit. This court finds appellant’s argument that negligence per se is outside the scope of remand is with merit as the court finds it was waived. This court will thus preclude negligence per se in any future proceedings.


author: HODGE, J.,

text:
    Gennock v. Gennock

      C.P. of Lawrence County,
    No. 597 of 2005 DR

      Peter E. Horne, for plaintiff.

      Theodore A. Saad, for defendant.

      Aug. 14, 2014
   HODGE, J.,

— This opinion is issued pursuant to Rule 1925 (a) of the Pennsylvania Rules of Appellate Procedure in support of the order of court dated June 16, 2014, from which the plaintiff, Kirisa L. Gennock, appeals and contends that this court committed the following errors:

1. Determining that the defendant, John S. Gennock, is presently unemployed and lacking sufficient income to be assessed a monthly child support obligation; and

2. Determining that the defendant is currently unable to work.

Plaintiff and defendant are the natural parents of two minor children. Plaintiff initiated a complaint for child support on July 15, 2005. At that time, plaintiff was employed as a school teacher, and defendant was a self employed contractor. Following a conference, defendant was assessed a monthly support obligation for the two minor children. On December 4, 2013, defendant filed a petition for modification of child support, wherein defendant claimed he suffered from a medical disability and is unable to work. Defendant failed to provide the office of domestic relations with sufficient verification of his disability, and his request for a reduction in his child support obligation was dismissed. Defendant was directed to continue child support payments as directed by the July 14, 2011 support order. Defendant then filed a timely demand for a hearing before this court.

At the de novo hearing, defendant testified as to his various forms of past employment. Defendant eventually became a self-employed contractor in 2001. In February 2012, defendant began to suffer chronic pain and fatigue. Defendant stated that he attempted to maintain continuous employment, but defendant was unable to work at the capacity required in the construction trade. Defendant has continuously undergone medical treatment, but his insurance changed following the parties’ divorce in January of 2014. Consequently, defendant had to begin a new course of treatment with different physicians. Defendant described his inability to complete daily functions and his struggles with pain management. Defendant expressed a desire to work and various attempts at employment, but explained that his severe pain made any efforts futile.

Plaintiff testified that she has observed the defendant performing yard work at his girlfriend’s residence. Plaintiff stated that within weeks of the DeNovo Hearing she saw defendant operating a Bobcat and mending a fence in the back yard. Plaintiff believes defendant is able to maintain a full-time job and requests defendant be assessed a monthly earning capacity consistent with his prior income.

Based upon the testimony presented, this court entered an order on June 16, 2014 suspending defendant’s child support obligation. From this order, plaintiff filed a timely appeal.

When reviewing atrial court’s determinations regarding support orders, the standard utilized is whether the court committed an abuse of discretion. Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003). The appellate courts have defined an abuse of discretion as follows:

An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence, and the trial court will be upheld on any valid ground.

Id. at 1186. Thus, the calculation of a support order largely is within the discretion of the trial court.

A person’s support obligation is determined primarily by the parties’ actual financial resources and their earning capacity. Hoag v. Hoag, 646 A.2d 578 (Pa. Super. 1994). Although a person’s actual earnings usually reflect his earning capacity, where there is a divergence, the obligation is determined more by earning capacity than actual earnings. See DeMasi v. DeMasi, 597 A.2d 101 (Pa. Super. 1991). Earning capacity is defined as the amount that a person realistically could earn under the circumstances, considering his age, health, mental and physical condition, training, and earnings history. Gephart v. Gephart, 764 A.2d 613 (Pa. Super. 2000).

In the instant case, the court had the ability to personally observe defendant and hear his testimony. The court found defendant’s testimony regarding his inability to work to be credible. The court believes that the defendant is currently suffering from depression and chronic pain. Furthermore, the defendant’s attempts to seek treatment have been frustrated by a change in insurance carriers. Additionally, the court finds plaintiff’s testimony regarding her observation of the defendant working at his girlfriend’s residence to be inclusive of his ability to maintain constant employment. Defendant testified that he often tries to work, but he is overwhelmed by fatigue and chronic pain. The court understands that such a determination does not immediately benefit the parties’ minor children, but the defendant has to be given the opportunity to complete treatment and attempt to overcome his present difficulties in order to assist his children on a long term basis. For these reasons, the court concluded that, at this time, defendant does not possess an earning capacity.

Consistent with this opinion, the court will enter the following order of court:

ORDER OF COURT

And now, this 14th day of August, 2014, with the court having received a concise statement of errors complained of on appeal, filed on behalf of the plaintiff, Kirisa L. Gennock, in the above captioned case, and with the Court issuing the attached opinion, pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure in support of the orders of court dated June 16, 2014, the court hereby directs the office of domestic relations to assemble the record and transmit the same to the prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

The office of domestic relations shall properly serve notice of this order and opinion upon counsel of record for the parties and upon any party not represented by counsel at their last known address as contained in the court’s file.


author: TUNNELL, J.,

text:
    In re Estate of Basner

      C.P. of Chester County,
    No. 1512-1049

      Emily M. Nelson, for appellant.

      William R. Hanger, for appellee.
    Aug. 20, 2014
   TUNNELL, J.,

— Ellen Basner has appealed to the Orphans’ Court Division from the order of the register of wills which admitted to probate a certain handwritten document purportedly signed by Jeffrey K. Basner. After hearing the matter de novo on July 30,2014, the court, sitting without a jury, has decided to deny the appeal. It makes the following:

Findings of Fact

1. Jeffrey K. Basner, the decedent, died on June 7,2012.

2. Decedent married Sally J. Basner on April 23,2005.

3. Ellen Basner is decedent’s mother.

4. The decedent resided at 106 Sunnyside Road, West Grove, Chester County, Pennsylvania for over thirty years until his death.

5. The decedent owned no other properties and was the only named owner listed on the deed to the 106 Sunnyside Road, West Grove residence.

6. The decedent and Sally J. Basner separated on or about August 30, 2011.

7. Until the date of separation, the decedent and Sally J. Basner resided together at the 106 Sunnyside Road, West Grove address.

8. Neither of them initiated any formal legal proceedings for divorce or support against the other.

9. During the period of their separation and until the time of his death, the decedent and Sally J. Basner engaged in regular and sometimes daily contact whether in person or via the telephone.

10. During the period of their separation and until the time of his death, Sally J. Basner assisted the decedent with his shopping.

11. During the period of their separation and until the time of his death, Sally J. Basner periodically assisted decedent with his house cleaning.

12. During the period of their separation and until the time of his death, Sally J. Basner provided decedent with medical insurance coverage.

13. The decedent was survived by his wife, Sally J. Basner, parents Ellen and Donald Basner, and three adult siblings.

14. The decedent left no surviving children.

15. On July 7, 1995 and prior to his marriage to Sally J. Basner, the decedent signed a holographic document which stated:

I LEAVE ALL MY
WORLDLY POSSESSIONS
TO ELLEN BASNER
7/7/95 s/Jeffrey K. Basner

16. Ellen Basner was a witness to the decedent’s execution of the July 7, 1995 document.

17. An additional document was located at the decedent’s residence after his death; the document was apparently signed by the decedent; it bore no date. It is the subject of this appeal.

18. The document states:

AT THE TIME
OF MY DEATH,
THE HOUSE GOES
TO SALLY MUNRO
s/Jeffrey K. Basner

(hereinafter sometimes referred to as the “questioned document” or the “Munro Codicil”)

19. The document did not in any way revoke nor did it even refer to the 1995 document which was written and signed by the decedent.

20. There is no specific address in the Munro Codicil.

21. “Sally Munro” is the maiden name of the decedent’s wife, Sally J. Basner, and the name was used occasionally by the decedent during their marriage to reference Sally J. Basner.

22. The questioned document was written and signed by the decedent around August of2008, after the decedent and Sally J. Basner consulted with attorney Lauren G. Buchanan regarding the drafting of a new will.

23. A petition for probate and grant of letters was filed by Sally J. Basner on or about June 25, 2012.

Discussion

The hearing before the Orphans’ Court Division is de novo. 20 Pa. C.S.A. §776.

As the parties agreed that the 1995 document was indeed a will, the only question raised on appeal was whether the other document was signed before, or after, the 1995 will. If before, then obviously the 1995 document leaving “all my worldly goods” to Ellen Basner would necessarily prevail, and govern distribution. If signed after the 1995 will, was it indeed a codicil?

A codicil is a supplement or an addition to a will. It may explain, modify, add to or subtract from, qualify, alter or revoke provisions in an existing will. J. Brooke Aker (Bisel), Law of Wills in Pennsylvania, §1.12 (2d. Ed.) A codicil does not ordinarily, expressly or by necessary implication, revoke a prior will in toto. Id. To the contrary, a codicil operates as a republication of the will so as to make the will speak as of the date of the codicil. Id., at Section 1.12D.

A writing need not assume any particular form, or be couched in language technically appropriate to its testamentary character in order to take effect as a codicil. If the instrument is in writing and signed by the decedent at the end thereof, and is an otherwise legal declaration of his intention which he wills to be performed after his death, it will be given effect as a codicil. In Re: Hengen’s Est., 337 Pa. 547, 12 A.2d 119 (1940). The facts in Hengen are similar. In addition to a formal will, a paper was probated as a codicil. It contained the words:

“I want Mamie to have my House 544 George Street M.L. Hengen.”

This paper was found in a drawer. It was in the decedent’s handwriting and signed by her, but was not dated. The property described was the only real estate owned by her at her death. The issue was the absence of words like “after my death” or of similar import. The Supreme Court held that under the circumstances, the words “I want Mamie to have my house” necessarily referred to a time in the future, namely, after the death of the testatrix, and therefore was correctly held by the Orphans’ Court Division to be a testamentary instrument. See also, Kauffman’s Est., 365 Pa. 555, 76 A.2d 414 (1950).

Although the matter is loaded with credibility questions, once the more tangential issues are weeded out and focusing on the document that is the subject of this hearing, there is little difficulty in resolving this dispute. The “Munro Codicil” is very short. The court analyzes its components as follows: (1) is the signature authentic, (2) did decedent really refer to his wife by her maiden name and, if so, does that mean the document was executed before their 2005 marriage; (3) what is “the house”, and (4) what is the import of “at the time of my death.”

The first issues deals with the signature, which was questioned by Ellen Basner. She felt that the little discrepancies she saw indicated a forgery. While she was testifying about the signature, the court was looking at P-1. P-1 is the decedent’s passport. It also bears a signature on it. No one questioned whether that signature is other than genuine. That signature manifests what is referred to in graphology as standard deviation, which the other exhibited signatures also display. No signature is identical to the next one signed by any of us. If one writes out 25 checks at a time, one’s signatures are going to be different, not by a lot, but inevitably they will differ.

The court has no trouble concluding that the signature is genuine on the Munro Codicil. In fact, the decedent’s signature would be very difficult to forge. It is sloppy, but it is sloppy in very unique ways. Anyone trying to trace it, or duplicate it, will not be successful, in the court’s estimation.

Other questions about what happened to the “Munro Codicil”, where did it go, when did it disappear, why did it disappear and then appear again, remain unanswered. But the document did turn up and was found in an informal place. It is on a similar type of paper and has a look and feel that is similar to the 1995 will. The 1995 will is not questioned by the parties as a testamentary document.

Proceeding to the next issue, the named beneficiary on the “Munro Codicil”, there is only one Sally Munro. There is no doubt who that individual is. Sally was however only in the picture as of 2003. Clearly then, the document is later than 1995. In 1995 and up to 2003 there was no Sally Munro in the decedent’s life. Concededly, it could have been signed during the two years or so they cohabitated prior to marriage, but the court finds credible the testimony of Sally Basner that the decedent did call her by her maiden name from time to time after marriage. The court also believes that if Sally Basner had been trying to create this document she would probably have used the name “Sally Basner.” Thus, the questioned document is not only post 1995 but post-marriage in 2005 as well. The court finds Sally Basner’s testimony credible that she saw the decedent write it and sign it following the meeting with the attorney.

Next, it is clear that the decedent owned the house on Sunny side for 35 years, more or less, and that is a long time. That was undoubtedly what he was referring to and not some other potential partial ownership or a future interest in something else. This house meant something to the decedent. Although the Munro Codicil talks only about the devise of a “house”, such a devise necessarily carries with it the land which it physically covers and the additional amount of land, varying according to the circumstances of the case, in an amount necessary to properly and conveniently enjoy the use of the house as inhabited by the testator during his lifetime. Greenholt v. Franklin, 267 Pa. Super. 367, 406 A.2d 1085 (1979).

Finally, the phrase “at the time of my death” clearly is testamentary. There are in fact many decided cases in the Commonwealth like Hengen, supra, where even that phrase does not exist; the house just “goes to” whomever. The “Munro Codicil” cannot reasonably be construed to be a post-nuptial agreement or some other contract. It is testamentary in its expression.

The court pays no attention to the accounting issues; the tenant issues and the loan issues are all tangential and do not really bear at all on the issue that was before the court.

Conclusions of Law

1. The document referred to as the “Munro Codicil” is a valid testamentary disposition.

2. It was executed by the decedent after the 1995 will and after his 2005 marriage to Sally Munro, now Sally Basner.

3. The document is a codicil entitled to probate.

An appropriate order follows.

ORDER

And now, this 20th day of August, 2014, after hearing, the court sitting without a jury, denies the appeal of Ellen Basner for the reasons set forth in the decision.