HARRISBURG – A panel of judges from the Superior Court of Pennsylvania have concluded the Lancaster County Court of Common Pleas was in error, when it levied a judgment of non pros on a woman suing for medical malpractice and failed to consider that personal health issues she faced at the time prevented her timely filing.
On Feb. 9, Superior Court judges Mary P. Murray, Maria McLaughlin and Daniel D. McCaffery decided to issue a reversal of the trial court opinion, in plaintiff Renee Gammache’s case against Dr. Michelle Shen, Dr. Joseph Serletti and Penn Medicine Lancaster General Hospital. McCaffery authored the opinion.
“Gammache said that on April 28, 2017, she underwent a prophylactic bilateral mastectomy performed by Dr. Shen at Lancaster General Hospital. On the same day, she also underwent bilateral reconstructive surgery of her breasts, performed by Dr. Serletti,” McCaffery said.
“Dr. Serletti subsequently “performed revision surgeries on plaintiff’s breast implants,” on Sept. 14, 2017, and Jan. 26, 2018. Due to defendants’ alleged negligence, the mastectomies, breast implants and/or revision surgeries were not effective and Gammache suffered pain, disfigurement and both economic and non-economic damages.”
Gammache commenced the instant action by filing a pro se writ of summons on April 26, 2019, though never filed a follow-up complaint and had her case dismissed through a judgment of non pros handed down on July 2, 2019.
Gammache explained in an Aug. 20, 2019 petition to open the judgment of non pros that she “was dealing with…grave health crises, including cancer treatment and serious stomach and intestinal problems, [which] required hospitalizations and numerous doctors’ visits” prior to the complaint filing deadline of July 1, 2019.
On Sept. 11, 2019, in compliance with a rule by the trial court, the defendants filed an answer to plaintiff’s petition to open. The defendants averred that the petition to open, filed 49 days after entry of judgment of non pros, was untimely, and they pointed out that a certificate of merit is not required to be filed concomitantly with a complaint. After argument seven months later, the trial court denied Gammache’s petition to open the judgment on April 20, 2020.
Gammache appealed to the Superior Court, arguing that the trial court erred in failing to consider her arguments for why her petition to open the judgment was filed when it was, that the trial court erred by determining her petition was untimely and failed to address her equity argument.
“After careful review of the record, the parties’ trial court filings, the trial court opinion, and the briefs on appeal, we determine the trial court abused its discretion in denying Appellant’s petition open the judgment of non pros,” McCaffery stated.
“The trial court’s opinion does not address – nor does it refute – plaintiff’s claim that, around the time she received defendants’ notice of intent to file a praecipe for entry of judgment of non pros, she was hospitalized and suffering health issues, which delayed her attempts to secure counsel. We decline to find waiver, as plaintiff did present this issue for the trial court’s consideration.”
McCaffery noted the trial court and defendants properly pointed out that, contrary to plaintiff’s claim, she was not required to file a certificate of merit simultaneously with her complaint.
Per the Superior Court, where the plaintiff’s proposed complaint averred she underwent surgery on April 28, 2017, Sept. 14, 2017, and Jan. 26, 2018, her April 26, 2019, writ of summons was filed within the two-year statute of limitations for a medical malpractice action.
“After considering all of the foregoing, we conclude the trial court abused its discretion in finding appellant’s petition to open was not promptly filed and that her delay was not ‘reasonably explained or excused.’ Appellees have not alleged any prejudice they will suffer by appellants’ failure, under the particular circumstances presented in this matter, to file a complaint by June 11, 2019 (the date set by the terms of their rule to file complaint),” McCaffery said.
“We determine, again under the particular facts presented, that appellant should not be put out of court on the basis of the record presented. Moreover, we note that the delay in responding was occasioned by appellant’s medical condition and not to gain any tactical advantage. Accordingly, we reverse the order of the trial court denying appellant’s petition to open the judgment of non pros.”
Superior Court of Pennsylvania case 776 MDA 2020
Lancaster County Court of Common Pleas case CI-19-03929
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com