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Allocatur Watch

The state Supreme Court has agreed to hear argument on whether a plaintiff may state a claim for vicarious liability against a hospital for the alleged conduct of an emergency room doctor by pointing out that she was part of an emergency response team and had not previously treated the patient.

The justices are set to test the theory in a case where the patient died, allegedly as the result of a botched treatment.

On Aug. 20, the justices agreed to grant allocatur in Green v. Pennsylvania Hospital. The two-page order said the court would hear arguments on the issue of whether a jury should be able to consider a plaintiff’s vicarious liability claim based on a theory of ostensible agency “where a physician provides emergency treatment at the request of a hospital for a person who was not previously the physician’s patient.”

The order additionally granted argument on whether the Medical Care Availability and Reduction of Error Act prohibits an expert nurse from providing causation testimony solely against a nurse in a case where doctors were also sued for negligence.

In January, a split three-judge Superior Court panel found that a trial judge properly granted nonsuit motions against all the defendants in the case, and held that Ronald Green, the executor of decedent Joseph Fusco’s estate, failed to carry his burden as to the relationship between Pennsylvania Hospital and Dr. Nora Malaisrie, an ear, nose and throat doctor, or ENT, whom the plaintiff alleged was negligent.

“Ultimately, viewing the evidence and all reasonable inferences arising from it in the light most favorable to appellant, a jury could not reasonably conclude that the elements of the cause of action had been established where appellant failed to adduce any evidence regarding Dr. Malaisrie’s relationship to Pennsylvania Hospital or the manner in which she presented herself to decedent,” Senior Judge William H. Platt said in the majority’s opinion.

In a dissenting opinion, President Judge Susan Peikes Gantman said the question should have at least gone to a jury.

“Here, the facts viewed in the light most favorable to appellant reveal that Dr. Malaisrie became involved in decedent’s care as part of an emergency response team when he was ‘squirting blood’ from his tracheostomy incision,” Gantman said. “Anesthesiology and ENT were called to the room, and Dr. Malaisrie responded to decedent’s emergency room situation at the direction of the hospital and not at the request of decedent.”

Green’s attorney, James W. Sutton III of Vlasac & Shmaruk in Feasterville, Pa., said he had not uncovered any case law dealing with an ostensible agency claim for vicarious liability when the patient was unconscious during the treatment and subsequently died.

“My client was unconscious and ultimately died,” Sutton said. “That question of an unconscious person, what they would have thought, I don’t believe has been specifically addressed in the commonwealth.”

Pennsylvania Hospital’s counsel, Teresa Ficken Sachs of Post & Schell, said she did not feel the record supported the plaintiff’s arguments.

“I think this is an extremely difficult case factually for the plaintiffs to be making these arguments,” Sachs said. “We feel the Superior Court and the trial court got it right, and we feel the Supreme Court will come to the same conclusion.”

According to Platt’s memorandum opinion, Fusco was taken to the emergency department of Pennsylvania Hospital with complaints of shortness of breath, rapid breathing and wheezing. He was admitted to the intensive care unit and intubated. He remained in critical condition, Platt said, and days later a feeding tube and tracheostomy was installed. According to Platt, bleeding was found at the site of the procedure, and emergency procedures, including a bronchoscopy, repeat intubations and placement of a chest tube, were performed; however, Fusco died days later.

Green sued the hospital and seven health care providers, including doctors and nurses, for survival and pain and suffering claims.

At the close of the plaintiff’s case, the defendants moved for nonsuit, and the trial court granted the motion, Platt said.

According to Platt, in holding that Green failed to offer evidence to meet the standard for establishing the vicarious liability claim, the trial court noted that Green provided no evidence about the organizational structure of the hospital, the way Malaisrie presented herself to Fusco or whether a reasonable patient would believe she was an agent of the hospital.

Green argued before the Superior Court that the facts that Malaisrie was part of the emergency response team, Fusco had not been a patient of Malaisrie’s prior to the emergency event and that Malaisrie responded to Fusco’s emergency at the request of the hospital, and not Green or Fusco’s family, met the ostensible agency standard for vicarious liability.

Green also cited the Superior Court’s 1984 decision in Simmons v. St. Clair Memorial Hospital and the 1980 case Capan v. Divine Providence Hospital to support his argument.

Platt agreed with the trial court that Green did not carry his burden of establishing the relationship between Malaisrie and the hospital. He noted that one of Green’s witnesses, an anesthesiologist who responded to the emergency, did not see Malaisrie arrive and that Fusco’s brother and Green were both unable to shed light on Malaisrie’s relation to the hospital.

“Nor did appellant present any other witnesses or evidence to illustrate the substance of, or what a reasonably prudent person in decedent’s position would have believed to be, the relationship between Dr. Malaisrie and Pennsylvania Hospital,” Platt said.

Platt additionally said that Simmons and Capan were not dispositive, as Simmons involved a case where testimony indicated a treating doctor was a chair of a hospital’s department and was responsible for problems relating to patient care, and Capan dealt with jury instructions.

“Here, appellant argues that decedent sought care from the institution, rather than a specific physician, but fails to acknowledge that, throughout the litigation, the hospital denied that Dr. Malaisrie was its agent,” Platt said.

Green had also argued that when the trial court excluded expert testimony regarding a nurse’s conduct, it had incorrectly relied on the limitation against nonphysician testimony outlined in the MCARE Act.

Green cited a footnote in the state Supreme Court’s 2009 decision in Freed v. Geisinger Medical Center, but Platt said the plaintiff misconstrued the section, which included the caveat that courts have discretion to examine whether the nonphysician expert is competent to testify.

The trial court, Platt said, “compellingly” reasoned that allowing the expert to testify about causation for the nurses but not the physicians in instances where the care was “indivisible as to who was providing it” would have created an “anomolous result”; therefore, the expert was properly barred from testifying on causation.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.