Green, R., Aplt. v. Pennsylvania Hospital. ( 2015 )

[J-6-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
RONALD GREEN AS THE EXECUTOR : No. 36 EAP 2014
OF THE ESTATE OF JOSEPH FUSCO, :
: Appeal from the Judgment of the Superior
Appellant : Court entered on January 30, 2014 at No.
: 2858 EDA 2012, affirming the Order of the
: Court of Common Pleas of Philadelphia
v. : County, Civil Division, entered on August
: 21, 2012 at No. 4093 June Term, 2009
:
PENNSYLVANIA HOSPITAL AND : ARGUED: March 10, 2015
CONTRIBUTORS TO PENNSYLVANIA :
HOSPITAL AND STELLA BARBER, RN :
AND SYLVIA AQUINO, RN AND LORI :
YAKISH, RN AND KELLY A. CARR, RRT :
AND JAMES KEARNEY, MD AND :
STEVEN A. GLASSER, MD AND JOHN :
D. SPRANDIO, JR., MD AND BORA LIM, :
MD AND EUGENE M. LUGANO, MD :
AND ANTHONY GIORGIO :
:
Appellees :
OPINION
MADAME JUSTICE TODD DECIDED: September 3, 2015
In this negligence action, Ronald Green, Executor of the Estate of Joseph Fusco
(hereinafter “Appellant”), appeals the order of the Superior Court affirming the trial
court’s grant of a nonsuit in favor of Appellees Pennsylvania Hospital (the “Hospital”),
Contributors to Pennsylvania Hospital, Stella Barber, R.N., Sylvia Aquino, R.N., Lori
Yakish (formerly Lori Rhoades), R.N., Kelly A. Carr, R.R.T., James Kearney, M.D.,
Steven A. Glasser, M.D., John D. Sprandio, Jr., M.D., Bora Lim, M.D., Eugene M.
Lugano, M.D., and Anthony Giorgio. For the reasons that follow, we reverse and
remand for further proceedings.
I. Factual and Procedural Background
On December 30, 2008, Joseph Fusco (hereinafter “Decedent”) arrived at the
emergency department of the Hospital, complaining of shortness of breath, rapid
breathing, and wheezing. He was admitted to the Intensive Care Unit (“ICU”) and given
medication, which failed to alleviate his symptoms. As a result, Decedent, who suffered
from a number of pre-existing conditions, including chronic obstructive pulmonary
disease, was intubated and placed on a ventilator in order to assist with his breathing.
Decedent remained on a ventilator in critical condition for ten days.
On January 9, 2009, in an attempt to wean Decedent from the ventilator, a
physician at the Hospital performed a tracheotomy, a surgical procedure in which an
opening is made through the neck into the trachea,1 and a tube is inserted through the
opening in order to provide an airway. Because Decedent was going to be placed back
on a ventilator after the tracheotomy, a tracheotomy cuff, which is an inflatable device
that secures the tracheotomy tube to the sides of a patient’s trachea, was placed
around the tube and inflated.
On January 10, 2009, Decedent was seen by his pulmonary physician, Dr.
Eugene Lugano, who documented a plan to wean Decedent off the ventilator and use a
“trach collar,” which would allow Decedent to receive oxygen through an aerosol mask
instead of a mechanical ventilator. The plan was implemented that day at
approximately 12:30 p.m., at which time the tracheotomy cuff was deflated. At
approximately 4:30 p.m. that afternoon, Nurse Lori Yakish noticed a moderate to large
1
The trachea is also referred to as the windpipe.
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amount of blood coming from the site of Decedent’s tracheotomy2 and reported this to
the attending physician, Dr. John Sprandio. Dr. Sprandio advised Nurse Yakish to
monitor the situation. Approximately one-half hour later, Nurse Yakish rolled Decedent
over so she could clean his back, at which time a large amount of fresh blood began to
squirt from the tracheotomy site.
A team of medical personnel, including anesthesiologist Dr. Stephen Glasser,
immediately responded to Decedent’s room, and determined that Decedent’s
tracheotomy tube had become blocked, depriving Decedent of an airway. Dr. Glasser
testified that, when he arrived, other medical professionals were attending to
Decedent’s tracheotomy site, and Decedent appeared stable. At approximately 5:00
p.m., Dr. Nora Malaisrie, an ear, nose, and throat (“ENT”) physician, arrived in
Decedent’s room. At this time, Dr. Glasser received another page, requiring him to
leave the room, but he asked two of the nurse anesthesiologists to remain. Dr.
Malaisrie attempted to ascertain the location of Decedent’s blockage using a
bronchoscope. She observed clotted blood near the bottom of the tracheotomy tube,
and attempted to clear it using a saline lavage. Unable to clear the blockage, Dr.
Malaisrie inserted a tube into Decedent’s mouth and used an “ambu bag” to try and
force air through the tube into Decedent’s lungs. When those measures failed to
remedy Decedent’s inability to breathe, Dr. Malaisrie removed the tube from Decedent’s
mouth and attempted to reinsert another tube through the existing site in Decedent’s
neck; however, the tube went into Decedent’s thorax, rather than into his trachea, as
intended. As a result, when medical personnel began to force air through the
improperly-placed tube, the air accumulated outside of Decedent’s lungs, causing his
lungs and trachea to collapse. At this point, Dr. Glasser returned to Decedent’s room,
2
A small amount of blood around the site of the incision post-surgery is normal.
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and determined that Decedent was not getting air into his lungs. Dr. Glasser instructed
that the improperly-placed tube be removed, and that Decedent again be intubated
through his mouth. Once properly intubated, Decedent began to receive air into his
lungs; however, by this time, Decedent had suffered cardiac arrest, and he was
pronounced dead at 6:36 p.m.
Appellant, as executor of Decedent’s estate, commenced a negligence action
against the Hospital and several individual defendants, including Nurse Yakish, in June
2009. Appellant alleged that Nurse Yakish was negligent and deviated from the
appropriate standard of care by failing to properly care for and treat Decedent following
his tracheotomy procedure; by moving Decedent too soon after his tracheotomy
procedure; and by failing to properly monitor, observe, and oversee Decedent following
his tracheotomy procedure. See Fourth Amended Complaint, at Count IV. Appellant
further alleged that the Hospital was vicariously liable, inter alia, for the negligence of
Dr. Malaisrie.3 Id. at Count XIII.
Relevant to the instant appeal, the Hospital filed a motion in limine challenging,
inter alia, the testimony of Appellant’s expert, Nurse William K. Pierce, to the extent
Nurse Pierce intended to offer any opinion that Nurse Yakish’s negligent acts caused
Decedent’s pain, suffering, or ultimate death.4 The trial court prohibited Nurse Pierce
from offering an opinion as to whether Nurse Yakish’s actions were the cause of
3
In his brief, Appellant asserts that medical experts did not identify Dr. Malaisrie’s
negligence as the cause of Decedent’s injuries until after the statute of limitations on
medical claims against Dr. Malaisrie had expired, which is the reason Dr. Malaisrie was
not named individually as a defendant. Appellant’s Brief at 8.
4
As Decedent did not have any next of kin, but was in a same-sex relationship for
which Pennsylvania, at the time, did not afford legal status, the damages claim was
limited to recovery for the pain and suffering Decedent experienced during the 2 to 3
hour period preceding his death. For purposes of this opinion, we will use the term
“injuries” to describe Decedent’s pain and suffering.
[J-6-2015] - 4
Decedent’s injuries, but did allow Nurse Pierce to offer an opinion as to whether certain
actions of Nurse Yakish were negligent.
At the close of Appellant’s case, the Hospital moved for a nonsuit as to all
defendants, with the exception of Nurse Yakish. The following day, the trial judge
granted a nonsuit as to all defendants, including Nurse Yakish. With regard to Dr.
Malaisrie, the trial court acknowledged that Appellant presented expert testimony that
Dr. Malaisrie had deviated from the standard of care, but concluded Appellant failed to
establish that Dr. Malaisrie was an ostensible agent of the Hospital, as required under
the Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101-1303.910
(“MCARE Act”). Specifically, the trial court determined that Appellant failed to offer any
evidence that a reasonably prudent person in Decedent’s position would have been
justified in the belief that the care in question was rendered by the Hospital or its agents.
Id. § 1303.516(a)(1). The trial court highlighted that Appellant did not present any
witnesses to testify regarding “how the agency structure of the hospital was set up
regarding ENT physicians . . . in the Hospital’s facilities,” nor did Appellant present the
testimony of Appellant’s brother “as to how Dr. Malaisrie presented herself as to
agency, or whether a reasonable patient would believe she was an agent of the
hospital.” Trial Court Opinion, 4/15/13, at 3-4. With regard to Nurse Yakish, the trial
court opined that Appellant “failed to demonstrate that any action taken by or
attributable to Nurse Yakish was the cause of Decedent’s death.” Id. at 5.
Appellant’s subsequent motion to remove the nonsuit and his request for other
post-trial relief were denied. On appeal to the Superior Court, Appellant argued that the
trial court erred in removing the question of the ostensible agency of Dr. Malaisrie from
the jury, and, additionally, erred in precluding Nurse Pierce from offering an opinion as
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to whether Nurse Yakish’s negligence was a medical cause of Decedent’s death. A
split three-judge panel of the Superior Court affirmed the trial court’s order.
Judge Platt, writing the lead opinion, agreed with the trial court’s conclusion that
Appellant failed to present any evidence which would suggest that a “reasonably
prudent person in Decedent’s position would have been justified in believing that Dr.
Malaisrie’s care was being rendered by the hospital or its agents.” Green v.
Pennsylvania Hosp., 2858 EDA 2012, unpublished memorandum at 7 (Pa. Super. filed
Jan. 30, 2014). Specifically, Judge Platt concluded that Appellant failed to offer any
evidence “as to the extent of Dr. Malaisrie’s duties or responsibilities at Pennsylvania
Hospital, let alone the manner in which she presented herself to Decedent while treating
him.” Id. at 8-9. Acknowledging Appellant’s argument that Decedent sought care from
the Hospital, rather than from a specific physician, Judge Platt noted that Appellant “fails
to acknowledge that, throughout the litigation, the Hospital denied that Dr. Malaisrie was
its agent, nor did Appellant present evidence to establish the extent of Dr. Malaisrie’s
relationship with Pennsylvania Hospital.” Id. at 9.
Judge Platt further rejected Appellant’s contention that the trial court erred in
precluding Nurse Pierce from testifying that Nurse Yakish’s actions were a cause of
Decedent’s injuries, noting that the case on which Appellant relied in support of his
argument, Freed v. Geisinger Med. Ctr., 971 A.2d 1202 (Pa. 2009), gives a trial court
discretion to allow a nurse to testify as an expert on matters other than the standard of
care if the court determines that the expert is otherwise competent to do so, but does
not require it do to so. Judge Platt further observed that the trial court specifically found
that Nurse Pierce could not testify “outside the area of his expertise,” a determination
Appellant failed to acknowledge. Green, 2858 EDA 2012, at 15. President Judge
Gantman concurred in the result.
[J-6-2015] - 6
Judge Shogan also concurred in the result with respect to the proffered testimony
of Nurse Pierce. However, regarding the ostensible agency issue, Judge Shogan
dissented, concluding that the facts, when viewed in the light most favorable to
Appellant, indicated that Dr. Malaisrie was involved in Decedent’s care as part of the
emergency team that responded to the Hospital’s page when blood began to discharge
from Decedent’s tracheotomy site, and that, because Dr. Malaisrie attended Decedent
at the request of the Hospital, not Decedent himself, the question of whether a prudent
person in Decedent’s position would have been justified in the belief that the care he
received was rendered by the Hospital or its agents should have been decided by the
jury.
Appellant filed a petition for allowance of appeal with this Court, and we granted
review to consider: (1) whether the question of the Hospital’s liability for the negligence
of its treating physician, Dr. Malaisrie, under a theory of ostensible agency should have
been presented to the jury; and (2) whether this Court’s decision in Freed, supra, allows
a nurse to provide expert testimony as to causation on a claim against another nurse, in
an action where the plaintiff raised additional claims against doctors based on their
alleged acts of negligence.
II. Analysis
A. Vicarious Liability for a Physician’s Negligence
In order to state a cause of action for negligence, a plaintiff must allege facts
which prove the breach of a legally recognized duty or obligation of the defendant that is
causally related to actual damages suffered by the plaintiff. Scampone v. Highland Park
Care Ctr., LLC., 57 A.3d 582, 596 (Pa. 2012). To prove the elements of a duty and the
breach thereof, a plaintiff must show that the defendant’s act or omission fell below the
standard of care, and, therefore, increased the risk of harm to the plaintiff. Id. The
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plaintiff then must demonstrate “the causal connection between the breach of a duty of
care and the harm alleged: that the increased risk was a substantial factor in bringing
about the resultant harm.” Id.
A plaintiff may pursue a negligence action against a defendant on the theory of
direct liability or vicarious liability. Under a direct liability theory, a plaintiff “seeks to hold
the defendant responsible for harm the defendant caused by the breach of a duty owing
directly to the plaintiff.” Id. at 597. Vicarious liability, on the other hand,
is a policy-based allocation of risk. Crowell v. City of
Philadelphia, 531 Pa. 400, 613 A.2d 1178, 1181 (1992).
“Vicarious liability, sometimes referred to as imputed
negligence, means in its simplest form that, by reason of
some relation existing between A and B, the negligence of A
is to be charged against B although B has played no part in
it, has done nothing whatever to aid or encourage it, or
indeed has done all that he possibly can to prevent it.” Id.
(quoting Prosser and Keeton on Torts § 69, at 499 (5th Ed.
1984)). Once the requisite relationship (i.e., employment,
agency) is demonstrated, “the innocent victim has recourse
against the principal,” even if “the ultimately responsible
agent is unavailable or lacks the ability to pay.” Mamalis v.
Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380, 1383
(1989); accord Crowell, 613 A.2d at 1182 (vicarious liability
is policy response to “specific need” of how to fully
compensate victim).
Id.
At one time, hospitals enjoyed absolute immunity from tort liability. The basis of
that immunity was the perception that hospitals functioned as charitable organizations.
Thompson v. Nason Hosp., 591 A.2d 703, 706 (Pa. 1991). As we recognized in
Thompson, however, “hospitals have evolved into highly sophisticated corporations
operating primarily on a fee-for-service basis. The corporate hospital of today has
assumed the role of a comprehensive health center with responsibility for arranging and
coordinating the total health care of its patients.” Id. (footnote omitted).
[J-6-2015] - 8
Thus, in 1965, this Court abolished the doctrine of charitable immunity for
hospitals in Flagiello v. Pennsylvania Hosp., 208 A.2d 193 (Pa. 1965). Thereafter,
[t]he concept of hospital liability in Pennsylvania further
evolved in Tonsic v. Wagner, [329 A.2d 497 (Pa. 1974),]
when we held that the hospital was not as a matter of law
immunized from any liability for negligence of its personnel
during an operation, thereby recognizing respondeat
superior as a basis for hospital liability. Subsequently,
Superior Court in Capan v. Divine Providence Hospital, [430
A.2d 647 (Pa. Super. 1980),] adopted the theory of
ostensible agency, when it held that the trial court erred in
failing to instruct the jury that it could find the hospital
vicariously liable for negligence of a physician, despite the
fact the physician was an independent contractor. See also
Simmons v. St. Clair [Memorial] Hospital, [481 A.2d 870 (Pa.
Super. 1984)].
Thompson, 591 A.2d at 707. We also went on to recognize that a hospital could be
held liable under the doctrine of corporate negligence, if the hospital fails to uphold the
proper standard of care owed to a patient. Id. at 707.
The ostensible agency theory adopted in Capan, supra, is based on Section 429
of the Restatement (Second) of Torts, which provides:
One who employs an independent contractor to perform
services for another which are accepted in the reasonable
belief that the services are being rendered by the employer
or by his servants, is subject to liability for physical harm
caused by the negligence of the contractor in supplying such
services, to the same extent as though the employer were
supplying them himself or by his servants.
Restatement (Second) of Torts § 429. Under the theory of ostensible agency, a
hospital could be held liable for the negligence of an independent contractor physician
where (1) the patient looked to the institution, rather than the individual physician, for
care, or (2) the hospital “held out” the physician as its employee. Capan, 430 A.2d at
650; Simmons, 481 A.2d at 875.
[J-6-2015] - 9
In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the
vicarious liability of hospitals under the doctrine of ostensible agency:
(a) Vicarious liability.−A hospital may be held vicariously
liable for the acts of another health care provider through
principles of ostensible agency only if the evidence shows
that:
(1) a reasonably prudent person in the patient’s position
would be justified in the belief that the care in question was
being rendered by the hospital or its agents; or
(2) the care in question was advertised or otherwise
represented to the patient as care being rendered by the
hospital or its agents.
(b) Staff privileges.−Evidence that a physician holds staff
privileges at a hospital shall be insufficient to establish
vicarious liability through principles of ostensible agency
unless the claimant meets the requirements of subsection
(a)(1) or (2).
40 P.S. § 1303.516.
As noted above, in the instant case, the trial court granted a compulsory nonsuit
based on its finding that Appellant failed to establish that Dr. Malaisrie was the
ostensible agent of the Hospital because he did not demonstrate under Section
1303.516(a)(1) that a reasonably prudent person in Decedent’s position would have
been justified in the belief that the care in question was rendered by the Hospital or its
agents.5 A trial court may enter a compulsory nonsuit on any and all causes of action:
if, at the close of the plaintiff’s case against all defendants on
liability, the court finds that the plaintiff has failed to establish
a right to relief. Absent such finding, the trial court shall
deny the application for a nonsuit. On appeal, entry of a
5
The parties do not dispute that subsection (a)(1) of Section 1303.516 is the only
subsection at issue in the case.
[J-6-2015] - 10
compulsory nonsuit is affirmed only if no liability exists based
on the relevant facts and circumstances, with appellant
receiving “the benefit of every reasonable inference and
resolving all evidentiary conflicts in [appellant’s] favor.” The
compulsory nonsuit is otherwise properly removed and the
matter remanded for a new trial.
Scampone, 57 A.3d at 595-96 (citing, inter alia, Pa.R.C.P. No. 230.1).
On appeal, Appellant maintains that the question of what a reasonably prudent
person in Decedent’s position would have been justified in believing is best determined
by a jury. Further, relying on Capan and Simmons, wherein the Superior Court
determined that the evidence presented was sufficient to raise a jury question as to
whether the doctors were ostensible agents of the respective hospitals, Appellant offers
the following facts as evidence which would support a jury finding that a reasonably
prudent person in Decedent’s position would have been justified in believing that Dr.
Malaisrie’s care was being rendered by the hospital or its agents: (1) Dr. Malaisrie first
became involved in treating Decedent as part of an emergency response team at the
hospital; (2) Dr. Malaisrie had no prior doctor/patient relationship with Decedent; and (3)
Dr. Malaisrie rendered emergency treatment to Decedent at the request of the hospital,
and not at the request of Decedent or Decedent’s family. Appellant’s Brief at 18-19.
The Hospital responds that the “facts” now offered by Appellant are “new” in that
they were not established at trial, Appellees’ Brief at 17-18, and, to the extent Appellant
relies on statements made during Appellant’s counsel’s opening statement, the Hospital
avers that statements by counsel are not evidence. According to the Hospital, the
totality of evidence established at trial relevant to the issue of whether Dr. Malaisrie was
an ostensible agent of the Hospital was: (1) after Nurse Yakish observed increased
bleeding from Decedent’s tracheotomy site, “she paged anesthesia”; (2) “ENT was also
contacted”; (3) Dr. Glasser, the anesthesiologist, arrived first; (4) Dr. Malaisrie, the ENT
physician, arrived approximately ten minutes after Dr. Glasser; and (5) Dr. Glasser
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testified at trial that he was an independent contractor, not an agent of the hospital. Id.
at 19-20. Additionally, the Hospital asserts: “The patient had been ‘awake and
cooperative’, and remained awake when Dr. Glasser arrived, and when Dr. Malaisrie
arrived. The patient was ‘stable’ and continued to be conscious until ‘sometime in the
middle’ of the subsequent procedure.” Id. at 20 (record citations omitted). Based on
this summary of the evidence, the Hospital contends that Appellant failed to offer any
evidence upon which a jury could conclude that a reasonably prudent person in
Decedent’s position would be justified in the belief that Dr. Malaisrie rendered care as
the Hospital’s agent.
The Hospital further maintains that the cases upon which Appellant relies,
including Capan and Simmons, do not support Appellant’s position because they are
factually distinguishable and predate the enactment of the MCARE Act. The Hospital
contends:
Permitting a jury to impose liability on this record would
effectively nullify the legislature’s enactment of section 516
(and would violate the public policy concerns underlying it)
because any hospital could potentially be subject to
“ostensible agent” liability for any provider, based on no
evidence other than the barest fact of emergency treatment
by a doctor authorized to practice in the hospital - exactly
what section 516(b) prohibits. The ostensible agency
“exception” would become the rule, and section 516(a)(1)
would be rendered meaningless.
Appellees’ Brief at 28-29.6
6
The Pennsylvania Medical Society and the Pennsylvania Defense Institute filed a joint
amicus brief, and the Hospital & Healthsystem Association of Pennsylvania filed a
separate amicus brief, in support of the Hospital. The Pennsylvania Association for
Justice filed an amicus brief in support of Appellant.
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Initially, we cannot agree with the Hospital’s argument that allowing a jury to
determine whether Decedent was justified in believing that Dr. Malaisrie was acting as
an agent of the Hospital when she treated Decedent will undermine and/or obviate
Section 516 of the MCARE Act by subjecting a hospital to ostensible agent liability
“based on no evidence other than the barest fact of emergency treatment by a doctor
authorized to practice in the hospital.” Appellees’ Brief at 29. As noted above, Section
1303.516(b) provides that evidence that a physician holds staff privileges at a hospital
“shall be insufficient to establish vicarious liability through principles of ostensible
agency unless the claimant meets the requirements of subsection (a)(1) or (2).” 40 P.S.
§ 1303.516(b) (emphasis added). In order for a hospital to be held vicariously liable
under Section 1303.516(a)(1), a plaintiff must establish that “a reasonably prudent
person in the patient’s position would be justified in the belief that the care in question
was being rendered by the hospital or its agents.” 40 P.S. § 1303.516(a)(1). We fail to
see how allowing a jury to determine whether Appellant has demonstrated that a
reasonably prudent person in Decedent’s position would be justified in the belief that the
care in question was being rendered by the hospital − a basis for liability specifically
contemplated by the MCARE Act itself − undermines or obviates the Act, as the
Hospital suggests.
Turning to the underlying question of whether a reasonably prudent person in
Decedent’s position would be justified in the belief that the care in question was being
rendered by the Hospital or its agents pursuant to 40 P.S. § 1303.516(a)(1), as noted
above, Appellant cites the Superior Court’s decisions in Capan and Simmons. In
Capan, the decedent was admitted to the hospital via the emergency room for treatment
of a severe nosebleed. While in the hospital, the decedent developed delirium tremens
and became violent. The nursing staff summoned the doctor who was on-call to answer
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emergencies, and the on-call doctor administered a series of drugs to the decedent in
an effort to calm him. After the on-call doctor left the hospital that evening, the
decedent suffered cardiac arrest and died. The decedent’s estate filed a wrongful death
and survival action against the hospital and several physicians, and the trial court, inter
alia, granted a nonsuit as to the survival action in favor of the hospital.
On appeal, the Superior Court held that the trial court erred in failing to instruct
the jury that it could find the hospital vicariously liable for the negligence of the on-call
doctor based on ostensible agency, despite the fact that the on-call doctor was an
independent contractor. The Superior Court reasoned:
The conception that the hospital does not undertake
to treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to
procure them to act upon their own responsibility, no longer
reflects the fact. Present-day hospitals, as their manner of
operation plainly demonstrates, do far more than furnish
facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and interns, as well
as administrative and manual workers, and they charge
patients for medical care and treatment, collecting for such
services, if necessary, by legal action.
Thus, a patient today frequently enters the hospital
seeking a wide range of hospital services rather than
personal treatment by a particular physician. It would be
absurd to require such a patient to be familiar with the law of
respondeat superior and so to inquire of each person who
treated him whether he is an employee of the hospital or an
independent contractor. Similarly, it would be unfair to allow
the “secret limitations” on liability contained in a doctor’s
contract with the hospital to bind the unknowing patient.
430 A.2d at 649 (citations omitted). The Superior Court concluded that, as the
decedent had entered the hospital through the emergency room and the on-call doctor
had treated the decedent in his capacity as house physician, not as the decedent’s
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personal physician, “the jury could have concluded that [the decedent] relied upon the
hospital rather than the [on-call doctor] himself for treatment. Additionally, the jury could
have found that [the hospital] held out [the on-call doctor] as its employee by providing
his services for dealing with emergencies within the hospital.” Id. at 650.
In Simmons, the decedent was admitted to the hospital after he was taken to the
emergency room following a suicide attempt. Hospital personnel contacted Dr. Alan
Wright, the on-call psychiatrist, and Dr. Wright arranged for the decedent’s admission to
the psychiatric unit. The decedent remained in the hospital for approximately 18 days,
during which time he was treated by Dr. Wright. The decedent was readmitted to the
hospital by Dr. Wright after another suicide attempt approximately five months later and
placed in the “general observation” level of the psychiatric unit, where patients are
observed every 30 minutes. Several days after he was admitted, the decedent used
ties from hospital robes to hang himself from the plumbing fixtures in the bathroom
adjoining his assigned room. The decedent’s father filed suit against the hospital, and
at trial attempted to introduce evidence to prove that Dr. Wright was an actual or
ostensible agent of the hospital. The trial court instructed the jury that Dr. Wright was
not an employee, agent, or servant of the hospital and that the hospital was not
responsible for his actions. The jury returned a verdict in favor of the hospital.
Following argument on post-trial motions, an en banc panel of the trial court granted a
new trial, determining, inter alia, that the trial court erred in withdrawing the question of
Dr. Wright’s agency from the jury. The hospital appealed.
The Superior Court affirmed, concluding “there was evidence of record from
which the jury may have determined that Dr. Wright was either an actual or ostensible
agent” of the hospital. 481 A.2d at 873. Citing Capan, the Superior Court noted:
Decedent herein was first admitted to [the hospital] through
the emergency room and decedent first came in contact with
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Dr. Wright at that time because he was the “on call”
emergency physician. Decedent’s parents were told that Dr.
Wright was the head of the psychiatry department at the
hospital and that he was “qualified”. Dr. Wright was the
admitting physician when decedent entered the hospital the
second time. Under these circumstances, we find that the
jury could have concluded that decedent looked to the
hospital for care and that the hospital “held out” the doctor as
its employee. Thus, we find that the court en banc properly
determined that it was error to withdraw the issue of
ostensible agency from the jury.
Id. at 874-75.
The high courts of several of our sister states have taken a similar approach. For
example, in Jackson v. Power, 743 P.2d 1376 (Ak. 1987), the Alaska Supreme Court
held that a hospital has a non-delegable duty to provide non-negligent emergency care
physicians on a 24-hour basis, and cannot “shield itself from liability by claiming it is not
responsible for the results of negligently performed health care when the law imposes a
duty on the hospital to provide that health care.” Id. at 1385. The court limited its
holding “to those situations where a patient comes to the hospital, as an institution,
seeking emergency room services and is treated by a physician provided by the
hospital,” and declined to extend its holding “to situations where the patient is treated by
his or her own doctor in an emergency room provided for the convenience of the doctor.
Such situations are beyond the scope of the duty assumed by an acute care hospital.”
Id.
In Gatlin v. Methodist Med. Ctr. Inc., 772 So. 2d 1023 (Miss. 2000), the
Mississippi Supreme Court reversed the trial court’s directed verdict in favor of the
hospital, holding that the question of whether the hospital was vicariously liable for the
negligence of an anesthesiologist, who failed to make sure there was sufficient blood
available for surgery on a patient who arrived at the hospital’s emergency room with
several gunshot wounds, was for the jury. In doing so, the Court emphasized that the
[J-6-2015] - 16
appropriate focus in determining whether a hospital may be held vicariously liable for
the negligence of an independent contractor physician is the relationship between the
patient and the health care provider, not the relationship between the hospital and its
physicians:
Where a hospital holds itself out to the public as providing a
given service, in this instance, emergency services, and
where the hospital enters into a contractual arrangement
with one or more physicians to direct and provide the
service, and where the patient engages the services of the
hospital without regard to the identity of a particular
physician and where as a matter of fact the patient is relying
upon the hospital to deliver the desired health care and
treatment, the doctrine of respondeat superior applies and
the hospital is vicariously liable for damages proximately
resulting from the neglect, if any, of such physicians. By way
of contrast and distinction, where a patient engages the
services of a particular physician who then admits the patient
to a hospital where the physician is on staff, the hospital is
not vicariously liable for the neglect or defaults of the
physician.
772 So. 2d at 1027 (quoting Hardy v. Brantly, 471 So. 2d 358, 369 (Miss. 1985)). The
Gatlin Court observed that, although there may be exceptions, a patient’s non-selection
of his physician is often the rule in the case of anesthesiologists, radiologists, and
emergency room physicians. 772 So. 2d. at 1028; see also Paintsville Hosp. Co. v.
Rose, 683 S.W.2d 255, 256-57 (Ky. 1985) (noting expansion of ostensible agency
theory from anesthesiologists to other physicians who are not employed by the hospital
but are furnished through the institutional process, such as pathologists, radiologists,
and emergency room physicians).
In Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312 (S.C. 2000), the South
Carolina Supreme Court, adopting Section 429 of the Restatement (Second) of Torts,
held “a hospital owes a nondelegable duty to render competent service to its emergency
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room patients.” Id. at 322. Although the Tuomey case involved emergency room
physicians, the court did not limit its holding to the emergency room setting, but instead
restricted it:
to those situations in which a patient seeks services at the
hospital as an institution, and is treated by a physician who
reasonably appears to be a hospital employee. Our holding
does not extend to situations in which the patient is treated
in an emergency room by the patient’s own physician after
arranging to meet the physician there. Nor does our holding
encompass situations in which a patient is admitted to a
hospital by a private, independent physician whose only
connection to a particular hospital is that he or she has staff
privileges to admit patients to the hospital. Such patients
could not reasonably believe his or her physician is a
hospital employee.
Id. at 323.
We recognize, as the Hospital points out, that the Superior Court decisions in
both Capan and Simmons predate the enactment of the MCARE Act. However, the
language of the MCARE Act specifically provides that “[a] hospital may be held
vicariously liable for the acts of another health care provider through principles of
ostensible agency.” 40 P.S. § 1303.516(a) (emphasis added). In our view, the
requirement for establishing ostensible agency under Section 1303.516(a)(1) − where
the evidence must show that a reasonably prudent person in the patient’s position
would be justified in the belief that the care in question was being rendered by the
hospital or its agents − is substantially the same as the requirement for establishing
ostensible agency under Section 429 of the Restatement (Second) of Torts − where the
recipient of services must demonstrate a reasonable belief that the services were
rendered by the employer or by his servants. Accordingly, Capan, Simmons, and the
cases from our sister states are instructive on the underlying question of whether, and
under what circumstances, a reasonably prudent person in Decedent’s position would
[J-6-2015] - 18
be justified in believing the care in question was being rendered by the Hospital or its
agents.
Guided by these cases, and based on our review of the record, we conclude
there was sufficient evidence to create a jury question concerning whether a reasonably
prudent person in Decedent’s position would be justified in the belief that Dr. Malaisrie
was acting as the Hospital’s agent when she rendered care to Decedent. It is
undisputed that Decedent first entered the Hospital through the emergency room, and
ultimately was admitted to the ICU. The Hospital does not dispute that, after Nurse
Yakish observed blood “squirting” from Decedent’s tracheotomy site, anesthesiology
and ENT services were paged. See N.T., 6/5/12, at 60 (Dr. Salgo testifying that “the
ENT service and anesthesiology services were asked to help. Anesthesiology showed
up and so did ENT after anesthesiology.”); N.T., 6/6/12, at 7 (Dr. Glasser testifying that
at approximately 4:30 p.m. on January 10, 2009, “there was a page for anesthesia
services to come to the Intensive Care Unit. The page we get on our beeper or an
overhead page.”). Dr. Glasser testified that he remained in Decedent’s room “until the
ENT physician arrived, and whose patient it primarily was.” Id. at 11. He estimated that
Dr. Malaisrie arrived in Decedent’s room ten minutes after he did. Id. at 12. Dr.
Glasser further testified that, shortly after Dr. Malaisrie arrived, he received another
page and left the room. Id. at 42 (“I was paged to go to the other area. I wouldn’t have
gone to the other area, but the Doctor had arrived and she was the primary service for
that patient for the tracheotomy so I did leave, yes.”). When Dr. Glasser returned
approximately 15 minutes later, he observed that Decedent was “stable,” but coughing
and “breathing on his own, possibly intermittently. They were assisting him with the
bag, but it wasn’t at all times. And he was stable at that time, but he was still having the
coughing and bleeding a little bit.” Id. at 12.
[J-6-2015] - 19
In this Court’s view, when a hospital patient experiences an acute medical
emergency, such as that experienced by Decedent in the instant case, and an attending
nurse or other medical staff issues an emergency request or page for additional help, it
is more than reasonable for the patient, who is in the throes of medical distress, to
believe that such emergency care is being rendered by the hospital or its agents.
Accordingly, we hold that the trial court’s grant of a nonsuit under Section 1303.516(a)
was erroneous in the instant case, and that the question of whether a reasonably
prudent person in Decedent’s position would be justified in his belief that the care
rendered by Dr. Malaisrie was rendered by her as an agent of the Hospital should have
proceeded to the jury. We, therefore, reverse the Superior Court’s decision affirming
the trial court’s grant of a nonsuit in favor of the Hospital on this issue, and remand the
matter for further proceedings.
B. Preclusion of Expert Testimony
In his second issue, Appellant concedes that the trial court’s entry of a nonsuit in
favor of Nurse Yakish based on a lack of causation evidence tying Nurse Yakish’s
alleged negligence to Decedent’s injuries was “undeniably correct,” but contends that
the absence of such evidence was the result of the trial court erroneously granting the
Hospital’s motion in limine precluding the causation testimony of Appellant’s expert
witness, Nurse Pierce. Appellant’s Brief at 25-26. The trial court permitted Nurse
Pierce to offer testimony regarding the quality of care offered by the nurses that treated
Decedent, but prohibited Nurse Pierce from opining as to whether Nurse Yakish’s
actions were a cause of Decedent’s injuries, reasoning:
[B]ecause this was a medical professional liability action[]
against a physician and Pierce did not possess an
unrestricted physician’s license, he was properly precluded
[from offering causation testimony] under the MCARE Act’s
requirements under § 1303.512(b)(1). If this had been a
[J-6-2015] - 20
case, such as Freed, [supra,] involving the causation of
bedsores and whether poor nursing was a (sic) the cause of
the bedsores[,] Pierce would have been free [to] testify as an
expert as to causation. However, since it involved liability
against multiple physicians and nurses, it would have
created an anomalous result to allow Pierce to testify as to
causation as to the nurses, but claim he was incompetent to
testify against the physicians for care that was in many
places indivisible as to who was providing it. As this was the
case, Pierce was properly allowed to testify regarding his
expert opinion of the quality of care provided by the
Defendant nurses but not as to causation of Decedent’s
death.
Trial Court Opinion, 4/15/13, at 9.
In arguing that the trial court erred in precluding Nurse Pierce from offering
causation testimony against Nurse Yakish, Appellant suggests that the trial court based
its decision on a “legally erroneous understanding of an inapplicable provision of the
MCARE statute,” specifically Section 1303.512. Appellant’s Brief at 26. We find
Appellant’s argument to be without merit.
Section 512 sets forth the requisite qualifications for an expert witness testifying
in a medical malpractice action against a physician:
(a) General rule.—No person shall be competent to offer an
expert medical opinion in a medical professional liability
action against a physician unless that person possesses
sufficient education, training, knowledge and experience to
provide credible, competent testimony and fulfills the
additional qualifications set forth in this section as applicable.
(b) Medical testimony.—An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet
the following qualifications:
(1) Possess an unrestricted physician's license to
practice medicine in any state or the District of Columbia.
[J-6-2015] - 21
(2) Be engaged in or retired within the previous five
years from active clinical practice or teaching.
Provided, however, the court may waive the requirements of
this subsection for an expert on a matter other than the
standard of care if the court determines that the expert is
otherwise competent to testify about medical or scientific
issues by virtue of education, training, or experience.
(c) Standard of care.—In addition to the requirements set
forth in subsections (a) and (b), an expert testifying as to a
physician's standard of care also must meet the following
qualifications:
(1) Be substantially familiar with the applicable
standard of care for the specific care at issue as of the time
of the alleged breach of the standard of care.
(2) Practice in the same subspecialty as the
defendant physician or in a subspecialty which has a
substantially similar standard of care for the specific care at
issue, except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by
an approved board, be board certified by the same or a
similar approved board, except as provided in subsection
(e).
***
(e) Otherwise adequate training, experience and
knowledge.—A court may waive the same specialty and
board certification requirements for an expert testifying as to
a standard of care if the court determines that the expert
possesses sufficient training, experience and knowledge to
provide the testimony as a result of active involvement in or
full-time teaching of medicine in the applicable subspecialty
or a related field of medicine within the previous five-year
time period.
40 P.S. § 1303.512.
Appellant maintains that the MCARE Act does not preclude Nurse Pierce from
offering causation testimony against Nurse Yakish, and, in support of his argument,
[J-6-2015] - 22
cites a portion of a footnote in this Court’s decision in Freed. Therein, we
acknowledged that our holding that the Professional Nursing Law did not prohibit an
otherwise competent and properly qualified nurse from giving expert testimony
regarding medical causation based on substandard nursing procedures might have
limited impact in light of the legislature’s enactment of the MCARE Act, but noted:
there are certainly situations in which it is questionable
whether the MCARE Act will apply and thus we conclude our
decision today retains its vitality. For example, the MCARE
Act, by its terms, appears to apply only to medical
professional liability actions against physicians, and not to
other professional liability actions, or to actions against non-
physician health care providers.
Freed, 971 A.2d at 1212 n.8 (emphasis added).
Regardless of the requirements for expert witnesses in medical malpractice
actions against physicians under the MCARE Act, or the language of Freed, the
MCARE Act does not mandate the admission of a given expert’s testimony. Rather,
decisions regarding the admission of expert testimony are left to the trial court’s
discretion, and will not be disturbed absent an abuse of discretion. Commonwealth v.
Towles, 106 A.3d 591, 605 (Pa. 2014). Further, and critically herein, a trial court may
exclude expert opinion testimony if the probative value of the testimony is outweighed
by the potential to cause confusion or prejudice. Houdeshell v. Rice, 939 A.2d 981, 986
(Pa. Super. 2007); Pa.R.E. 403 (court may exclude relevant evidence if its probative
value is outweighed by a danger, inter alia, of confusing the issues or misleading the
jury).
As the trial court noted, the instant case involved negligence claims against both
nurses and physicians. The trial court determined that allowing Nurse Pierce to offer
causation testimony as to Nurse Yakish, but not the physicians (which he was not
qualified to do), might confuse the jury, and the Superior Court affirmed the trial court’s
[J-6-2015] - 23
ruling, rejecting Appellant’s suggestion that, pursuant to Freed, supra, the trial court was
required to allow Nurse Pierce to offer expert causation testimony. Appellant fails to
argue, let alone establish, that the trial court abused its discretion in this regard.
Indeed, in his expert report, Nurse Pierce opined that Nurse Yakish “failed to adequately
assess/follow up bleeding from [Decedent’s tracheotomy],” and that “[t]he team
attending to [Decedent] during his crisis failed to react promptly to the need for the
[tracheotomy] cuff to be inflated and failed to adequately assess airway placement. As
a result of this negligence, Mr. Fusco suffered a cardiopulmonary arrest and died.”
Expert Report of William K. Pierce, 6/1/11, at 5 (R.R. at 303a). Thus, based on the
expert report, the proffered expert causation testimony of Nurse Pierce was based on a
course of conduct by nurses and physicians, and, as the trial court observed, had the
potential to confuse the jury. Accordingly, we hold that Appellant is not entitled to relief
on this issue.
III. Conclusion
For the reasons set forth above, we affirm the Superior Court’s decision to the
extent it affirmed the trial court’s grant of a nonsuit in favor of Nurse Yakish. However,
we reverse the Superior Court’s order affirming the trial court’s grant of a nonsuit in
favor of the Hospital, and remand the matter to the Superior Court, for remand to the
trial court, for further proceedings consistent with this opinion.
Order affirmed in part and reversed in part. Case remanded.
Mr. Chief Justice Saylor, Messrs. Justice Eakin, Baer and Stevens join the
opinion.
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