2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Appellee filed post-trial motions for a new trial and judgment notwithstanding theverdict. The trial court granted the motion for judgment notwithstanding the verdict, finding thatPlaintiffs’ informed consent claim failed as a matter of law. Specifically, the trial court foundthat Plaintiffs’ claim failed because the informed consent statute required the patient herself totestify that the allegedly undisclosed information would have been a substantial factor in herdecision making. The trial court reasoned that without Carol’s testimony, the jury could onlyspeculate as to what her thought process was and whether she had, in fact, provided informedconsent to the surgery.Appellants appealed the decision of the trial court to the Superior Court, which affirmedthe grant of judgment notwithstanding the verdict in an unpublished opinion. The SuperiorCourt panel determined that Thomas’ testimony was insufficient to prove that the allegedlyundisclosed information would have been a substantial factor in Carol’s decision making. Thepanel reasoned that although Thomas could testify as to what he understood the risks of thesurgery to be, or what he suggested to Carol regarding the risks, he could not testify about thesignificance Carol may have placed on the allegedly missing information.The primary issue before the Supreme Court was whether the testimony of a person otherthan the patient can be sufficient to prove the substantial factor element. The Supreme Courtheld that, “as in other areas of the law, circumstantial or indirect evidence may suffice for aninformed consent patient to prove the elements of her claim.” Fitzpatrick, 961 A.2d at 1241.Thus, “a patient’s decision to refrain from testifying at trial is not fatal to the claim.” Id.E. Hospital Liability1. Theories of Hospital LiabilityHistorically, Pennsylvania hospitals were immune from tort liability based on thedoctrine of charitable immunity. Benedict v. Bondi, 122 A.2d 209 (Pa 1956). In 1965, however,the Pennsylvania Supreme Court abolished the doctrine of charitable immunity, therebyeliminating the hospital’s shield to liability. Flagiello v. Pa. Hosp., 208 A.2d 193 (Pa. 1965).Today, Pennsylvania courts may impose liability on hospitals based on any one of three theories.(a)Respondeat Superior – General Principles and Recent CasesUnder the doctrine of respondeat superior, an employer may be held vicariously liablefor the negligent acts of its employees if the acts were committed during the course of and withinthe scope of the employment.In Tonsic v. Wagner, 329 A.2d. 497 (Pa. 1974), the Pennsylvania Supreme Court held forthe first time that agency principles should also apply to operating physicians as well ashospitals. Because the hospital’s liability is based on principles of agency law, a Plaintiff mustshow the existence of a master-servant relationship between the negligent staff member and thehospital.Generally, a master-servant relationship will be found where the hospital not onlycontrols the result of the work but has the right to direct the manner in which the work shall be55