2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

accomplished. In Valles v. Albert Einstein Medical Center, 758 A.2d 1238 (Pa. Super. Ct.2000), aff’d, 805 A.2d 1232 (Pa. 2002), the court held, as a matter of law, that a hospital cannotbe held vicariously liable for the failure of its physicians to obtain a patient’s informed consent.In finding no evidence of control, the court explained:While we agree with appellant that AEMC had a duty to generallyoversee Dr. Allen, nothing in the record indicates that AEMCexercised control over the manner in which he was to performradiology work, such as the aortogram. We fail to see how AEMCcould conduct such oversight, absent having another physicianpresent, in light of the fact that the procedure in question is of ahighly specialized nature and requires specific skills, education andtraining in order to be performed . . . [i]t is the surgeon and not thehospital who has the education, training and experience necessaryto advise each patient of the risks associated with the proposedsurgery.It should also be noted that in a recent case, Toney v. Chester County Hospital,961 A.2d 192 (Pa. Super. Ct. 2008), appeal granted, 973 A.2d 415 (Pa. 2009) theSuperior Court permitted a plaintiff to bring causes of action for negligent infliction ofemotional distress and intentional infliction of emotional distress against a hospital after adoctor employed by the hospital allegedly misinterpreted an ultrasound as being normal,thus causing severe emotional distress for Plaintiff-mother after her child was born withsevere birth defects (the Superior Court ultimately dismissed Plaintiff’s claim forintentional infliction of emotional distress, however, for failure to set forth sufficientallegations in the Complaint to sustain her claim).On June 3, 2009, the Pennsylvania Supreme Court granted an appeal on thismatter. The issue on appeal to be decided by the Court is:Whether the Superior Court erred in finding a cause of action fornegligent infliction of emotional distress exists where emotionaldistress results from the negligent breach of a contractual orfiduciary duty, absent a physical impact or injury.Toney, 973 A.2d 415 (Pa. 2009). The court heard argument in March 2010. TheSupreme Court being equally divided, affirmed the Superior Court on December22, 2011. 2011 Pa. LEXIS 3101 (Pa. Dec. 22, 2011). Specifically, Justice OrieMelvin did not participate in the consideration of the case at the Supreme Courtlevel; Justice Baer , Justice Todd and Justice McCaffrey supported affirming theSuperior Court decision; Chief Justice Castille, Justice Saylor, and Justice Eakin allsupported reversing the Superior Court.56