2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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In 1980, the Pennsylvania Superior Court recognized a second form of hospital liability.Capan v. Divine Providence Hosp., 430 A.2d 647 (Pa. Super. Ct. 1980). Under the ostensibleagency theory, a hospital may be held liable for the negligent acts of a staff member who is notan employee but, rather, an independent contractor. See generally Capan, 430 A.2d at 649.In finding Defendant hospital liable for the negligent acts of an independent contractorphysician, the Capan court recognized that “the changing role of the hospital in society creates alikelihood that patients will look to the institution rather than the individual physicians for care.”Id., at 649. The theory of ostensible agency is, therefore, premised upon two factors: (1) thepatient looks to the institution rather than the individual physician for care; and (2) the hospital“holds out” the physician as its employee. Id. A “holding out” occurs when the hospital acts oromits to act in some way which leads the patient to a reasonable belief that he is being treated bythe hospital or one of its employees. Id.The United States District Court for the Eastern District of Pennsylvania has held that afailure to deny agency does not rise to the level of “holding out”, particularly in a nonemergencyroom setting. Stipp v. Kim, 874 F. Supp. 663, 665 (E.D. Pa. 1995); see also Moralesv. Guarini, 57 F. Supp. 2d 150, (E.D. Pa. 1999; Whitehill v. Matthews, 40 Pa. D. & C. 4th 58(Del. Cty. Ct. Com. Pl. 1998).In Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579 (Pa. Super. Ct.2002), appeal denied, 825 A.2d 639 (Pa. 2003), the Pennsylvania Superior Court upheld the trialcourt’s decision to preclude Appellant from introducing evidence that Defendant radiologistswere ostensible agents of Appellee, Lehigh Valley Hospital, with respect to their interpretationof two radiological studies taken of Appellant’s decedent. Citing Goldberg, the Court held thatgiven the facts of this case, in order to impute liability on Lehigh Valley Hospital, not onlywould Appellant have had to show that the radiologists were negligent in reading the films atissue, but she would have also have been required to establish that such negligence contributed tothe neurosurgeons making a faulty diagnosis. Since it was ultimately the decision of theneurosurgeons to make the proper diagnosis and their conduct was found not to be a substantialfactor in causing Appellant’s harm, then the Court held that Appellant was precluded fromestablishing that the radiologists could have affected the jury’s determination as to causation.Under the MCARE Act, a hospital may be held vicariously liable for the acts of anotherhealth care provider through principles of ostensible agency if the evidence shows the following:1) a reasonably prudent person in the patient’s position would be justified in the belief that thecare in question was being rendered by the hospital or its agents; or 2) the care in question wasadvertised or otherwise represented to the patient as care being rendered by the hospital or itsagents. Further, evidence that a physician holds staff privileges at a hospital shall be insufficientto establish vicarious liability through principles of ostensible agency. See 40 Pa. Cons. Stat. §1303.516. The MCARE Act only applies to causes of action that arise on or after March 20,2002. For cases that fall before March 20, 2002, the subjective standard used in Capan v. DivineProvidence Hospital, 430 A.2d 647 (Pa. Super. Ct. 1980), applies.(c)EMTALA CASES58
In Torretti v Main Line Hospitals, Inc., 580 F.3d 168 (3 rd Cir. 2009), appellant HoneyTorretti (“plaintiff”) was pregnant with her second child. Plaintiff’s pregnancy was consideredhigh risk due to her diabetes. Plaintiff was referred to Paoli Hospital Perinatal Testing Center(“Paoli”) for monitoring during her pregnancy. Plaintiff’s primary obstetrician was Dr.McConnell, based out of Lankenau Hospital.59
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EMTALA CASES ......................
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Filing an Affidavit of Non-Involvem
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II.PROFESSIONAL LIABILITY - AN OVER
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The Superior Court reversed the tri
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to a third party pursuant to the st
Page 14 and 15: After approximately five months, De
Page 16 and 17: learned the day after the surgery t
Page 18 and 19: conduct to the delay in colon cance
Page 20 and 21: court admitted the expert’s testi
Page 22 and 23: (b)(c)other reasonable causes, incl
Page 24 and 25: corroborated his testimony. The cou
Page 26 and 27: husband’s estate. Plaintiff alleg
Page 28 and 29: Other notable federal cases arising
Page 30 and 31: The Superior Court found that in re
Page 32 and 33: § 1303.512(b). The court, however,
Page 34 and 35: In Neidig v. United States, No. 07-
Page 36 and 37: Additionally, the Supreme Court not
Page 38 and 39: were not indicated for her conditio
Page 40 and 41: surgeon is the same as it would be
Page 42 and 43: It should be noted that the Superio
Page 44 and 45: Finally, the court held that the tr
Page 46 and 47: The Supreme Court of Pennsylvania r
Page 48 and 49: nurses deviating from applicable st
Page 50 and 51: certainty, the court reviews expert
Page 52 and 53: Under Pennsylvania law, the Court n
Page 54 and 55: testimony, Defendant presented his
Page 56 and 57: Following Cooper v. Roberts, 286 A.
Page 58 and 59: Plaintiff developed chronic diarrhe
Page 60 and 61: where payment is made by Medicaid w
Page 62 and 63: accomplished. In Valles v. Albert E
Page 66 and 67: Plaintiff had a routine monitoring
Page 68 and 69: Plaintiff’s Contract ClaimsThe Co
Page 70 and 71: is a failure to report changes in a
Page 72 and 73: unit to assure post-surgical patien
Page 74 and 75: sliced his wrist and arm with a raz
Page 76 and 77: licensed professionals for whom the
Page 78 and 79: (c)Limitations of Corporate Neglige
Page 80 and 81: Even more recently, our Superior Co
Page 82 and 83: (a)HMO IssuesIn McClellan v. Health
Page 84 and 85: affidavit submitted by Defendants o
Page 86 and 87: treatments while at VA’s faciliti
Page 88 and 89: [s]ubstantively, we believe that a
Page 90 and 91: The party claiming the benefit of t
Page 92 and 93: deprive (him) of civil rights guara
Page 94 and 95: found that the District Court was w
Page 96 and 97: With respect to fraudulent concealm
Page 98 and 99: would be applied in situations wher
Page 100 and 101: they had not raised them in the cou
Page 102 and 103: (a)Informed ConsentUnder MCARE, a p
Page 104 and 105: civil enforcement provisions and ma
Page 106 and 107: MCARE also changes the manner in wh
Page 108 and 109: whose death, in 2005, was allegedly
Page 110 and 111: vicariously liable if the plaintiff
Page 112 and 113: health center or its equivalent or
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In Pennsylvania Medical Society, th
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to any professional who is alleged
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Since the 2005 amendments, there ha
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ule, but who intentionally ignores
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the original Complaint was delivere
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foreclose all challenges against th
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number of boxes), which was support
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questions of professional judgment
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deviated from any professional stan
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The Third Circuit affirmed the Dist
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claims and cross-claims remain agai
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By an Amendatory Order dated March
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The court acknowledged that there i
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apply and that the trial court misa
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Barbados had enough litigation-spec
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E. Preemption of Vaccine Design Def
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2. Pa. R. Civ. Pro. 1036.1 - Reinst
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Barrick, at *34-35.Furthermore, the
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(b) the utility of the defendant’
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2006). In this case, Plaintiffs bro
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B. Elements of a Cause of Action fo
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decision in Muhammad precluded Mr.
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considered speculative “only if t
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underlying cause of action involved
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In Capital Care Corp., the Superior
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The court found, however, to state
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of reasonable diligence. The standa
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not be set aside. On July 7, 2005,
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complete bar to recovery. Since a l
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On appeal, Plaintiffs claimed that
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In Liggon-Redding, 659 F.3d at 265,
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elieved of those minimum standards
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elevant to the proceedings, the com
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establish professional misconduct b
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Upholding the Superior Court’s Or
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Id.Rejecting revocation and suspens
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order as a sanction under Rule 4019
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{1009912]182
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2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

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