2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Grane established and administered a quality assurance program to ensurethe nursing facility provided quality nursing care to its residents. Part ofthis program included establishing an operating budget for Highland,which in turn would staff the nursing facility according to Grane’s budgetrecommendations. Additionally, employees of Grane worked at thenursing facility and oversaw the daily operation of the nursing staff andthe administration of the facility. Grane hired the RNs and appointed thedirectors of nursing. Further, any money remaining in Highland’s bankaccount at the end of the month was transferred to Grane. Grane’sinvolvement with the operation of the nursing facility and its sway overHighland garnered them control over the total health care of the residentssimilar to the hospital, HMO, and medical professional corporation….Id.The Superior Court concluded that issues of staffing fall within the four (4) Thompsonduties for which a corporation may be held directly liable. Id. at *7. The court explained,Id.[o]ne of the duties expressly imposed under Thompson is to formulate,adopt, and enforce adequate rules and policies to ensure quality care forpatients. If a health care provider fails to hire adequate staff to performthe functions necessary to properly administer to a patient’s needs, it hasnot enforced adequate policies to ensure quality care.With regard to expert testimony, the “[p]laintiff must produce expert testimony toestablish that the hospital deviated from an accepted standard of care and that the deviation was asubstantial factor in causing the harm to the plaintiff.” Id. at *18. The court noted that theplaintiff established breach and causation by expert testimony from a nurse practitioner. Id.Similarly, the Eastern District of Pennsylvania permitted a corporate liability claim to bepursued against MHM Correctional Services, Inc. (“MHM”), a corporation which providedmental health services to prisoners. Zheng v. Palakovich, 2010 WL 1508521 (M.D. Pa. Apr. 12,2010).By way of background, the decedent was an inmate at State Correctional Institute atSmithfield. Id. at *1. Defendant MHM was a private company that was contracted to providemental health services to the Smithfield inmates. Id. The decedent was diagnosed as severelymentally disabled and required continued psychiatrist treatment. Id. Over the course ofapproximately one (1) year, the decedent submitted numerous requests seeking a mental healthevaluation, follow-up care with a psychiatrist, as well as psychotropic medications which hepreviously had been taking for years but MHM discontinued. Id. at *1-2. Despite expressingconcern that he may harm himself, many of these requests were ignored. Id. Moreover,although apparently treated as the decedent “acting out”, on two (2) occasions, the decedent67