2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

licensed professionals for whom the hospital is responsible. See id.; see also Stroud v. AbingtonMem’l Hosp., 546 F. Supp. 2d 238 (E.D. Pa. 2008) (holding proper Certificate of Merit allegingdirect corporate negligence must be filed in support of corporate negligence claim, subject tocertain equitable considerations).Of note, in Everett v. Donate, No. 3:CV-08-1243, 2010 WL 1052944, *3 (M.D. Pa. Mar.22, 2010), affirmed 397 Fed.Appx. 744 (3d Cir. 2010), the District Court addressed whether itwas required to apply Rule 1042.3 when it was not sitting in diversity and was instead addressingpendent state claims of negligence. The court cited to Abdulhay v. Bethlehem Medical Arts,2005 WL 2416012 (E.D. Pa. Sept. 28, 2005), and held that under the Erie doctrine, “federalcourts must apply [Rule 1042.3] to state law claims arising under pendent jurisdiction.” Id. Thecourt also noted that plaintiff’s incarceration or pro se status is not a viable excuse for plaintiff’sfailure to comply with Rule 1042.3. Id. at *4. The court further noted that Rule 1042.3 does notrequire that the moving party allege it suffered prejudice by plaintiff’s failure to file a certificateof merit. Id.2. Limitations on Corporate Liability(a)Informed ConsentIn Valles v. Albert Einstein Medical Center, 805 A. 2d 1232 (Pa. 2002), Plaintiff soughtto impose vicarious liability on Defendant hospital for the alleged failure of one of its employeephysiciansto obtain informed consent in connection with both the performance of an aortogramand the placement of a catheter. The trial court had granted summary judgment in favor ofDefendant physician and hospital, and the Superior Court had affirmed.The Supreme Court ruled that a battery based on lack of informed consent was not a typeof conduct that occurred within the scope of employment, and held “that as a matter of law, amedical facility lacks the control over the manner in which the physician performs his duty toobtain informed consent so as to render the facility vicariously liable.” Consequently, the courtheld bluntly that “a medical facility cannot be held vicariously liable for a physician’s failure toobtain informed consent.”The Supreme Court affirmed the Order of the Superior Court, which had affirmed thetrial court’s grant of summary judgment in favor of Defendants.The Valles court noted, however, that in cases where the hospital specifically assumes theduty to obtain a patient’s informed consent, it will be subject to direct liability. See Friter v.Iolab Corp., 607 A.2d 1111 (Pa. Super. Ct. 1992) (finding hospital liable for the lack of informedconsent when it was involved in a clinical investigation on behalf of the Food and DrugAdministration because according to federal regulations, the hospital was required to obtain theinformed consent of all participants prior to beginning the study).In Stalsitz v. The Allentown Hospital, 814 A.2d 766 (Pa. Super. Ct. 2002), appeal denied,854 A.2d 968 (Pa. 2004), the Superior Court, following Valles, stated that the duty to obtain apatient’s informed consent is generally limited to the surgeon who performed the operativeprocedure. Since the hospital cannot maintain control over the manner in which the physician70