2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Even more recently, our Superior Court held that the doctrine of corporate negligenceapplies to nursing homes. In Scampone v. Grane Healthcare Co., 2010 PA Super 124, 2010 Pa.Super. LEXIS 1486 (Pa. Super. Ct. 2010), reargument denied, 2010 Pa. Super. LEXIS 3250 (Pa.Super. Ct. Sept. 24, 2010), a decedent’s executor brought suit for the allegedly inadequate carereceived by the decedent at a nursing home facility. The Superior Court reasoned that nursinghomes are sufficiently akin to hospitals, to support the application of the doctrine of corporatenegligence. The Superior Court wrote:Herein, we conclude that a nursing home is analogous to a hospitalin the level of its involvement in a patient’s overall health care.Except for the hiring of doctors, a nursing home providescomprehensive and continual physical care for its patients. Anursing home is akin to a hospital rather than a physician’s office,and the doctrine of corporate liability was appropriately applied inthis case. Plaintiff’s decedent was a full-time resident of thenursing home, and with the exception of occasional visits from herown doctor, Highland oversaw her care twenty-four hours a day,seven days a week. In addition, whenever a patient entered thefacility, a Highland nurse assessed the patient and developed theappropriate health care plan for that patient, includingrehabilitative services. Highland was responsible for coordinatingnearly all of the health care of its patients. Even though Highlanddid not have staff physicians, it was responsible for ensuring thatall doctor-ordered testing was performed. Clearly, the degree ofinvolvement in the care of patients of skilled nursing homefacilities is markedly similar to that of a hospital and bears littleresemblance to the sporadic care offered on an out-patient basis ina physician’s office. Hence, we hold that the trial court correctlyconcluded a nursing home could be found liable under a corporatenegligence theory.Id., 2010 Pa. Super. LEXIS 1486 at *21. The Court also reversed the grant of non-suit againstthe management company of the nursing home, finding that it too, could be held liable under thedoctrine of corporate negligence. Id., 2010 Pa. Super. LEXIS 1486 at *71 (“Grane is alsosubject to corporate liability for the understaffing based upon the extent of its corporate controlover Highland”). Moreover, it is of interest to note that the Superior Court found that a corporatenegligence claim can be based on inadequate staffing levels. Id. at *22 (“If a health careprovider fails to hire adequate staff to perform the functions necessary to properly administer to apatient’s needs, it has not enforced adequate policies to ensure quality care.”).(d)HMO LiabilityIn Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998), the Superior Courtconsidered whether the corporate negligence doctrine extends to a Health MaintenanceOrganization (“HMO”). In Shannon, Plaintiffs alleged negligence against an obstetrician forfailing to diagnose and treat signs of pre-term labor. Plaintiffs asserted two grounds of liabilityagainst their HMO: 1) vicarious liability for the negligence of its nursing staff in failing to74