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PA Supreme Court Hears Debate on Ostensible Agency and MCARE Limits on Expert Testimony

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The Supreme Court of Pennsylvania recently heard arguments on whether a hospital can be held vicariously liable for a resident physician who undertakes care of a patient without a prior physician-patient relationship, and whether a nurse employed by the hospital can offer expert testimony regarding causation at the time of trial.

A medical malpractice action was brought against a Philadelphia hospital as well as several physicians and nurses after a patient presented with shortness of breath, rapid breathing and wheezing.  The patient was admitted to the intensive care unit and intubated.  He remained in critical condition, and a feeding tube and tracheostomy were placed several days later by a resident.  Thereafter, bleeding was discovered at the site of the procedure, and a bronchoscopy, repeat intubation and placement of a chest tube were performed.  The patient ultimately died days later. 

The executor of the decedent's estate brought a claim for vicarious liability based on ostensible agency.  The doctrine of ostensible agency provides that a hospital is liable when (1) a patient looks to the hospital rather than the individual physician for care; and (2) the hospital holds out the physician as its employee.  At the close of plaintiff's case, defendants moved for nonsuit on the vicarious liability claim, which was granted.  In ruling on the motion for nonsuit, the trial court noted that plaintiff provided no evidence about the organizational structure of the hospital, the way the physician presented herself to the patient or whether a reasonable patient would believe she was an agent of the hospital.  

In a related claim, the plaintiff argued that a nurse employed by the hospital should be permitted to offer expert testimony regarding another nurse's actions.  A motion in limine filed on behalf of defendants to preclude the nurse's testimony was granted by the trial court. 

The Superior Court found that the trial judge properly granted the motion for nonsuit against all defendants on the vicarious liability claim.  The court found that the plaintiff failed to carry his burden as to the relationship between the physician he alleged was negligent and the hospital.

During oral arguments before the Supreme Court, plaintiff argued that there was evidence to establish that a resident physician within the hospital, who had no prior treatment relationship with the patient, was paged to the patient's room.  Plaintiff argued that this evidence was sufficient to show that the patient would have thought that the resident was an agent of the hospital.  Defendants argued that the circumstances surrounding the resident's involvement were unclear.  They denied allegations of agency and stated that the resident was not an employee of the hospital.  Justice Debra Todd noted a distinction between a medical resident in the hospital who responds to a patient issue and a doctor brought in by the patient who has staff privileges in the hospital.

Regarding the issue of expert testimony, plaintiff argued that the MCARE Act has no applicability to claims against nonphysician health care providers, i.e. a nurse.  However, defendants argued that the testimony was properly precluded as the nurse was not qualified to give an expert opinion regarding the cause of death.  The justices pointed out that plaintiff had multiple theories of liability, which could be detrimental to securing a plaintiff's verdict; however, the plaintiff was willing to accept the risk.

Green v. Pennsylvania Hosp., et al., 96 A.3d 1095 (Pa. Super. Ct. 2014) (aff'd in part, rev'd in part by Green v. Pennsylvania Hosp., et al., 2015 WL 5155730 (Pa. 2015))


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