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PA Supreme Court to Test Ostensible Agency & MCARE Requirements for Non-Physician Experts

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Last month, the Pennsylvania Supreme Court granted allocatur to a case questioning whether a jury should be allowed to consider a vicarious liability claim based on a theory of ostensible agency where a physician provides emergency treatment at the behest of a hospital to a patient who was not previously her own patient.  Additionally, the justices will decide whether the Medical Care Availability and Reduction of Error (“MCARE”) Act prevents nurse experts from offering causation testimony

In the case, Green v. Pennsylvania Hospital, plaintiff’s decedent presented to the emergency department with complaints of shortness of breath, rapid breathing, and wheezing, and he was admitted to the ICU.  The patient also had several underlying medical conditions, including circulatory failure, respiratory failure, and an infection.  After medication failed to alleviate his symptoms, the patient was intubated and he remained in critical condition.  Several days later, the patient was placed on a feeding tube and received a tracheostomy.  The tracheostomy site began to bleed and an emergency team was called to address the issue by performing a bronchoscopy, repeat intubation, and placing chest tubes for subcutaneous emphysema.  Despite their efforts, the patient arrested and died.  The executor of the patient’s estate sued the hospital and several nurses and physicians who treated the patient, alleging that their combined efforts led to the patient’s death.  The executor did not sue an ear, nose, and throat (“ENT”) physician who responded to the emergency and who had privileges at the hospital, but who was not a hospital employee. 

At trial, plaintiff attempted to show that the non-party ENT physician was negligent and that the hospital was vicariously liable for her actions because she was an ostensible agent of the hospital.  Ostensible agency is found when a person who may not necessarily be an agent or employee would reasonably be believed to be an employee of the hospital.  To prove ostensible agency under the MCARE Act, a plaintiff must demonstrate that a reasonably prudent person in the patient’s position would be justified in believing that the care in question was rendered by the hospital.  If so, the hospital would be vicariously liable for that physician’s negligent actions.  Here, the trial court found that the plaintiff failed to meet his burden because he did not elicit any testimony regarding the organizational structure of the hospital or the way that the ENT physician presented herself to the decedent, who was unconscious at the time.  Instead, the trial testimony merely demonstrated that the plaintiff and the decedent’s brother could not recall who treated the patient and that they only saw “shadows of people.”  Accordingly, the trial court entered nonsuit against the ENT physician. 

The trial court also entered nonsuit against one of the nurse defendants because the plaintiff’s nursing expert had been precluded based on the MCARE Act’s requirements for expert testimony.  Although plaintiff attempted to stretch a footnote caveat found in the 2012 case Freed v. Geisinger Medical Center regarding trial court discretion to allow nonphysician experts to provide medical causation testimony, the trial court ruled that the MCARE Act required an expert with a medical license to opine as to the medical causation of an alleged harm.  Thus, the nurse was precluded from offering causation testimony as to the decedent’s cause of death. 

On appeal, a split Superior Court authored an opinion in January of this year upholding the trial court’s findings.  In writing for the majority, Senior Judge William H. Platt stated that, “Ultimately, viewing the evidence and all reasonable inferences arising from it in the light most favorable to appellant, a jury could not reasonably conclude that the elements of the cause of action had been established where appellant failed to adduce any evidence” suggesting that the ENT physician worked for the hospital when she was not a hospital employee.  President Judge Susan Peikes Gantman, however, dissented as she believed that this question should be decided by a jury.  She explained that, when looking at the facts in a light favoring the appellant, the record demonstrated that the ENT physician worked as part of an emergency response team set into action by the hospital.  A jury would therefore be properly equipped to decide whether a reasonably prudent person would believe that the ENT physician, as past of the emergency team, acted on behalf of the hospital.

As for the discretion to permit the nurse’s causation testimony, Judge Platt stated that the plaintiff misconstrued the MCARE Act’s requirements and that permitting a nurse to testify about causation—even as it applied to the nurse defendants only—where the indivisible treatment was provided by a team would have created an “anomalous result.”  Judge Gantman concurred with this conclusion.  Now, the plaintiff will have his theories heard by the Pennsylvania Supreme Court to further define these issues for future lawsuits.


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