Judge Nealon Addresses Vicarious Liability Based Upon Ostensible Agency Claim In Med Mal Case

In his recent decision in the case of Oscarson v. Moses Taylor Hospital, No. 2013-CV-1523 (C.P. Lacka. Co. Feb. 3, 2016 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant hospital’s Motion for Summary Judgment on the Plaintiff’s ostensible agency theory of liability for an independent contractor physician.  

In this medical malpractice action, the Plaintiff alleged a negligent performance and interpretation of a needle biopsy at the Defendant-hospital by the Defendant-pathologist.   The Plaintiff asserted a claim of a vicarious liability on the hospital.  This claim was based upon the assertion that the independent contractor pathologist was an ostensible agent of the hospital at the time of the biopsy.

The matter came before the court on the hospital Defendants Motion for Summary Judgment.  

Judge Nealon noted that, under 40 P.S. §1303.516, a hospital may be vicariously liable for the negligence of an independent contractor physician based upon ostensible agency if the evidence shows that either (1) a reasonably prudent person in the patient’s position would be justified in believing that the care in question was being rendered by the hospital or its agent, or (2) the care at issue was advertised or otherwise represented to the patient as being rendered by the hospital or its agent. 

Reviewing the records before him, Judge Nealon noted that there was evidence that the Plaintiff was advised by his treating surgeon that he was being referred to the hospital, not any particular pathologist, for the needle biopsy.  Moreover, the Plaintiff was contacted by the hospital’s outpatient department, as opposed to the pathologist’s office, for the scheduling of the biopsy procedure at the hospital.  

The record also established that, prior to the date of the biopsy, the Plaintiff had never met or been treated by the pathologist.  The only care that the Plaintiff received from the pathologist took place at the Defendant-hospital.   Judge Nealon also noted that the pathologist never informed the Plaintiff of his independent contractor status.   The Plaintiff additionally testified during his deposition that he thought that the pathologist was indeed a hospital employee.

As such, viewing the records in a light most favorable to the Plaintiff as the non-moving party as required by the standard of review for motions for summary judgment, Judge Nealon ruled that it could not be declared, as a matter of law, that a reasonably prudent person in the position of the Plaintiff would not have been justified in believing that the needle biopsy was being performed by the hospital’s agent.  As such, the hospital’s Motion for Summary Judgment was denied.  

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