Monday, June 21, 2021

Claim of Ostensible Agency Allowed to Proceed to Jury in Med Mal Case

In the case of Cicchella v. Jaditz, No. 19-CV-4086 (C.P. Lacka. Co. May 26, 2021 Nealon, J.), the court denied a hospital’s Motion for Summary Judgment seeking to dismiss the Plaintiff’s claim against it asserting ostensible agency and liability for the negligence of its treating doctor and assisting nurse practitioner. 

The hospital asserted that the evidence was insufficient as a matter of law to establish ostensible agency under §516 of the Medical Care Availability and Reduction of Error (MCARE) Act for the claimed negligence that allegedly occurred only on an outpatient basis after the decedent had been discharged from the hospital.

The Plaintiff countered with the argument that her medical expert had pointed to negligence by the treating doctor that began in the hospital setting at which point that treating provider appeared to be the hospital’s agent. The Plaintiff also asserted that the alleged negligence continued thereafter on an outpatient basis. It was the Plaintiff’s argument that the question of the existence of an ostensible agency relationship should be left to the jury.

After reviewing §516 of the MCARE Act, under which the standards by which a hospital may be held vicariously liable for the negligence of an independent contractor physician based upon ostensible agency, and applying those standards to the record before the court, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas found that there was evidence upon which a jury could conclude that the treating medical provider at issue was an agent of the hospital at the time the treatment was provided. The court also noted that the Plaintiff’s medical expert for trial would offer testimony in support of this allegation.

Overall, the court found that, viewing the record in the light most favorable to the Plaintiff under the required Motion for Summary Judgment standard of review, it could not be stated, as a matter of law, that a reasonably prudent person in the decedent’s position would not have been warranted in believing that the allegedly negligent care by the medical provider at issue was being furnished by the hospital’s agent, or that the hospital did not advertise or represent that medical provider’s care as being rendered by its agent. As such, the hospital’s Motion for Summary Judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Karolina Grabowska from

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