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 www.Pexels.com.

Judge Nealon Reiterates the Law of Identifying Agents of Hospital in Med Mal Complaints

In the case of Champi v. Geisinger Community Medical Center, No. 19-CV-1780(C.P. Lacka. Co. Feb. 20, 2020 Nealon, J.), the court denied Preliminary Objections filed by a Defendant hospital in this medical malpractice action.

The Defendants were arguing that, where the Plaintiff alleged negligent care at the Defendant hospital’s Scranton and Wilkes-Barre campuses but neglected to identify by name and with specificity which alleged agents who worked at the hospital were negligent, the Defendant was entitled to a dismissal.

This argument was rejected by the court under recent Pennsylvania Superior Court precedent in which it was held that a Plaintiff asserting a vicarious liability claim need not allege the identity of the agents by name.

As such, the court overruled the Defendant’s Preliminary Objections and directed the hospital to seek the requested information by way of pre-trial discovery efforts.

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

Allegations of Liability of Unnamed Agents, Recklessness, and Punitive Damages Allowed to Proceed in a Podiatric Malpractice Action

In the case of Latka v. Rieder, No. 2019-CV-2078 (C.P. Lacka. Co. July 22, 2019 Nealon, J.), the court addressed Preliminary Objections filed in a podiatric malpractice case.  The Defendant sought to strike the agency allegations for failing to identify the actual or ostensible agents by name along with other details.  The Preliminary Objections were also asserted against the Plaintiff’s allegations of recklessness and reckless indifference along with the claim for punitive damages.

According to the Opinion, the Plaintiff developed an infection after a foot surgery performed by the Defendant.   Treatment of the infection included a partial amputation.  

The Plaintiff sued the podiatrist in a malpractice action and also asserted claims against “the agents, ostensible agents, servants, workers and/or employees” of the podiatrist.   Additionally, in her prayer for relief, the Plaintiff sought to recover punitive damages based upon allegations of recklessness.  

The Defendant podiatrist filed Preliminary Objections seeking to strike the Plaintiff’s agency allegations, recklessness allegations and punitive damages claims as lacking sufficient factual specificity.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the law establishing Pennsylvania as a fact-pleadings state but not requiring that all evidence in support of a claim be set forth in the Complaint.

The court noted that , in the context of Preliminary Objections asserting the lack of sufficient specificity, the test is whether the Defendant has been provided with adequate notice of the claim against which it must defend.  

With regards to the Plaintiff’s general agency complaints against unnamed agents and employees of the named Defendant, the court noted that, under current Pennsylvania appellate law, the failure to identify a Defendant’s agent by name, or the designation of those individuals as a unit, does not justify striking agency allegations in a Complaint.  Judge Nealon also noted that the Defendant’s efforts to strike agency claims for failing to identify the actual or ostensible agents by name in medical malpractice actions has been consistently rejected in Lackawanna County (citing numerous cases).  

In the end, the court noted that the names and responsibilities of the Defendant’s alleged agents can be ascertained during discovery. As such, the Preliminary Objections in this regard were denied.

Relative to the Plaintiff’s allegations of recklessness and the Plaintiff’s punitive damages claims, the court emphasized that punitive damages are only appropriate when an individual’s actions are of such outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

The court noted that wanton or reckless conduct covers instances where the actor has intentionally done an act or an unreasonable character in disregard of a risk known to him or her or so obvious that he or she must be taken to have been aware of it, and so great as to make it highly probable that harm would result.   The court otherwise noted that allegations of merely negligence or even gross negligence, do not suffice to support a punitive damages claim.   

Judge Nealon turned to Pa. R.C.P. 1019(b), along with case law construing that Rule, to support a conclusion that recklessness is a condition of the mind that may be averred generally in pleadings in appropriate circumstances.

Judge Nealon went on to cite numerous Lackawanna County cases in which Preliminary Objections seeking to dismiss punitive damages claims on the basis of factual insufficiency have been uniformly rejected except in cases where the Complaint generally alleged willfulness, wantonness, or recklessness without supporting facts.   

After a review of the allegations in the Complaint in this matter, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s allegations of reckless conduct and the Plaintiff’s related claim for punitive damages. 

The court noted that the Defendant retained the right to challenge the validity of these claims by way of a Motion for Summary Judgment.   

The court additionally emphasized that the Plaintiff may not obtain any financial worth discovery from the Defendant doctor under Pa. R.C.P. 4003.7 unless and until the Plaintiff demonstrated a prima facie right to recover punitive damages.  

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

Plaintiff Need Not Name Every Actor in a Med Mal Complaint

In the Lycoming County Court of Common Pleas decision in the case of Lutz v. Williamsport Hospital, No. 18-CV-0384 (C.P. Lycoming Co. July 5, 2018 Linhardt, J.), the court reaffirmed the well-settled principle that a Plaintiff was not required to specifically name every potential actor involved in the Plaintiff’s care at a defendant hospital when pleading vicarious liability claims against the hospital.  

As such, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s vicarious liability claims in this matter.  

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

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (Nov. 20, 2018). 

Summary Judgment Granted on Medical Malpractice Vicarious Liability/Ostensible Agency Claims

In the case of Mills v. Green, No. 2011-CV-5496 (C.P. Lacka. Co. Nov. 9, 2018 Nealon, J.), the court addressed the issues of vicarious liability and ostensible agency relationships in a medical malpractice claim.  

According to the Opinion, the Plaintiff in this case filed a medical malpractice action alleging negligence by a gynecologist in connection with surgery.   The only claim in this matter against the Co-Defendant hospital was premised on its vicarious liability for the actions of the gynecologist who was allegedly acting as an ostensible agent of the hospital.  

This decision arose out of the Defendant hospital filing a Motion for Summary Judgment on the grounds that the Plaintiff was unable to produce sufficient evidence to establish an ostensible agency relationship between the gynecologist and the hospital.  

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon reviewed the pertinent law and noted that, to impose vicarious liability upon a hospital based upon ostensible agency allegations, a Plaintiff must show that either (1) a reasonably prudent patient would have been justified in believing that the surgery was being performed by the hospital or its agent, or (2) the surgery was advertised or represented to the Plaintiff as being rendered by the hospital or its agent.   

The court reviewed the record before it, which indicated that most of the Plaintiff’s contact was with the gynecologist and/or the gynecologist’s office, as opposed to the hospital.

Accordingly, Judge Nealon ruled that, even when the record is examined in the light most favorable to the Plaintiff as required by the motion for summary judgment standard of review, the record was devoid of evidence sufficient to sustain a finding that a reasonably prudent patient would have been justified in believing that the surgery was being performed by the hospital or its agent.   The records also found to lack any evidence that the hospital advertised or otherwise represented the surgery as being rendered by the hospital or its agent.  

As there were no genuine issues of material fact regarding Plaintiff’s ostensible agency claim to be decided by a jury with regard to the Plaintiff’s ostensible agency claim, the hospital’s Motion for Summary Judgment was granted.  

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

Preliminary Objections Against Agency Allegations in Medical Malpractice Complaint Denied

In the case of Chairge v. Geisinger Community Medical Center, No. 2017 - CV - 1851 (C.P. Lacka. Co. Sept. 22, 2017 Nealon, J.), the court addressed preliminary objections in a medical malpractice action in which the defendants asserted that a plaintiff's agency allegations must be stricken unless the Complaint identifies the defendants' actual or ostensible agents by name, sets forth those agents' authority, and avers how the agents' alleged conduct fell within the scope of that authority or was otherwise ratified by the defendant principal.

The preliminary objections were denied after the court emphasized that the Pennsylvania Superior Court ruled three years ago in the case of Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014) that a plaintiff is not barred from asserting a vicarious liability claim against a defendant simply because the alleged agent was not named in the Complaint.

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

Several Medical Malpractice Issues Addressed by Judge Nealon of Lackawanna County

In the case of Hughes v. Wilkes-Barre Hospital Company, N. 2016-CV-6463 (C.P. Lacka. Co. Aug. 14, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues in a medical malpractice action including issues of allegedly improper venue, corporate negligence theory, agency law questions, and punitive damages issues. 

 

Of note, the court found the venue was proper in Lackawanna County based upon the existence of proper venue over the Lackawanna County Hospital and given the Plaintiffs’ assertion of joint and several liability against all named Defendants.  

 

Judge Terrence R. Nealon
Lackawanna County

The court additionally found that the Plaintiff stated valid causes of action for corporate negligence against the hospital Defendants along with valid claims for vicarious liability based upon the ostensible agency standard set forth in the MCARE Act.  

 

The court also reviewed the validity of claims of punitive damages pled in the case in form of allegations of recklessness and wanton conduct.  

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

 

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.  

Anyone wishing to review this case may click this LINK.