Green v. Pennsylvania Hospital

30 Pa. D. & C.5th 245
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 15, 2013
DocketNo. 4093-2009
StatusPublished

This text of 30 Pa. D. & C.5th 245 (Green v. Pennsylvania Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Pennsylvania Hospital, 30 Pa. D. & C.5th 245 (Pa. Super. Ct. 2013).

Opinion

DIVITO, J.,

— This is based upon an appeal by Ronald Green as Executor of the Estate of Joseph Fusco (“plaintiff’) from the court’s order entered on August 12, 2012 denying Plaintiff’s Motion for post-trial relief pursuant to Pa.R.C.P. 227.1 (“motion for post-trial relief’). For the reasons that follow, the order by the court denying the motion should be affirmed and the non suit verdicts in favor of defendants Pennsylvania Hospital, et al. (“defendants”) should be affirmed.

I. Background

Decedent plaintiff, Joseph Fusco (“decedent”), was taken to the Emergency Department of Pennsylvania Hospital on December 30, 2008 with complaints of shortness of breath, rapid breathing, and wheezing. Decedent was admitted to the intensive care unit of the hospital due to his symptoms and, after medication failed to ease the symptoms, he was intubated. He remained in [248]*248critical condition due to serious preexisting medical that included circulatory failure, respiratory failure, and an infection overwhelming his system. After being unable to be weaned from the ventilator, on January 9, 2009 a feeding tube and tracheostomy were performed on the decedent.

Following the tracheostomy, bleeding was observed from the site of the procedure, and emergency steps were taken to address the issue, including bronchoscopy, repeat intubation, and placement of chest tubes due to the development of subcutaneous emphysema. Despite these measures, on January 10, 2009. Decedent arrested and after several attempts to resuscitate him, he was declared dead at 6:36 P.M. of that day. The cause of death on his certificate of death noted the immediate causes as cardiac arrest due to chronic obstructive pulmonary disease and pneumonia, and airway obstruction.

Plaintiffs Ronald Green and Peter Fusco, brother of the decedent, filed suit in Philadelphia County in June of 2009, with the trial commencing in June of 2012. Prior to trial both plaintiff and defendants filed several motions in limine, which after oral argument on June 4,2012 resulted in the effective claims being whittled down to a survival claim for damages due to pain and suffering during the approximate one and a half hour time period of resuscitation on January 10, 2009. On June 7, 2012 the court heard arguments on defendants’ motion in limine to preclude the testimony of Kathleen Fleming, an expert witness proffered by the plaintiffs as an “informatics” expert, and the motion was granted. At the close of plaintiff’s case that day, defendants moved for non suit. The plaintiff agreed that non suits should be entered on behalf of nurses Sylvia Aquino and Anthony Giorgio, and after hearing arguments [249]*249from both sides, the court then also granted non suit as to the other defendants, except Nurse Lori Yakish. On June 8, 2012 the court heard arguments regarding the defense counsel motion for Nurse Yakish to be granted non suit, which was granted. Subsequently, plaintiff filed a motion for post-trial relief which was denied on August 21, 2012.

Plaintiff then filed with the appellate court its statement of errors, discussed hereafter.

II. Plaintiffs Matters Complained of upon Appeal

1. Non Suit as to the Vicarious Liability of Defendant Pennsylvania Hospital

Plaintiff complains that the court erred in granting non suit as to defendant Pennsylvania Hospital because of the negligent acts of doctor Nora Malaraise and other individuals. However, at trial the plaintiffs failed to adduce evidence that Dr. Malaraise was an agent of the hospital at the time of the incident. Though plaintiff’s expert. Doctor Peter Salgo, opined that Dr. Malaraise deviated from the standard of care for the decedent, at no point did plaintiff present evidence that Dr. Malaraise was an agent of the hospital other than showing that she treated the decedent in the hospital’s facilities. At all times before and during the trial, however, the Hospital denied that Dr. Malaraise was its agent.

The MCARE Act specifically covers the standards to be demonstrated in medical staff is the agent and/or employee of a hospital. Hospitals may be held vicariously liable for the acts of other health care providers through agency principles only if the evidence shows that, “a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered [250]*250by the hospital or its agents.” MCARE Act. 40 RS. § 1303.516 (a)(1). The Act further holds that “Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1)...” MCARE Act, 40 P.S. § 1303.516(b).

Despite these clear standards as to how vicarious liability of a hospital should be established as to the agency of treating medical personnel in the hospital setting, the plaintiff failed to offer any evidence with which to meet the standard. No staff of the hospital were called as witnesses to testify at trial as to how the agency structure of the hospital was set up regarding ENT physicians, such as Dr. Malaraise, in the hospital’s facilities. Nor was Peter Fusco, decedent’s brother, asked any questions or offered any testimony as to how Dr. Malaraise presented herself as to agency, or whether a reasonable patient would believe she was an agent of the hospital. Though the plaintiff argued that the testimony presented by witnesses Dr. Salgo, Nurse Pierce, and Dr. Glasser established vicarious liability, those witnesses only served to demonstrate that Dr. Malaraise was present and treating patients at the hospital, not that the type of agency relationship existed between her and the hospital that would give rise to it being vicariously liable. Further. Dr. Glasser’s testimony actually highlighted the ambiguity of the relationship between the hospital and medical staff working therein, as it was the plaintiff, not the defendants, that specifically elicited testimony from Dr. Glasser that though he provided care at the hospital, he was employed by an entirely distinct entity and was not its agent. (N.T. 6/6/12 5:15-25,6:1-21).

[251]*251Given that plaintiff elicited no testimony as to the actual substance of the relationship between Dr. Malaraise and the hospital, that the hospital denied an agency relationship throughout the course of the trial, the plaintiff’s failure to elicit any testimony as to whether a reasonable person in the decedent’s position would have though Dr. Malaraise was an agent of the hospital, and plaintiff’s own presentation of evidence that doctors and nurses at the hospital were, at least in some cases, agents of other entities, the court correctly granted non suit as to Pennsylvania hospital as plaintiff had failed to establish any basis on which to conclude that Dr. Malaraise or other medical personnel were employed by or agents of the hospital.

2. Non Suit as to Nurse Lori Yakish

In order to establish liability in a medical malpractice case, proving causation that the failure to provide the requisite standard of care was the cause in fact of the injury or death is necessary. Plaintiff failed to demonstrate that any action taken by or attributable to Nurse Yakish was the cause of decedent’s death, a non suit was thus granted as to Yakish.

Testimony elicited from Dr.

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Related

Freed v. Geisinger Medical Center
971 A.2d 1202 (Supreme Court of Pennsylvania, 2009)

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Bluebook (online)
30 Pa. D. & C.5th 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-pennsylvania-hospital-pactcomplphilad-2013.