Mazzarino v. Kushner

36 Pa. D. & C.4th 517, 1996 Pa. Dist. & Cnty. Dec. LEXIS 50
CourtPennsylvania Court of Common Pleas, York County
DecidedDecember 30, 1996
Docketno. 89-SU-00990-01 consolidated with 89-SU-02073-01
StatusPublished

This text of 36 Pa. D. & C.4th 517 (Mazzarino v. Kushner) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzarino v. Kushner, 36 Pa. D. & C.4th 517, 1996 Pa. Dist. & Cnty. Dec. LEXIS 50 (Pa. Super. Ct. 1996).

Opinion

KENNEDY, J.,

Defendant York Hospital has moved for summary judgment in the above captioned action pursuant to Pennsylvania Rule of Civil Procedure 1035. This court has reviewed the parties’ submissions and pleadings.1 For the reasons set forth herein, we grant die defendant’s motion for summary judgment, in part, and deny the defendant’s motion for summary judgment, in part.

PROCEDURAL HISTORY

The plaintiff initiated this action against the defendant physicians by writ of summons on March 27, 1989. [520]*520On May 8, 1989, the plaintiff filed two complaints: one against the defendant physicians and the other against York Hospital. Both complaints involve several medical malpractice claims arising out of a surgical procedure performed on the plaintiff at York Hospital. The plaintiff filed an amended complaint against the defendant physicians on June 5, 1989. By order of this court dated August 16, 1993, the two actions were consolidated.

Upon the plaintiff’s request, a pretrial conference was held on August 30,1996. We certified the plaintiff’s action as ready for trial on September 5, 1996. Also on that date, we issued a pretrial order directing the plaintiff to serve the defendants with any amended medical reports by October 30, 1996. Defendants Dr. Turnamian and York Hospital filed separate motions for summary judgment on September 20,1996. On October 17, 1996, the plaintiff served the defendants with the amended medical reports of Steven G. Bernstein M.D. and Peter L.H. Tynberg M.D.

FACTS

The plaintiff first visited the gynecology clinic at York Hospital for a physical examination on March 2, 1987. Diagnosed with a suspected ovarian tumor, the plaintiff underwent a hysterectomy on May 11,1987. The hysterectomy was performed by Richard Tumamian M.D., Joseph Carter M.D., and Kathleen Morris M.D. The plaintiff experienced surgical and postoperative complications necessitating additional medical treatment. During the recuperative period in which the plaintiff’s complications arose, Dr. Kushner provided her with radiology services and Dr. Duncan provided her with urology services.

[521]*521In her complaint, the plaintiff alleges, in relevant part, that York Hospital is liable to plaintiff on two theories of liability: one, a corporate theory of liability based on her premature discharge from York Hospital and, two, a theory of vicarious liability, based on the alleged negligence of each of the defendant physicians as agents, servants, or employees of the defendant. In support of these claims, the plaintiff has identified four expert witnesses expected to testify at trial and produced a medical report from each expert. The witnesses include Arnold C. Friedman M.D., Steven G. Bernstein M.D., Peter L.H. Tynberg M.D., and Kenneth G. Barron M.D.

ANALYSIS

In its motion for summary judgment, the defendant argues that it is entitled to summary judgment on the plaintiff’s corporate negligence claim and on the plaintiff’s vicarious liability claims based on the alleged negligence of Drs. Kushner, Duncan, and Tumamian.

Any party may move for summary judgment, as a matter of law,

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

[522]*522In response to a motion for summary judgment, the non-moving party may not rest upon the mere allegations or denials in the pleadings but must identify

“(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa.R.C.P. 1035.3.

Even though when uncontradicted, the testimony of the moving party or his witnesses is not ordinarily sufficient to demonstrate the absence of a genuine issue of material fact, the non-moving party must raise at least the defense that the credibility of the defendant’s witnesses presents a genuine issue of material fact in response to a motion for summary judgment. Pa.R.C.P. 1035.2 cmt., 1035.3 note. When deciding a motion for summary judgment, the court must construe the factual record in a light most favorable to the non-moving party, resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and enter summary judgment only in cases where the right is clear and free from doubt. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). Summary judgment may be granted in whole or in part. Pa.R.C.P. 1035.2.

As to the plaintiff’s claim of corporate negligence, the defendant contends that the plaintiff failed to support her claim with expert medical testimony and, alternatively, that even if the plaintiff’s allegations of corporate negligence were supported by expert testimony [523]*523they would be insufficient to impose liability on York Hospital as a matter of law.

“Corporate negligence is a doctrine under which [a] hospital is hable if it fails to uphold the proper standard of care owed [to its] patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to [its] patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.” Thompson v. Nason Hospital, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991). (footnote omitted)

The nondelegable duties that a hospital owes to its patients generally fall into one of four categories: (1) use of reasonable care in the maintenance of safe and adequate facilities and equipment; (2) selection and retention of competent physicians; (3) oversight of all medical practices within its walls; or (4) the formulation, adoption and enforcement of adequate rules and policies to ensure quality patient care. Id.

In order to prevail, a plaintiff must demonstrate “that the hospital had actual or constructive knowledge of the defect or procedures which created the harm” and that the hospital’s negligence was a substantial factor in bringing about the harm to the plaintiff’s injuries. Id. at 341, 591 A.2d at 708. Additionally, a plaintiff must show that the hospital itself was negligent, not merely that an individual for whom the hospital is responsible committed an individual act of negligence. Edwards v. Brandywine Hospital, 438 Pa. Super. 673, 683, 652 A.2d 1382, 1386 (1995).

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Bluebook (online)
36 Pa. D. & C.4th 517, 1996 Pa. Dist. & Cnty. Dec. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzarino-v-kushner-pactcomplyork-1996.