Legal Report
W
When is a physician
an ‘agent’ of a hospital?
hen a patient dies unexpectedly
in a hospital setting, and there
may be some indication of negligence
by a physician, plaintiffs’ lawyers try
to target as many deep pockets as
possible. Not only will they sue the
physician responsible for the patient’s
care, but increasingly they also will sue
the hospital itself. This is even more
likely if the lawyer failed to identify and
name the responsible physician within
the two-year statute of limitations. If
the physician is directly employed by
the hospital, there could be separate
liability under the doctrine of respondeat superior (Latin for “let the master
answer”) which makes an employer responsible for the actions of its employees performed within the scope of their
employment. But what happens when
the physician is not an employee?
A recent Pennsylvania Supreme
Court case overturned a lower court
decision and held that a hospital could
be separately liable for medical errors
made by a non-employed physician
staff member who was called to
respond to a medical crisis. In Green
v. Pennsylvania Hospital, the patient,
Joseph Fusco, came to the hospital’s
emergency department with shortness
of breath, rapid breathing and wheezing. He spent 10 days in the ICU on a
ventilator. In an effort to wean Fusco
from the ventilator, he was given a
tracheotomy. Later that day, a nurse
noticed he was bleeding from the tracheotomy site and an emergency team
30
William H.
Maruca,
Esq.
was called to attempt to identify the
cause and restore his airway. Among
the team was an independent otolaryngologist, Dr. Nora Malaisrie, who
allegedly misplaced a breathing tube
into his thorax instead of his trachea.
The error was corrected, but not in time
to save Fusco.
Fusco’s estate brought a malpractice suit against the hospital, the nurse
and the anesthesiologist, but not Dr.
Malaisrie, the ear, nose and throat
(ENT) specialist. Court filings indicate
that the estate’s medical experts did
not identify Dr. Malaisrie’s negligence
as the cause of Fusco’s injuries until
after the statute of limitations had expired, which is the reason Dr. Malaisrie
was not named individually as a defendant. As a result, the estate sought to
hold the hospital vicariously liable for
Dr. Malaisrie’s alleged negligence. The
trial court tossed the vicarious liability
count, and concluded that no reasonably prudent person in Fusco’s position
would be justified in believing that the
care he was receiving from Dr. Malaisrie was being rendered by the hospital
or its agents. This holding was upheld
by the Superior Court, leading to the
appeal to the state Supreme Court.
This counter-intuitive result was
based on an interpretation of the Pennsylvania Mcare Act, which the state
Supreme Court has rejected in favor
of a more common-sense approach.
The Mcare Act states that a hospital
may be held vicariously liable for the
acts of another health care provider
through principles of ostensible agency
only if the evidence shows that “(1)
a reasonably prudent person in the
patient’s position would be justified in
the belief that the care in question was
being rendered by the hospital or its
agents; or (2) the care in question was
advertised or otherwise represented
to the patient as care being rendered
by the hospital or its agents.” The law
specifically states that evidence that
a physician holds staff privileges at a
hospital shall be insufficient alone to
establish vicarious liability.
The lower courts placed the burden
of proving “agency” on the plaintiffs.
The trial court noted that the estate did
not present any witnesses to testify
regarding “how the agency structure of
the hospital was set up regarding ENT
physicians . . . in the Hospital’s facilities,” and did not present any testimony
“as to how Dr. Malaisrie presented
herself as to agency, or whether a
reasonable patient would believe she
was an agent of the hospital.”
The Pennsylvania Supreme Court
took a different approach. Citing its
own opinion in the landmark case of
Thompson v. Nason Hospital (which
Bulletin / January 2016
Legal Report
is well-known for establishing hospital
liability for negligent credentialing), the
court quoted: “hospitals have evolved
into highly sophisticated corporations
operating primarily on a fee-for-service
basis. The corporate hospital of today
has assumed the role of a comprehensive health center with responsibility
for arranging and coordinating the total
health care of its patients.”
The Supreme Court rejected the
hospital’s reliance on the limitations of
the Mcare Act and concluded that there
was sufficient evidence to create a jury
question concerning whether a reasonably prudent person in Fusco’s position
would be justified in the belief that Dr.
Malaisrie was acting as the hospital’s
agent when she provided care to him.
The court relied in part on the estate’s
contention that Dr. Malaisrie first
became involved in treating Fusco as
part of an emergency response team at
the hospital; Dr. Malaisrie had no prior
doctor/patient relationship with Fusco;
and Dr. Malaisrie rendered emergency
treatment to Fusco at the request of
the hospital, and not at the request of
Fusco or his family.
The hospital did not dispute that
upon discovering unexplained bleeding, the nurse (a hospital employee)
paged anesthesia and ENT to come to
the ICU. In such situations, the Supreme Court held that when a hospital
patient experiences an acute medical
emergency, and an attending nurse or
other medical staff issues an emergen-
Responding
to an
Industry in
Transition
cy request or page for additional help, it
is more than reasonable for the patient,
who is in the throes of medical distress,
to believe that such emergency care
is being rendered by the hospital or its
agents, and that the determination of
whether there is an agency relationship
should be for the jury to decide.
Notably, the Pennsylvania Medical
Society (PAMED) and the Pennsylvania Defense Institute filed a joint amicus brief, and the Hospital & Healthsystem Association of Pennsylvania (HAP)
filed a separate amicus (“friend of the
court”) brief, in support of the hospital,
to no avail. While the Green decision
appears to extend vicarious liability to
Continued on Page 33
Fox Rothschild’s Health Law Practice reflects
an intimate knowledge of the special needs,
circumstances and sensitivities of physicians
in the constantly changing world of health care.
With significant experience and a comprehensive,
proactive approach to issues, we successfully meet
the challenges faced by health care providers in
this competitive, highly regulated environment.
After all, we’re not your ordinary
health care attorneys.
Seth I. Corbin
412.394.5530
[email protected]
Edward J. Kabala
412.394.5599
[email protected]
William H. Maruca
412.394.5575
[email protected]
William L. Stang
412.394.5522
[email protected]
Michael G. Wiethorn
412.394.5537
[email protected]
BNY Mellon Center | 500 Grant Street, Suite 2500 | Pittsburgh, PA 15219 | 412.391.1334 | www.foxrothschild.com
Visit our HIPAA, HITECH & HIT Blog at http://hipaahealthlaw.foxrothschild.com
Bulletin / January 2016
31
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Financial Health
Disappointed investors dump their shares and switch to
new funds and managers who also subsequently underperform. Repeating the cycle increases transaction costs
and capital gains taxes while lowering returns.
The goal of every prudent investor should be to
achieve financial security rather than beating others or
the market. This is best accomplished with a reasonable
asset allocation and a diversified mix of low cost total
market indexes. If you think you can beat the market by
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Dr. Weinstein practiced oculoplastic surgery in Pittsburgh for 25 years. He taught investing at Carnegie
Mellon University’s Osher program and the American
Academy of Ophthalmology. He co-authored a Retirement Planning chapter in J.K. Lasser’s Expert Financial
Planning and lectures on investing and financial planning
to physician groups.
Legal Report
From Page 31
hospitals for the negligence of their non-employed medical staff members, it is consistent with trends emerging
in other states. The impact on physicians may be limited
since physicians remain liable for their own clinical care
decisions (provided they are named in a lawsuit within the
two-year statute of limitations), but the impact on hospitals will increase their exposure. I predict that hospitals
will increase the use of liability disclaimers in admission
forms, signage and elsewhere to undercut any patient
expectations of vicarious liability. Although patients in
acute distress may not have the reasonable opportunity to
select which physicians intervene in an emergency, juries
will now get to decide whether such patients reasonably
believe the physicians providing their care are doing so as
hospital agents, and whether to hold hospitals responsible
for their mistakes.
Mr. Maruca is a health care partner with the Pittsburgh
office of the national law firm of Fox Rothschild LLP. He
can be reached at [email protected] or (412)
394-5575.
Bulletin / January 2016
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