Pennsylvania Hospitals

Pennsylvania hospitals can be held liable for harm caused to a patient under two theories of negligence: (1) corporate negligence, and (2) vicarious liability. Corporate negligence is a straight forward "direct" theory of negligence.  For example, a hospital can be found to be negligent if it does not provide industry standard policies and procedures governing the administration of healthcare within its facility, or it can be found to be negligent for substandard hiring, training and/or supervision of its staff.

Vicarious liability on the other hand is an "indirect" theory of negligence -- it is a policy-based allocation of risk.  It is sometimes referred to as imputed negligence, most commonly seen in the context of an employment relationship, whereby the employer is held responsible for the employee's conduct.  Vicarious liability can also be applied under the doctrine of apparent agency; otherwise known as "ostensible agency."

The Pennsylvania legislature codified the vicarious liability of hospitals under the doctrine of ostensible agency through the Medical Cost Containment and Reduction of Error (MCARE) Act in 2002.  Under the Act, 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.

Just last week, in the case of Ronald Green, Executor of the Estate of Joseph Fusco, v. Pennsylvania Hospital et al., the PA Supreme Court reversed the decision of a trial court and the Superior Court of Pennsylvania and allowed Mr. Green's case against Pennsylvania Hospital to proceed to a jury.  The Supreme Court had to decide if a genuine issue of material fact existed to allow the decision of whether an agency relationship existed between the defendant hospital and the non-party physician that cared for Mr. Fusco.  For reasons unclear to me, Mr. Green did not sue the doctor, whose alleged negligent conduct caused Mr. Fusco's death, but only sued the hospital.  Therefore, in order for Mr. Green to be able to submit his case to a jury an argue negligence, he had to prove that an agency relationship existed between the doctor and the hospital. Ultimately, the PA Supreme Court determined that under the facts of the case it was for a jury to determine, not the courts, whether the care being rendered could be reasonably viewed as being delivered by an agent of the hospital, a clear victory for Pennsylvania residents.

By way of background, Joseph Fusco was admitted to The Pennsylvania Hospital's Intensive Care Unit for respiratory distress and placed on a mechanical ventilator.  A week later, in an effort to wean Mr. Fusco off the ventilator, a tracheostomy was performed.  (A tracheostomy is a surgical procedure to create an opening through the neck into the trachea (windpipe). A tube is usually placed through this opening to provide an airway and to remove secretions from the lungs. This tube is called a tracheostomy tube or trach tube.)  Soon thereafter, a nurse noticed the tracheostomy was “squirting” blood; and, therefore she summoned an emergency response team, which included an Ear, Nose and Throat (ENT) physician.  The ENT determined that there was an obstruction present in the trach tube; and, therefore, the ENT attempted to reinsert an endo-tracheal tube through the trach tube.  Sadly, the tube went into Mr. Fusco's thorax, not into his trachea where the doctor intended it to go. As a result, when medical personnel began to force air through the improperly-placed tube, the air accumulated outside of Mr. Fusco's lungs, causing his lungs and trachea to collapse, suffer cardiac arrest and die.

Although it was evident that Mr. Fusco did not select the ENT and accepted care from whomever the hospital appointed to provide the care, the trial court granted the hospital's motion for non-suit and held that Mr. Green failed to offer any evidence that a reasonably prudent person in Mr. Fusco's position would have been justified in the belief that the care in question was rendered by the hospital or its agents.  The PA Superior Court affirmed the non-suit; however, the PA Supreme Court reversed the decision holding that when a hospital patient experiences an acute medical emergency, and a member of the hospital's staff issues an emergency request 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.

It is noteworthy to mention that Mr. Fusco died at the Pennsylvania Hospital in 2009 without next of kin.  Mr. Green and Mr. Fusco were in a dedicated same-sex relationship; however, at this time, Pennsylvania did not recognize same-sex marriage and, therefore, in the eyes of the law, their relationship was worthless.  Accordingly, Mr. Green's claim was limited to a "survivor" claim whereby Mr. Green could only seek damages for the pain and suffering Mr. Fusco endured in the moments leading to his death.  Anecdotally, on May 20, 2014, a U.S. District Court ruled that Pennsylvania's same-sex marriage ban was unconstitutional.  Governor Corbett did not appeal the decision, effectively making Pennsylvania the 19th state to recognize same-sex marriage.  As a result, spouses in same-sex marriages are afforded the same rights as traditional spouses and now can maintain claims for wrongful death and loss of consortium.