Despite Physician “Non-Involvement,” Pennsylvania Superior Court Assigns Liability Against General Partner Physician

Despite Physician “Non-Involvement,” Pennsylvania Superior Court Assigns Liability Against General Partner Physician

Despite Physician “Non-Involvement,” Pennsylvania Superior Court Assigns Liability Against General Partner Physician

In Nigon v. Jewell, 2024 PA Super 68 (June 7, 2023), the Superior Court reversed a trial court’s decision to grant summary judgment in favor of a family physician, his partner, and his practice, finding there were genuine issues of material fact to show a causal nexus between the family physician’s alleged negligence and the Plaintiff’s decedent’s death. The Superior Court also reversed the trial court’s decision to dismiss the family physician’s general partner, who was not involved in the decedent’s care, finding that the general partner could be held jointly and severally liable for the family physician’s negligent conduct.

Thomas Nigon’s family doctor, Thomas J. Malvar, prescribed Eliquis to treat his deep vein thrombosis (DVT), i.e., blood clots. Several months later, Malvar discontinued Eliquis because Nigon’s DVT had resolved. Several additional months passed when Nigon presented to UPMC Jameson’s Emergency Department with a leg injury after he fell down steps at his home. Nigon was told by the medical staff at UPMC Jameson that he did not have a DVT, and he was instructed to follow up with an orthopedic surgeon.

Nigon was evaluated by Brian F. Jewell, M.D., who recommended surgery to repair a high-grade tear of the left quadriceps. Due to his history of blood clots, Jewell instructed Nigon to seek standard pre-operative clearance from Malvar. Malvar cleared Nigon for surgery without mentioning Nigon’s history of blood clots. Nigon underwent a surgical left quadricep tendon repair at UPMC Passavant Hospital, performed by Dr. Jewell. Dr. Jewell issued a post-operative order for Xarelto, a blood thinning medication, but the prescription was not supplied to Nigon. Days later, Nigon passed away from a massive bilateral pulmonary embolism caused by DVT of his left lower extremity.

Nigon’s estate filed a wrongful death and survivor actions (professional negligence, negligent infliction of emotional distress, and battery, i.e., lack of informed consent) against Jewell, UPMC Passavant Hospital, and Thomas Malvar, MD, Malvar & Associates, under the theory of vicarious liability, and Thomas Malvar, MD’s general partner, Maritoni Malvar, MD (collectively referred to as “Malvar Defendants”) under the theory of joint and several liability.

The trial court denied Maritoni Malvar, M.D.’s preliminary objection in the nature of a demurrer on the basis of an Affidavit of Non-Involvement, relying on various sections of Pennsylvania’s Uniform Partnership Act. Section 8435(a) provides:

A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with the actual or apparent authority of the partnership.

15 Pa.C.S.A. § 8435(a). Here, the Superior Court determined that notwithstanding certain exceptions not relevant to this case, “all partners are jointly and severally liable for all … liabilities of the partnership….” Id. § 8436(a). Further, under Section 8437(b), “a partner may be joined in an action against the partnership or named in a separate action.” Id. § 8437(b).

During litigation, Nigon presented evidence from an expert, who concluded that Thomas Malvar, MD was negligent for, inter alia, his failure to perform standard tests to discover Nigon’s Prothrombin gene mutation, which warranted lifetime coagulation to protect from blood clots. Nigon’s expert further opined that Thomas Malvar, MD’s negligence was a factual cause of Nigon’s injuries and death.

At the end of discovery, the Malvar Defendants filed a motion for summary judgment, arguing that their conduct was not a factual cause of Nigon’s injuries and death because Jewell knew of Nigon’s risk for the development of clots and, therefore, prescribed Xarelto following surgery, which was not administered. Maritoni Malvar, MD also represented her affidavit of noninvolvement, arguing that 15 Pa.C.S.A. § 8435(a) did not apply to her circumstances based on Strain v. Ferroni, 592 A.2d 698 (Pa. Super. 1991), which states the following:

Physicians and surgeons, like other persons, are subject to the law of agency and a physician may be at the same time the agent both of another physician and of a hospital even though the employment is not joint. … In determining whether a person is a servant of another[,] it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it[,] but that this work is to be performed on the business of the master or for her benefit. … Actual control, of course, is not essential. It is the right to control which is determinative. On the other hand, the right to supervise, even as to the work and the manner of performance, is not sufficient; otherwise[,] a supervisory employee would be liable for the negligent act of another employee though he would not be the superior or master of that employee in the sense the law means it. …

Ultimately, the trial court granted the motion for summary judgment, finding no causation, and also determined that Maritoni Malvar, MD, had no right of control over Thomas Malvar, MD. Nigon settled his claims against the remaining Defendants and pursued his appeal against the Malvar Defendants.

The Superior Court determined that the trial court abused its discretion in granting the Malvar Defendants’ motion for summary judgment because Nigon’s expert opined that Thomas Malvar, MD, departed from the standard of care in failing to properly diagnose and treat Nigon’s blood clotting disorder. Moreover, Nigon’s expert opined that had Nigon had a bona fide medical history of clotting disorder, his post-surgery risks for blood clots would have been magnified, and this history would have increased the opportunity for proper anticoagulation therapy post-surgery. Ultimately, the Court concluded that the question of whether Thomas Malvar, MD’s breach of the standard of care was a factual cause of Nigon’s injuries and death should have been reserved for a jury.

The Superior Court also reversed the trial court’s decision to dismiss Maritoni Malvar, MD, from the case, stating that its reliance on Strain was misplaced. Specifically, the Superior Court reasoned that Nigon’s estate sought to hold Dr. Maritoni Malvar liable as a general partner of Malvar & Associates rather than as a principal with liability for an agent, as was the issue in Strain. The Superior Court concluded because Drs. Maritoni and Thomas Malvar are members of a partnership; the principal-agent framework applied by the Strain Court was not at issue.

The opinion in Nigon v. Jewell, 2024 PA Super 68 (June 7, 2023) can be accessed here.