Green v. Pennsylvania Hospital, 123 A.3d 310 (Pa. 2015)

January 6th, 2016 by Rieders Travis in Medical Malpractice

Ronald Green, Executor of the Estate of Joseph Fusco, appealed a Superior Court Order affirming the trial court’s grant of a nonsuit in favor of defendant hospital and doctors.  The Supreme Court reversed and remanded for further proceedings.  Decedent arrived at the hospital complaining of short breath, rapid breathing and wheezing.  He was admitted to the intensive care unit, given medication, and wound up on a ventilator.  He had a number of serious preexisting conditions.  On January 9, 2009, in an attempt to wean decedent from the ventilator, a physician performed a tracheotomy.  A tracheotomy cuff was placed around the tube and inflated.  Blood was coming from the tracheotomy site.  The tracheotomy tube had become blocked, depriving decedent of an airway.  Medical personnel attempted to force air through an improperly placed tube and the trachea collapsed.  This was during an attempt to provide an airway.  A negligence action ensued.


A plaintiff may pursue a negligence action on a direct liability or vicarious liability theory.  In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the vicarious liability of hospitals under the doctrine of ostensible agency.  Here, the lower court found that the doctor had not been proven to be an ostensible agent of the hospital.  The court ruled that the requirement for establishing ostensible agency under Section 1303.516(a)(1) of the MCARE Act, where the evidence must show that 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, is substantially the same as the requirement for establishing ostensible agency under Section 429 of the Restatement (Second) of Torts, where the recipient of services must demonstrate a reasonable belief that the services were rendered by the employer or by his servants.  At 322.


The record presented sufficient evidence to create a jury question concerning whether a reasonably prudent person in decedent’s position would be justified in the belief that the doctor was acting as the hospital’s agent when she rendered care to the decedent.  It is undisputed that decedent became a patient of the hospital through the emergency room.  The doctor in question arrived in decedent’s room 10 minutes after he did.  The doctor was the primary care taker for the patient with respect to the tracheotomy.  “In this Court’s view, when a hospital patient experiences an acute medical emergency, such as that experienced by Decedent in the instant case, and an attending nurse or other medical staff issues an emergency 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.”  At 323.  Hence, the nonsuit was erroneous.


Another question raised in this case is whether a nurse could give causation testimony against another nurse who helped in the procedure.  The MCARE Act does not mandate the admission of a given expert’s testimony.  An abuse of discretion standard will apply.  In this case the trial court determined that allowing the nurse to offer causation testimony as to another nurse, might confuse the jury.  The trial court did not abuse its discretion in this respect.  Thus, based on the expert report, the proffered expert causation testimony of the nurse was based on a course of conduct by nurses and physicians and therefore had the potential to confuse the jury.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



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