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Janice Sokolsky sued her attorney, Edward Eidelman, for malpractice.  One component of a legal malpractice case is that there was merit to the underlying claim.  The underlying claim here concerned a nursing home’s alleged failure to render proper care to a resident.  The court reexamined the general components for a medical malpractice case and laid forth those criteria accurately.  One might argue with the citation of authority that to pursue a claim for damages one must exhibit some “physical manifestation” of harm resulting from the injury.  At 863, citing Osborne v. Lewis, 59 A.3d 1109, 1114-1115 (Pa. Super. 2012), appeal denied 70 A.3d 812 (2013).  Certainly psychic injuries may be the basis for a claim.


Most importantly about the decision is the reiteration of the differences between direct and vicarious liability.  Preliminary objections are filed frequently in the Court of Common Pleas where plaintiff is said not to be explicit enough about who is negligent and why in the vicarious liability or corporate claim.  This opinion by Judge Mundy makes clear that the lower court erred as a matter of law when it ruled that Sokolsky could not establish her right to recovery on her vicarious liability claim solely because she did not base that claim on an individual staff member’s actions.


Simply because employees are unnamed within a complaint or referred to as a unit, i.e., the staff, does not preclude one’s claim against their employer under vicarious liability if the employees acted negligently during the course and within the scope of their employment.  At 866.



The vicarious liability claim attaches to defendant Manor Care and Lehigh Valley regardless of Sokolsky’s attack of an individual member of either entity’s nursing staff.  Sokolsky adduced sufficient evidence to establish a prima facie case of medical malpractice against the entities based upon their staff’s treatment of her.  Further, Sokolsky did identify a number of individual health care providers who she believed breached the duty of care.


With respect to the corporate claim, the court relied upon well-known prior case law to conclude that the trial court erred as a matter of law when dismissing Sokolsky’s corporate negligence claim.  As the Supreme Court concluded in Scampone v. Highland Park Care Center, LLC, 57 A.3d 582 (2012), the trial court must apply Section 323 of the Restatement (Second) of Torts or the factors set forth in Althaus v. Cohen, 756 A.2d 1166 (2000) in order to determine if a duty of care exists.  It is up to the trial court to determine if Manor Care owed Sokolsky any legal duties or obligations under those standards.


In terms of punitive damages, since the case will be reinstated, the trial court will have to determine whether punitive damages could stand.


As such, the decision to grant summary judgment in the underlying medical malpractice case was reversed. Sokolsky v. Eidelman, 93 A.3d 858 (Pa. Super. 2014).