MEDICAL MALPRACTICE-DENTAL MALPRACTICE-VICARIOUS LIABILITY

Forrer-Frye v. Sabatini, 2023 U.S. Dist. LEXIS 12194 (M.D. Pa. January 24, 2023) (Brann, J.)  Plaintiff Kimberly Forrer-Frye filed this medical malpractice action against her dentist, Defendant Dominic Sabatini, D.M.D., for his alleged negligent dental work. She also sues the entity that she alleges currently employs Sabatini, Total Health Dentistry, LLC (“THD”), for its vicarious liability for Sabatini’s actions. THD purchased Sabatini’s practice in December 2016 pursuant to a written purchase agreement. At that time, he was in the midst of treating Frye’s dental issues and continued to treat her after THD purchased his practice. THD denies vicarious liability for Sabatini’s treatment of Frye. Frye agreed to stipulate to THD’s dismissal. But Sabatini opposes the dismissal of THD. THD now moves for summary judgment on Frye’s vicarious claim against it. For the reasons that follow, THD’s motion will be denied. THD hired Sabatini—a dentist—to do dental work. He then provided dental treatment to Forrer-Frye. That satisfies the first element of employer liability. None of the statements THD relies upon indicate that Sabatini’s practice was “purposefully segregated” from THD’s practice. That indicates that THD covered expenses incurred by Sabatini when he was performing dentistry. The record also indicates that multiple THD employees assisted Sabatini in Forrer-Frye’s treatment. THD has offered no testimony or documentary evidence indicating that it has no control over Sabatini’s work. Conversely, Sabatini avers in his filings that he is an employee. His assertions may serve to indicate an agency relationship. THD has presented no evidence demonstrating that it lacked control over Sabatini’s work such that no agency relationship existed between them. Taking all reasonable inferences in THD’s favor, the facts listed above weigh against summary judgment on Forrer-Frye’s vicarious claims. As for the third element, THD relies on the fact that Forrer-Frye only paid Sabatini for the implant work rather than THD.44 But this fact alone does not conclusively demonstrate that Sabatini’s actions did not serve THD at all where THD covered all of Sabatini’s expenses and THD employees assisted Sabatini in treating Forrer-Frye. Nor does it overcome the other evidence that weighs in favor of concluding that Sabatini is THD’s employee. THD points the Court’s attention to indemnification clauses in the Professional Partnership Agreement, arguing that the language regarding the clauses’ scope demonstrates that THD is not vicariously liable for Sabatini’s actions because he began treating Forrer-Frye before the closing date. Who indemnifies whom is irrelevant to Forrer-Frye’s claim that Sabatini, as an employee or agent of THD, negligently treated her. The clauses may be relevant to what share of the damages each Defendant must pay, but they do not conclusively establish that Sabatini was acting outside the scope of his employment. Therefore, there are still factual disputes over whether Sabatini acted as THD’s employee when treating Forrer-Frye after December 1, 2016. Summary judgment is accordingly inappropriate at this time.