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Maresca v. Mancall

Maresca v. Mancall


IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA







JOSEPH MARESCA,:
CIVIL ACTION

Plaintiff,:

:

v.:
NO. 01-5355

:

ELLIOT L. MANCALL, M.D., and:

THOMAS JEFFERSON UNIVERSITY:

HOSPITAL,:

Defendants.:










MEMORANDUM




LEGROME D. DAVIS, J. JUNE ___, 2003


  • INTRODUCTION

Plaintiff Joseph Maresca (“Plaintiff”), proceeding pro se, initiated this medical malpractice
action in state court in September of 2001 against Defendants Elliot L. Mancall, M.D. (“Dr.
Mancall”) and Thomas Jefferson University Hospital (“TJUH”). After the action was removed to
this Court by Defendants, Plaintiff filed a Complaint on February 14, 2002, generally alleging the
following: that he was examined by Dr. Mancall on or about December 5, 1996; that he was at
that time suffering from particular symptoms which Dr. Mancall should have recognized as
corresponding to a medical condition called ankylosing spondylitis; that Dr. Mancall failed to
diagnose his condition; that he did not realize that he suffered from ankylosing spondylitis until
over two years later; and that Dr. Mancall’s failure to diagnose his condition resulted in his
continued suffering from the condition and the further progression of the condition. The
Complaint can be fairly read to set forth three claims: (1) a medical malpractice claim against Dr.
Mancall based on his alleged failure to diagnose Plaintiff’s condition; (2) a claim against TJUH
alleging vicarious liability for Dr. Mancall’s actions based upon the theory of respondeat superior;
and (3) a claim against TJUH based upon the doctrine of corporate negligence. The following
motions are presently before the Court, and will be addressed individually: (1) a Motion for
Summary Judgment filed by TJUH on January 13, 2003 (“TJUH Motion for Summary
Judgment”); (2) a Motion for Summary Judgment filed by Dr. Mancall on January 13, 2003 (“Dr.
Mancall’s Motion for Summary Judgment”); (3) a Partial Summary Judgment Motion filed by
Plaintiff on January 13, 2003 (“Plaintiff’s Partial Summary Judgment Motion”); and (4) a Motion
in Limine filed by Plaintiff on February 18, 2003 (“Motion in Limine”).


  • SUMMARY JUDGMENT STANDARD

In order to prevail on a summary judgment motion, the moving party must show from the
“pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any” that “there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling on a motion for
summary judgment, the court must view the facts from the evidence submitted in the light most
favorable to the non-moving party, and the court must take the non-movant’s allegations as true.
Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). A fact is material only if it
might affect the outcome of the lawsuit under the governing substantive law, and a dispute about
a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Once the moving party establishes “that there is an absence of evidence to support the
non-moving party’s case,” Celotex Corp. v.. Catrett, 477 U.S. 317, 325 (1986), the nonmoving
party must “do more than simply show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
nonmoving party may not rely on bare assertions, conclusory allegations or suspicions. Fireman’s
Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Neither may the nonmoving
party rest on the allegations in the pleadings. Celotex Corp., 477 U.S. at 324. Rather, the
nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is
a genuine issue for trial.'” Id.


  • TJUH MOTION FOR SUMMARY JUDGMENT

In its Motion for Summary Judgment, TJUH argues: (1) that Plaintiff’s malpractice claim
is barred by the applicable statute of limitations; (2) that TJUH is entitled to Summary Judgment
as to Plaintiff’s claim against TJUH based upon the doctrine of respondeat superior; and (3) that
TJUH is entitled to Summary Judgment as to Plaintiff’s corporate negligence claim.


  • Statute of Limitations

Where, as here, a plaintiff’s medical malpractice claim is based upon the alleged failure of
a doctor to diagnose or treat a pre-existing condition,

“the injury is not the mere undetected existence of the medical
problem at the time the physician failed to diagnose or treat the patient
or the mere continuance of that same undiagnosed problem in
substantially the same state. Rather, the injury is the development of
the problem into a more serious condition which poses greater danger
to the patient or which requires more extensive treatment.”




Hughes v. U.S., 263 F.3d 272, 276-77 (3d Cir. 2001) (citation omitted). The applicable statute of
limitations does not begin to accrue on such a claim until such time as the plaintiff discovered, or
through the exercise of reasonable diligence should have discovered, that the failure of his doctor
to diagnose, treat, or warn him was a causal factor in the plaintiff’s injuries. See id. at 277.
(applying the discovery rule to the specific context of an alleged failure to diagnose). Here, there
clearly exists a genuine issue of material fact as to whether Plaintiff discovered, or should have
discovered, that Dr. Mancall’s alleged failure to diagnose his condition (ankylosing spondylitis)
was a causal factor in Plaintiff’s alleged injuries (including the worsening of his condition) more
than two years before the date Plaintiff initiated this action (on or about September 7, 2001).(1)
Thus, TJUH is not entitled to summary judgment on the grounds that Plaintiff’s malpractice claim
is barred by the applicable statute of limitations.(2)


  • Corporate Negligence

As noted above, Plaintiff purports to assert a claim against TJUH based upon the doctrine
of corporate negligence.(3) The Court rejects the argument by TJUH that the Complaint (filed by
Plaintiff who, the Court notes, is proceeding pro se) is insufficient in asserting a claim for
corporate negligence against TJUH.(4)

The Court also rejects the argument by TJUH that the expert report offered by Plaintiff in
support of the corporate negligence claim is insufficient.(5) Here, a fair reading of the expert report
of Mitchell S. Felder, M.D., indicates that Dr. Felder takes the position: that TJUH should have
arranged (or at least ensured that Dr. Mancall arranged) for follow-up visits of Plaintiff by Dr.
Mancall; that the failure to do so constituted a breach of the duty to formulate, adopt and enforce
adequate rules and policies to ensure quality care for the patients; and that the failure to do so
likely contributed to Plaintiff’s injuries, namely the progression of his condition. See TJUH
Motion for Summary Judgment, Ex. C.(6) This is sufficient for purposes of surviving the Motion
for Summary Judgment. See Rauch v. Mike-Mayer, 783 A.2d 815, 827-28 (Pa. Super. 2001)
(expert report sufficient where fair reading of report indicated expert believed failure of
anesthesiologists and surgeon to obtain medical clearance prior to administering general
anesthesia to the plaintiff revealed a breach of hospital’s duty to formulate, adopt and enforce
adequate rules and policies to ensure quality care for patients, and that such failure exposed the
plaintiff to increased risk of harm).

The Court further rejects the argument that Dr. Felder is not qualified to provide expert
testimony to support the corporate negligence claim. TJUH appears to contend that, although Dr.
Felder may have a significant degree of knowledge and expertise in the medical field of neurology,
he has no “particular expertise in the area of a hospital’s duties owed to patients, hospital
administration, or hospital policies and procedures,” and is “therefore, not qualified to render any
opinions on the issue of corporate negligence.” TJUH Motion for Summary Judgment at 11-12.

[T]he standard for qualification of an expert witness is a liberal one.
The test to be applied when qualifying an expert witness is whether
the witness has any reasonable pretension to specialized knowledge on
the subject under investigation. If he does, he may testify and the
weight to be given to such testimony is for the trier of fact to
determine.




Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995). Here, Dr. Felder’s medical
expertise and experience are sufficient.(7) It is not necessary that Dr. Felder have particularized
experience with the legal duties a hospital owes to its patients, or with hospital administration, in
order to be qualified to render an expert opinion on the issue of corporate negligence. See
Whittington v. Episcopal Hosp., 768 A.2d 1144, 1155-56 (Pa. Super. 2001) (doctor qualified to
render expert opinion on corporate negligence where doctor: had been board-certified in
obstetrics/gynecology, the precise medical field involved in lawsuit, for over twenty years; was an
attending obstetrician and gynecologist in three major hospitals and had supervisory duties
regarding physicians and nurses who assisted him as attending physician; held academic
appointment at Northeastern Ohio College of Medicine; and had consistently treated high risk
patients, including those with same condition as decedent).


  • Respondeat Superior

Finally, the Court rejects the argument of TJUH that Plaintiff cannot establish that TJUH
should be held vicariously liable for the negligence of Dr. Mancall based upon the theory of
respondeat superior “because Dr. Mancall is not a direct agent of the hospital.” TJUH Motion
for Summary Judgment at 23. Specifically, TJUH contends that at the time of Dr. Mancall’s
examination of Plaintiff, Dr. Mancall was a professor of neurology at Jefferson Medical College
(“JMC”), his office was located at JMC, and that JMC is distinct from TJUH. See id.

General agency principles apply to hospitals and physicians. In order
to establish actual agency, it must be shown that the employer-hospital
controlled or had the right to control the physical conduct of the
servant-physician in the performance of his work. . . . Where the
evidence is conflicting, the jury must decide whether the requisite right
of control exists to impose vicarious liability on the employer.




Simmons v. St. Clair Memorial Hosp., 481 A.2d 870, 873-74 (Pa. Super. 1984). Factors which
may be considered in determining whether a doctor is the actual agent of a hospital include: (1)
whether the doctor maintained an office at the hospital; (2) whether the doctor received a salary
from the hospital; (3) whether the doctor held a supervisory position at the hospital (such as
department chair); and (4) whether the doctor had responsibilities concerning hospital
administration. See id.

In the first place, it seems clear that Dr. Mancall is, at the very least, an agent of JMC,(8)
and there is clearly an unresolved factual issue as to the precise relationship between TJUH and
JMC. Moreover, Dr. Mancall’s curriculum vitae provides that he is currently on the “active
medical staff” at TJUH, that he is currently on the Executive Staff at TJUH, see TJUH Motion for
Summary Judgment, Ex. G., and at the top of the form upon which Dr. Mancall entered his notes
concerning his examination of Plaintiff appears the heading “Thomas Jefferson University Hospital
/ History – Physical Examination – Progress Notes / Department of Neurology Use Only,”
Plaintiff’s Opposition, Ex. 5.1. Based upon these facts, the Court concludes that there exists a
genuine issue of material fact as to whether Dr. Mancall was acting as the actual agent of TJUH at
the time in question.(9)


  • DR. MANCALL’S MOTION FOR SUMMARY JUDGMENT

In his Motion for Summary Judgment, Dr. Mancall sets forth precisely the same statute of
limitations argument as TJUH has set forth in its Motion for Summary Judgment. For the reasons
stated above in rejecting the TJUH argument regarding the statute of limitations, Dr. Mancall’s
statute of limitations argument is likewise rejected.


  • PLAINTIFF’S PARTIAL SUMMARY JUDGMENT MOTION

Plaintiff’s Partial Summary Judgment Motion states: “The plaintiff requests that the Court
grant a partial summary judgment on the matter of an incomplete medical record not in
compliance with the Pennsylvania Code CS 6101-4 Parts 115.32(e) and 115.33(b); 115.31(a) and
(b) and 115.34 on medical records review.” Plaintiff’s Partial Summary Judgment Motion at 1.
The sections Plaintiff cites are actually portions of the Pennsylvania Administrative Code which
appear at Title 28 (“Health and Safety”), Part IV (“Health Facilities”), Subpart B (“General and
Special Hospitals”), Chapter 115 (“Medical Record Services, Policies and Procedures for Patient
Medical Records”).(10) These sections of the Administrative Code have been promulgated pursuant
to the Health Care Facilities Act, 35 Pa. Cons. Stat. Ann. ? 448.101 et seq. Essentially, Plaintiff
seeks a ruling from this Court as a matter of law that Defendants violated these sections of the
Administrative Code because the medical form generated during Plaintiff’s examination at Dr.
Mancall’s office on December 5, 1996, contains an unsigned entry by an unidentified resident or
medical student summarizing Plaintiff’s reported history of symptoms.

Defendants argue that Plaintiff should not be allowed to proceed with a cause of action
based upon a violation of these Administrative Code sections because Plaintiff did not plead such
a cause of action in his Complaint, and because there exists no private right of action for a
violation of these Administrative Code sections. The Court agrees that Plaintiff has not plead a
cause of action based upon an alleged violation of these Administrative Code sections, and also
that there exists no private right of action for a violation of these Administrative Code sections.

However, the Court interprets Plaintiff’s Partial Summary Judgment Motion not as
asserting a private right of action under these sections, but rather as asserting the doctrine of
negligence per se. According to Pennsylvania law, under certain circumstances, the traditional
standard of care in a negligence action (that of a reasonable person under the circumstances) may
be superceded, and the standard set forth in a particular statute or ordinance enacted by the
legislature may, instead, provide the applicable standard of care. See Sharp v. Artifex, Ltd., 110
F.Supp.2d 388, 392 (W.D. Pa. 1999). In such instances, a violation of the statute or ordinance
may serve as the basis for a finding of negligence per se. Id.

To establish a claim based on negligence per se, the plaintiff must
show: (1) that the purpose of the statute is “at least in part, to protect
the interest of a group of individuals, as opposed to the public
generally;” (2) that the statute clearly applies to the conduct of the
defendant; (3) that the defendant violated the statute; and (4) that the
violation was the proximate cause of the plaintiff’s injuries.




Id. Furthermore, courts in Pennsylvania have recognized that the absence of a private right of
action in a statutory scheme does not necessarily preclude the statute’s use as the basis of a claim
of negligence per se. Id.

Here, the Court interprets Plaintiff’s Partial Summary Judgment Motion as a request for a
ruling as a matter of law that Defendants were negligent per se as a result of having violated the
Administrative Code sections cited by Plaintiff.(11) However, the Court further concludes that the
request must be denied because, even assuming arguendo that the Administrative Code sections
cited by Plaintiff apply to Defendants,(12) and that Defendants violated these sections, the purpose
of these sections (and, indeed, the entire Health Care Facilities Act) is to protect the interests of
the public generally, and not to protect the interests of any particular group of individuals. See
Chalfin v. Beverly Enterprises, Inc., 745 F.Supp. 1117, 1119 (E.D. Pa. 1990); cf. McCain v.
Beverly Health and Rehabilitation Services, 2002 WL 1565526, at *1 (E.D. Pa. 2002) (holding
that the plaintiff’s negligence per se allegations would not be dismissed because the Omnibus
Budget Reconciliation Act (OBRA), the regulations enacting OBRA (42 C.F.R. ? 483), and the
Older Adult Protective Services Act were intended to protect “older persons” in particular, and
not merely the public generally, and that they were intended, at least in part, to obviate the
specific kind of harm alleged to have been sustained, namely “pressure sores”). Moreover,
Plaintiff does not contend, and there is no evidence tending to establish, that the alleged violation
of these Administrative Code sections by Defendants was the proximate cause of Plaintiff’s
injuries. For these reasons, Plaintiff’s Partial Summary Judgment Motion will be denied.


  • PLAINTIFF’S MOTION IN LIMINE

In a related motion, Plaintiff asks the Court to exclude as evidence the top portion of the
medical form from Plaintiff’s examination by Dr. Mancall, specifically the unsigned entry by an
unidentified resident or medical student setting forth a summary of Plaintiff’s reported history of
symptoms. Plaintiff does not contend that the symptoms listed in the entry are inaccurate, but
rather contends that the entry is incomplete because it does not contain two particular symptoms
allegedly reported by Plaintiff to the resident during the examination, namely his inability to
perform a sit-up and his inability to run. See Motion in Limine at 1. Plaintiff further contends
that he would be prejudiced by the admission of this portion of the medical form because he
would not be able to question at trial the author of the entry regarding the purported omissions
(since neither Dr. Mancall nor TJUH have been able to identify the author). See id. Presumably,
Plaintiff believes that Dr. Mancall’s alleged failure to diagnose his condition at the time of his
December 5, 1996 visit will be significantly more evident to a jury if Plaintiff can establish that the
symptoms he reported included the inability to perform a sit-up and the inability to run.(13)

Plaintiff’s primary argument is that the evidence should be excluded because the unsigned
entry does not comply with the Medical Malpractice Act of 1985, 63 Pa. Cons. Stat. Ann. ??
422.51 – 422.51a. However, the Medical Malpractice Act, and the regulations adopted
thereunder, provide only a basis for the imposition of fees, fines, and civil penalties by the State
Board of Medicine upon medical practitioners and entities who are regulated by the Board, and
does not form a basis for the exclusion of evidence in a medical malpractice action.

Although Plaintiff’s brief accompanying his Motion in Limine does not include an
argument that the evidence should be excluded as hearsay, Defendants have addressed the hearsay
issue in their responses to the Motion (Docket Entry No.s 41 and 43), and Plaintiff likewise
addresses the hearsay issue in his additional reply briefs (Docket Entry No.s 44 and 45).
Defendants contend that the evidence need not be excluded as hearsay because it falls within the
exception for “records of regularly conducted activity” as set forth in Fed. R. Evid. 803(6).(14)
That Rule provides that the following is “not excluded by the hearsay rule”:

A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with knowledge,
if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the
memorandum, report, record or data compilation, all as shown by the
testimony of the custodian or other qualified witness, or by
certification that complies with Rule 902(11), Rule 902(12), or a
statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. . . .




Fed. R. Evid. 803(6) (emphasis added). Plaintiff contends that the circumstances surrounding the
entry of the top portion of the medical form (namely that it is not signed and that Defendants are
unable to identify the author) indicate a lack of trustworthiness. The Court does not agree.

Plaintiff does not, in fact, dispute that he reported his symptoms to a resident or medical
student during his visit, that this unidentified individual thus had personal knowledge of Plaintiff’s
reported symptoms at the time of making the unsigned entry, that the entry on the medical form in
question was made by this unidentified individual, and that the symptoms that are included in the
entry are accurate. Nor does Plaintiff contend that the author of the entry had any motivation to
intentionally omit symptoms from the entry, or that the entry has ever been altered. Plaintiff also
does not dispute that the entry was made in the regular course of business, or that such histories
were regularly documented on medical forms during patient examinations. The mere fact that the
entry is not signed does not necessarily compel the conclusion that it is not trustworthy. See In re
Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 296-97 (3d Cir. 1983), reversed
on other grounds, 475 U.S. 574 (1986). Presuming that Defendants establish a sufficient
foundation at trial through “the testimony of the custodian or other qualified witness,” as required
by Rule 803(6), the top portion of the medical form will be held to satisfy the requirements of
Rule 803(6). See, e.g., U.S. v. Pelullo, 964 F.2d 193, 200 (3d Cir. 1992) (“The business records
exception permits admission of documents containing hearsay provided foundation testimony is
made by ‘the custodian or other qualified witness,’ that: (1) the declarant in the records had
personal knowledge to make accurate statements; (2) the declarant recorded the statements
contemporaneously with the actions that were the subject of the reports; (3) the declarant made
the record in the regular course of the business activity; and (4) such records were regularly kept
by the business.”). For these reasons, Plaintiff’s Motion in Limine will be denied.


  • CONCLUSION

An Order setting forth the Court’s rulings on the Motions addressed herein follows.







IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA







JOSEPH MARESCA,:
CIVIL ACTION

Plaintiff,:

:

v.:
NO. 01-5355

:

ELLIOT L. MANCALL, M.D., and:

THOMAS JEFFERSON UNIVERSITY:

HOSPITAL,:

Defendants.:







ORDER




AND NOW, this day of June, 2003, for the reasons set forth in the accompanying
Memorandum, it is hereby ORDERED as follows:


  • The Motion for Summary Judgment filed by Defendant Thomas Jefferson University
    Hospital on January 13, 2003 (Docket Entry No. 31) is DENIED.

  • The Partial Summary Judgment Motion filed by Plaintiff Joseph S. Maresca (“Plaintiff”)
    on January 13, 2003 (Docket Entry No. 32) is DENIED.

  • The Motion for Summary Judgment filed by Defendant Elliot L. Mancall, M.D., on
    January 13, 2003 (Docket Entry No. 33) is DENIED.

  • The Motion in Limine filed by Plaintiff on February 18, 2003 (Docket Entry No. 37) is
    DENIED.

BY THE COURT:




Legrome D. Davis

1. In its brief, TJUH appears to ignore the particular formulation of the discovery
rule within the context of an alleged failure to diagnose, citing instead the general formulation of
the rule that the statute of limitations begins to accrue when a plaintiff knows or reasonably
should know of his injury. On this basis, TJUH argues that the medical malpractice claim is
barred because Plaintiff knew that he continued to experience the symptoms of his condition
during the two years following his examination by Dr. Mancall. TJUH Motion for Summary
Judgment at 12-21. This, however, is not the pertinent question in the instance context.

2. The additional argument by TJUH that Plaintiff has waived the issue of whether
the “discovery rule” applies to this cause of action is rejected. It is well established that
application of the rule is not waived where a plaintiff raises the rule in response to a defendant’s
assertion of the defense. Prevish v. Northwest Medical Center Oil City Campus, 692 A.2d 192,
197 (Pa. Super. 1997). Plaintiff here has expressly raised and argued the rule in his response.

3. Under the doctrine of corporate negligence, a hospital “is liable if it fails to
uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and
well-being while at the hospital.” Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991). A
hospital’s duties under this doctrine “have been classified into four general areas,” one of which is
“a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the
patients.” Id. In addition to showing (1) that a hospital has deviated from the proper standard of
care, a plaintiff seeking to establish corporate negligence must also show (2) “that the hospital had
actual or constructive knowledge of the defect or procedures which created the harm,” and (3)
that “the hospital’s negligence [was] a substantial factor in bringing about the harm to the injured
party.” Id. at 708. Furthermore, where a hospital’s negligence is not obvious, a plaintiff must
present expert testimony to establish to a reasonable degree of medical certainty the first (breach
of duty) and third (proximate cause) of these elements. Welsh v. Bulger, 698 A.2d 58duty).

4. The Complaint alleges that “[t]he hospital may be held liable under the doctrine
of corporate negligence,” and cites to the leading Pennsylvania case regarding this doctrine,
Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991). Complaint at 6.

5. TJUH contends that one of the reasons Dr. Felder’s expert report is insufficient is
because “Dr. Felder fails to state, as required by Pennsylvania law, that [TJUH] had actual or
constructive notice of the defects or procedures which created the harm.” TJUH Motion for
Summary Judgment at 10. In fact, Pennsylvania law does not require that a plaintiff present
expert testimony regarding this factor. See, e.g., Whittington v. Episcopal Hosp., 768 A.2d 1144,
1149-50 (Pa. Super. 2001). Moreover, the Court specifically does not address whether Plaintiff’s
evidence, other than the expert testimony, is sufficient to satisfy the “actual or constructive
knowledge” element of the corporate negligence doctrine, as this issue has not been raised by
TJUH.

6. Plaintiff has produced two expert reports by Dr. Felder dated November 6, 2002,
and November 22, 2002, respectively. The second report includes much of the same text as the
first, but also includes significant points (from a legal standpoint) not included in the first report.
It should also be noted that the second report is not printed on Dr. Felder’s letterhead (as the first
report is), is not signed by Dr. Felder (as the first report is), and appears to be printed in a
different font than the first report. However, Defendants have not challenged the authenticity of
the second report.

7. Dr. Felder’s curriculum vitae establishes that, among other things, he has been an
attending neurologist at the University of Pittsburgh Medical Center from 1997 to the present, he
was an attending neurologist at the Sharon Regional Health System from 1989 to 1997, he has
previously been a clinical instructor in neurology at the Shenango Valley Medical Center, and the
chief resident in the Department of Neurology at St. Vincent’s Hospital and Medical Center, and
he is Board Certified in Neurology by the American Academy of Clinical Neurology and the
American Board of Psychiatry and Neurology. See TJUH Motion for Summary Judgment, Ex. D.

8. The evidence establishes that Dr. Mancall’s office address is listed as being
located in the Neurology Department at JMC, and that he is currently (1) a professor of
Neurology, (2) the Interim Chair of the Neurology Department, and (3) a member of the
Executive Faculty Committee, at JMC. TJUH Motion for Summary Judgment, Ex. G.

9. There may also be a genuine issue of material fact as to whether Dr. Mancall may
be considered an agent of the hospital with respect to Plaintiff under the “ostensible agency”
theory. Simmons, 481 A.2d at 874. “Two factors relevant to a finding of ostensible agency are:
1) whether the patient looks to the institution, rather than the individual physician for care; and 2)
whether the hospital ‘holds out’ the physician as its employee.” Id. However, the Court need not
address this issue at this juncture as it has not been raised by the parties.

10. Section 115.31 (entitled “Patient medical records”) generally provides that “[a]n
adequate medical record shall be maintained for every inpatient, outpatient and patient treated or
examined in the emergency unit,” and that “[a] patient’s medical records shall be complete, readily
accessible and available to the professional staff concerned with the care and treatment of the
patient.” 28 Pa. Code ? 115.31. Subdivision (e) of section 115.32 (entitled “Contents”) provides
that “[a] medical record shall include the findings and results of any pathological or clinical
laboratory examinations, radiology examinations, medical and surgical treatment, and other
diagnostic or therapeutic procedures.” 28 Pa. Code ? 115.32(e). Subdivision (b) of section
115.33 (entitled “Entries”) provides that “[e]ntries in the record shall be dated and authenticated
by the person making the entry.” 28 Pa. Code ? 115.33(b). Section 115.34 (entitled “Medical
records review”) generally provides that hospitals must establish medical records committees, that
such committees must establish requirements regarding the medical records, and that medical
records shall be reviewed periodically in accordance with rules and regulations formulated by the
medical records committee. See 28 Pa. Code ? 115.34.

11. See Plaintiff’s Response to Dr. Mancall’s Response to Plaintiff’s Motion for
Partial Summary Judgment (Docket Entry No. 39) at ? 7 (“The Court may consider the
recommended standard for hospital medical records preparation cited [in the Administrative
Code] in applying a fair yardstick to measure the ‘Standard of Care in the Philadelphia area’.”).

12. The Court notes that, on their face, these Administrative Code sections do not
appear to apply to individual doctors, but only to health care facilities. See 28 Pa. Code ? 101.3
(“[t]his subpart shall apply to all general and special hospitals within this Commonwealth”).

13. The Court notes that it is not clear how Plaintiff would be able to establish at
trial all of the information that Dr. Mancall did have at the time of his alleged failure to diagnose
Plaintiff’s conditions if the top portion of the examination form is excluded from evidence.
Nonetheless, Plaintiff seeks exclusion of this evidence.

14. The history portion of the medical form actually includes two levels of hearsay:
(1) the assertions by Plaintiff regarding his symptoms, and (2) the written assertions by the
unidentified author of the entry that what is written in the entry comprises an accurate recitation
of Plaintiff’s reported symptoms. However, it is clear that the first level of hearsay falls within the
exception for statements made for the purposes of medical diagnosis or treatment as set forth in
Fed. R. Evid. 803(4). Thus, only the second level of hearsay is at issue here.

Majocha v. Turner

Majocha v. Turner

Majocha v. Turner,
No. Civ. A. 00-552 (W.D. Pa. Sept. 13, 2001)

Parents of a minor patient brought this claim against an ENT physician and
his partners, alleging violations of the Americans with Disabilities Act ("ADA")
and the Rehabilitation Act of 1973. The physician had offered to communicate
in writing with the patient’s father, who was deaf, but the parents insisted
on a sign language interpreter. The physician then sent the parents a letter
cancelling the child’s appointment.

The United States District Court for the Western District of Pennsylvania denied
the physician’s motion for summary judgment. The court held that the letter
alone was sufficient to allow the case to proceed to trial and that the letter
was "as close to a smoking gun as it gets in federal court."

The court also ruled that the mother, who was not hearing-impaired, had standing
under the provisions of the ADA and the Rehabilitation Act that extend protection
to people who have a relationship with a disabled individual.

The court also rejected the physician’s argument that the parents lacked standing
to seek injunctive relief under the ADA, stating that "where a public accommodation
in the health care fields adheres to its policies of refusing to provide the
requested auxiliary aid or had denied treatment altogether to an individual
who seeks to receive treatment at the facility, injunctive relief may be available."

The court ruled that the parents may be entitled to punitive damages because
they offered sufficient evidence from which a jury might find that the physician
acted with reckless indifference to the parents’ rights under the Rehabilitation
Act.

Lastly, the court denied the physician’s partners’ motion for summary judgment
because Pennsylvania law holds partners equally liable for the conduct of other
partners.

Makhoul v. Physician Anesthesia Serv., P.C.

Makhoul v. Physician Anesthesia Serv., P.C.

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

UNPUBLISHED
February 15, 2002

No. 226704
Ingham Circuit Court
LC No. 98-088751-CK

Plaintiffs-Appellants,

CHARLES J. MAKHOUL, D.O., PREM C.
KUNDI, D.O., and ALPHONSUS C.
OKWEREOGU, D.O.,

and

CENTRAL MICHIGAN ANESTHESIOLOGISTS,
P.C.,

v

Plaintiff,

Defendant-Appellee,

PHYSICIAN ANESTHESIA SERVICES, P.C.,

and

SPARROW HEALTH SYSTEM,

Before: Fitzgerald, P.J., and Hood and Sawyer, JJ.

PER CURIAM.

Defendant.

Plaintiffs appeal from an order of the circuit court granting summary disposition to
defendant Physician Anesthesia Services. We affirm.

Plaintiffs are anesthesiologists who practiced together at St. Lawrence Hospital in

Lansing. In 1997, St. Lawrence was acquired by Sparrow Hospital. In 1998, Sparrow Hospital
issued a Request for Proposal to integrate anesthesia services between the two hospitals.
Plaintiffs submitted a proposal under the name Central Michigan Anesthesiologist. Defendant,
which had provided anesthesia services at Sparrow Hospital for a number of years, also
submitted a proposal. Ultimately, the exclusive contract was offered to defendant.

-1-

Thereafter, defendant offered employment to Dr. Makhoul (who is Arabic). No offer was
made to Drs. Kundi (a native of India) and Okwereogu (a native of Nigeria). Ultimately, Dr.
Makhoul was not employed by defendant, though there is some dispute regarding whether the
offer of employment was withdrawn by defendant or refused by Dr. Makhoul. Plaintiffs,
however, in their brief, specifically refer us to the following statement in a sworn affidavit by Dr.
Makhoul:

8. In September 1997 [sic—1998?], Dr. Adelman[defendant’s president]

telephoned me and offered me employment with PAS. I did not solicit that offer;
Dr. Adelman telephoned me without my making any application for employment.
PAS offered a contract of employment to me. In response to that offer, I told Dr.
Adelman that Dr. Okwereogu and Dr. Kundi were my partners and that PAS
should offer contracts of employment to them as well. Dr. Adelman made it clear
to me that he would not offer contracts of employment to Dr. Okwereogu and Dr.
Kundi. After I made that demand that PAS include Okwereogu and Kundi in the
offers of employment, PAS withdrew its offer of employment to me.

Plaintiffs thereafter filed a complaint alleging, among other things, discrimination based
upon race or national origin, retaliation and tortious interference with a business relationship.
Although the trial court granted summary disposition to defendant on all claims, plaintiffs only
address the discrimination claims in this appeal.1

In a discrimination case, the plaintiff initially has a burden to establish a prima facie case

of discrimination. Lytle v Malady (On Rehearing), 458 Mich 153, 172-173; 579 NW2d 906
(1998). Once the plaintiff has established a prima facie case, a presumption of discrimination
arises and the burden shifts to the defendant to articulate a non-discriminatory reason for its
actions. Id. at 173. Once the defendant has done so, the burden shifts back to the plaintiff to
establish that the reason for the defendant’s action was, in fact, discriminatory and not the
legitimate motive put forth by the defendant. Id. at 174. Once the burden has moved back to the
plaintiff, it is not sufficient for the plaintiff to merely dispute the defendant’s proffered reason.
Rather, the plaintiff must establish a triable issue that the defendant’s true motive was
discriminatory. Id. at 175-176.

In the case at bar, the trial court concluded that plaintiffs had established a prima facie

case and that defendant had proffered a legitimate, non-discriminatory reason for not hiring
plaintiffs. Specifically, defendant maintained that it did not offer employment to Drs. Kundi and
Okwereogu because they were incompetent. Defendant even offered written statements, one of
which was written before the merger and Request for Proposal, by surgeons who indicated that
they refused to work with Drs. Kundi and Okwereogu because of concerns over their abilities as
anesthesiologists. As to Dr. Makhoul, defendant maintains that it was Dr. Makhoul who refused
employment with defendant, and not defendant withdrawing the offer of employment.

1 Although Sparrow Hospital was originally a party, they were no longer a party at the time of
the summary disposition.

-2-

The trial court further concluded that, with the burden shifted back to plaintiffs, plaintiffs
failed to present any evidence to support the proposition that defendant’s motive was, in fact,
discriminatory. We agree. Plaintiffs establish that they could create a genuine issue of material
fact regarding the question whether Drs. Kundi and Okwereogu are, in fact, incompetent.
However, they point to absolutely no evidence in support of the proposition that defendant’s true
motive was discriminatory. That is, at most, plaintiffs can point to evidence to establish that
defendant was incorrect in its conclusion that they are incompetent. However, in the absence of
any evidence that defendant was motivated by discrimination rather than, at worst, a mistaken
belief as to their competency, Drs. Kundi and Okwereogu have not met the burden necessary to
survive summary disposition.2

As for Dr. Makhoul, his claim is somewhat derivative in that he was offered employment,
therefore he cannot claim that he was discriminated against. Rather, his claim is based upon that
offer being withdrawn in retaliation for his protesting the discrimination against his partners.
However, for defendant to have improperly retaliated against Dr. Makhoul, it is necessary that its
motivation in not hiring Drs. Kundi and Okwereogu was discriminatory. Because plaintiffs have
presented no evidence of a discriminatory motivation against Drs. Kundi and Okwereogu, it
necessarily follows that there is no evidence that defendant withdrew its offer in retaliation for
Dr. Makhoul objecting to such discriminatory motive.

Finally, we note that defendant briefly discusses an interesting issue. Specifically,
defendant points to the fact that Drs. Kundi and Okwereogu do not appear to ever have actually
applied for employment with defendant. This raises the question whether a discrimination claim
may be established on the basis that an employer did not sua sponte offer employment because of
discriminatory reasons or whether the plaintiff must actually have applied for employment.
However, because the trial court did not base its ruling on this point, we decline to consider it.

Affirmed. Defendant may tax costs.

/s/ E. Thomas Fitzgerald
/s/ Harold Hood
/s/ David H. Sawyer

2 Although not referred to by the trial court in its opinion, we also note that plaintiffs had filed
complaints with the United States Equal Employment Opportunity Commission and the EEOC
dismissed those complaints on the basis that “the EEOC is unable to conclude that the
information obtained establishes violations of the statutes.”

-3-

Makhoul v. Physician Anesthesia Serv., P.C.

Makhoul v. Physician Anesthesia Serv., P.C.

Makhoul v. Physician Anesthesia Serv., P.C.,
No. 226704 (Mich. Ct. App. Feb. 15, 2002)

Plaintiffs
were anesthesiologists who lost their clinical privileges when the hospital where
they practiced was acquired by another hospital. The acquiring hospital issued
a Request for Proposal to integrate anesthesia services between the two hospitals.
Plaintiffs submitted a proposal but the exclusive contract was awarded to the
anesthesia group that had provided anesthesia services at the acquiring hospital
for a number of years.

The group that was awarded the contract offered employment
to one of the three plaintiff anesthesiologists, but no offer was made to the
other two. Plaintiffs sued the group, alleging discrimination based upon race
or national origin, retaliation and tortious interference with a business relationship.
The trial court granted summary judgment to defendant on all claims. Plaintiffs
appealed only on the discrimination claims.

The Michigan Court of Appeals affirmed the summary judgment
for defendants, holding that plaintiffs failed to present any evidence that
defendant’s motive for not hiring all three plaintiffs was discriminatory. Defendant
specifically maintained that it did not offer employment to two of the plaintiffs
because they were incompetent, and offered written statements by surgeons who
indicated that they refused to work with two of the plaintiffs because of concerns
over their abilities as anesthesiologists.

Makris v. Westchester County,

Makris v. Westchester County,

Makris v. Westchester County,
2002 WL 31761404 (N.Y. App. Div. Dec. 9, 2002)

In
an action to recover damages for medical malpractice, the plaintiff appealed
an order of the New York Supreme Court which granted the defendant county and
medical center’s motion for a protective order with respect to certain items
the plaintiff requested during discovery. Holding that many of the plaintiff’s
discovery requests were not vague, overly broad, unduly burdensome, irrelevant
or privileged, the New York Supreme Court Appellate Division modified the orders
of the lower court, holding that the medical center should provide statements
made or given by a particular individually named defendant at or to any meeting
held pursuant to the New York State Peer Review Statute regarding the subject
matter of the plaintiff’s case. The court also held that the plaintiff was entitled
to the medical staff rules of the medical center in effect in 1987, concerning
the qualifications required of a physician to perform the procedures plaintiff
underwent at that time. The Appeals Court then ordered the medical center to
produce the records or reports of any meeting held pursuant to the New York
Peer Review Statute involving the subject matter of the case for an in camera
review by the trial court, in order for the trial court to determine whether
any material therein was exempt from disclosure, and, if so, to perform necessary
redactions.

Malcolm v. Mount Vernon Hosp.

Malcolm v. Mount Vernon Hosp.












Malcolm v Mount Vernon Hosp.
2003 NYSlipOp 17961
Decided on October 30, 2003
Appellate Division, First Department
This opinion is uncorrected and
subject to revision before publication in the Official
Reports.


Decided on October 30, 2003

Mazzarelli, J.P., Ellerin, Williams, Lerner, Gonzalez, JJ.
1420


[*1]Westin
Malcolm, Plaintiff-Respondent, The

v

Mount Vernon Hospital,
Defendant-Appellant, Keith Edwards, M.D., et al., Defendants.





Brian J. Isaac
Gina L. Bernardi



Order, Supreme Court, Bronx County (Kenneth Thompson, J.), entered on or
about January 15, 2002, which, in a medical malpractice action, denied
defendant-appellant hospital’s motion for summary judgment dismissing the
complaint against it, affirmed, without costs.

On January 12, 1997, plaintiff went to his primary physician, Dr. Edwards,
complaining that for two weeks he had a persistent cough, chills, shortness of
breath and difficulty breathing when he was lying down. Dr. Edwards instructed
plaintiff to go to the emergency room of The Mount Vernon Hospital (the
Hospital), where, on January 13, 1997, he received a chest x-ray and was
admitted for pneumonia. Plaintiff remained in the Hospital and was given an
echocardiogram on January 15. Dr. Edwards thereafter sought a cardiac
consultation with Dr. Lee. At his deposition, Dr. Edwards testified that he had
consulted with Dr. Lee, a cardiologist “on staff” at the Hospital, on a number
of prior occasions, and that he had asked the house staff to page Dr. Lee to see
plaintiff.

Dr. Lee is an attending physician at the Hospital who teaches residents in
the intensive care unit (ICU), and holds a clinic at the Hospital four or five
times a year. He saw plaintiff on January 20, 1997, in the ICU of the Hospital
and performed a physical evaluation of him. Dr. Lee reviewed the chest x-ray and
echocardiogram, and concluded that plaintiff suffered from dilated congestive
cardiomyopathy. He prescribed a variety of medications for plaintiff, which did
not include anticoagulation therapy, and he saw plaintiff for follow-up on
January 21, 24, 25, 26 and 27. All of these visits took place in the ICU. [*2]

On January 24, plaintiff suffered a stroke. A neurologist consulted by Dr.
Edwards opined that a stroke in a 46-year-old man without high blood pressure
and with cardiomyopathy was most likely caused by a blood clot breaking off in
the heart.

Plaintiff brought this action against Dr. Edwards, Dr. Lee and the Hospital,
asserting that the stroke and the resulting neurologic deficits arose from
defendants’ failure to administer anticoagulants when his cardiomyopathy was
first detected. As relevant to this appeal, the Hospital moved for summary
judgment, arguing that plaintiff was given appropriate care, and that, in any
event, it could not be held vicariously liable, because plaintiff was a private
patient of Dr. Edwards, and Dr. Lee was a private consultant, not employed by
the Hospital. Plaintiff opposed the motion, arguing that Dr. Lee’s failure to
recommend anticoagulants at the time of his consultation constituted negligence
for which the Hospital could be liable, and that the question of whether the
Hospital was responsible for Dr. Lee’s alleged negligence was for the jury. The
court denied the Hospital’s motion. This appeal ensued.

A hospital is not exempt from liability for the negligence of physicians
utilizing its facilities to practice medicine based upon the particular doctor’s
status as a private attending physician, or an independent contractor (Mduba
v Benedictine Hosp., 52 AD2d 450). Instead, “a hospital may be held
vicariously liable, based upon the principle of agency by estoppel, for the acts
of an independent physician where the physician was provided by the hospital or
was otherwise acting on the hospital’s behalf, and the patient reasonably
believed that the physician was acting at the hospital’s behest (Soltis v
State of New York, 172 AD2d 919)” (Sarivola v Brookdale Hosp. And Med.
Ctr., 204 AD2d 245, 245-46, lv denied 85 NY2d 805).

As the proponent of a motion for summary judgment, the Hospital had the
burden of proving, as a matter of law, that it is not vicariously liable for the
defendant doctor’s alleged acts of negligence. To do this, it must come forward
with sufficient evidence to demonstrate the absence of any material issues of
fact as to whether or not Dr. Lee was acting as its agent. Because the Hospital
did not meet this burden, summary judgment was properly denied (see
Alvarez v Prospect Hospital, 68 NY2d 320, 324; Delprete v Victory
Memorial Hosp., 191 AD2d 673; Augeri v Massoff, 134 AD2d 307).

The record before the motion court was insufficient to make [*3]a conclusive determination that the defendant Hospital
was not responsible for any alleged negligence by Dr. Lee. Although Dr. Lee was
not a Hospital employee, Dr. Edwards chose Dr. Lee from a number of
cardiologists “on staff” at the Hospital who are available for consultations.
Dr. Lee had a number of other teaching and clinical responsibilities at the
Hospital, and he was called to assist with plaintiff’s care in the ICU in
response to a page by Hospital employees. Collectively, these facts preclude our
conclusion, as a matter of law, at this stage in the proceedings, that Dr. Lee
was not “provided by the hospital or was otherwise acting on the hospital’s
behalf” (Sarivola, supra at 245-246; compare Klippel v
Rubinstein, 300 AD2d 448, lv denied __ NY2d __; 2003 NY LEXIS
1763 [where, after trial on the merits, plaintiff failed to proffer any evidence
regarding the nature of the relationship between various treating doctors and
the defendant hospital, vicarious liability charge deemed unwarranted]).

In addition, the Hospital has not shown that plaintiff could not have
“reasonably believed that [Dr. Lee] was acting at the hospital’s behest”
(Sarivola, supra at 246). All of the attendant circumstances of
the particular case are relevant to making this determination (Augeri v
Massoff, 134 AD2d 308). While the dissent attempts to distinguish the facts
of this case and the treatment provided to the plaintiff in Soltis,
supra, it remains that here, as in Soltis, the physicians
conducted their treatment while the plaintiff patients were admitted to the
relevant medical facilities. In addition, there was no evidence in either case
that the patient requested a particular doctor, had any prior relationship with
that physician, or was aware of the particular nature of the doctor’s
affiliation with the medical facility.

All concur except Williams and Gonzalez, JJ. who dissent in a
memorandum by Gonzalez, J. as follows:

GONZALEZ, J. (dissenting)

Contrary to the majority’s holding, I believe that plaintiff has failed to
raise a triable issue of fact on the issue of whether the defendant hospital may
be held vicariously liable for the alleged negligence of the defendant
cardiologist. Therefore, I respectfully dissent.

“When treatment is rendered by a private attending [*4]physician, not in the employ of a hospital, the general
rule is that the hospital is not liable for acts of malpractice which are
committed in carrying out the independent physician’s orders (Toth v
Community Hosp., 22 NY2d 255, 265; Fiorentino v Wenger, 19 NY2d 407,
415)” (Sarivola v Brookdale Hosp. and Med. Ctr., 204 AD2d 245, lv
denied 85 NY2d 805). “However, a hospital may be held vicariously liable,
based on the principle of agency by estoppel, for the acts of an independent
physician where the physician was provided by the hospital or was otherwise
acting on the hospital’s behalf, and the patient reasonably believed that
the physician was acting at the hospital’s behest (Soltis v State, 172
AD2d 919)(emphasis added)” (Sarivola v Brookdale Hosp. and Med. Ctr., 204
AD2d 245-246).

Plaintiff has failed to submit evidence to raise a triable issue as to either
of these two elements, both of which must be
proven for vicarious liability
(Sarivola v Brookdale Hosp. and Med. Ctr., 204 AD2d at 245-246; Soltis
v State of New York, 172 AD2d at 919-920). The evidence shows that the
cardiologist was not employed or paid by the hospital and he did not treat
plaintiff at the hospital’s request. Nor is there any evidence that the hospital
exercised any control over the treatment rendered by him (cf. Mduba v
Benedictine Hosp., 52 AD2d 450, 452-453).

Moreover, although plaintiff entered the hospital via the emergency room, he
did so in response to the instructions of his private attending physician. Thus,
this is not a case “where a patient enters the hospital through the emergency
room and seeks treatment from the hospital, not from a particular physician”
(Shafran v St. Vincent’s Hosp. and Med. Ctr., 264 AD2d 553, 558;
cf. Klippel v Rubinstein, 300 AD2d 448, 449, lv
denied 100 NY2d 508 [vicarious liability charge not warranted where
decedent admitted to hospital under the care of her private doctor for routine
labor and delivery]). Instead, the record shows that the cardiologist performed
a “consult” at the request of plaintiff’s private physician, not the hospital.
Contrary to the majority’s argument, the characterization that the cardiologist
was “on staff” at the hospital is irrelevant given the absence of any actual
proof that he was in fact acting on behalf of the hospital in rendering
treatment to plaintiff (see Klippel v Rubinstein, 300 AD2d at
449).

Nor is there any evidence offered by plaintiff to raise a triable issue of
fact on the question of whether the plaintiff [*5]reasonably believed that the cardiologist was acting at
the hospital’s behest. Soltis v State of New York (172 AD2d 919), cited
by the majority, is distinguishable. In that case, involving an inmate who
received medical treatment by an independent doctor who performed consults on
inmates, there were several factors suggesting that the doctor was working at
the behest of the State. Such facts include that the claimant was initially
examined at the correctional facility by a physician’s assistant employed by the
State, that the assistant arranged for the subsequent consultation by the
private doctor, that the claimant signed a Department of Correctional Services
consent form and that the surgery was also performed at the State facility
(id.). This was ample evidence to suggest involvement by the State and
for the claimant to reasonably believe that those providing treatment were
acting on behalf of the State.

No similar factors are present here, where plaintiff’s treatment was
initiated and controlled by his private attending physician. Moreover, to the
extent the majority’s opinion suggests that a plaintiff’s subjective belief that
a doctor is working on behalf of the hospital, by itself, is sufficient to hold
the hospital vicariously liable, I respectfully disagree (see Sarivola
v Brookdale Hosp. and Med. Ctr., 204 AD2d 245-246). Accordingly, I would
reverse the order denying the Hospital’s motion to dismiss.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 30, 2003

CLERK

Malcolm v. Mount Vernon Hosp.

Malcolm v. Mount Vernon Hosp.

MEDICAL MALPRACTICE / VICARIOUS LIABILITY

Malcolm
v. Mount Vernon Hosp.,
2003 WL 22456359 (N.Y. App. Div. Oct. 30, 2003)

A patient who suffered a stroke while an inpatient in a hospital sued his
primary physician, the consulting cardiologist and the hospital, alleging
malpractice
because he had not been given anticoagulants which would have prevented the
stroke. The hospital argued that the claims against it should be dismissed
because the
physicians involved in rendering the care were not employees. The New York
Supreme Court Appellate Division rejected the hospital’s argument that
it could not be
held vicariously liable, holding that the hospital had not met its burden of
proving that the patient could not have reasonably believed that the physicians
were acting on the hospital’s behalf or that the hospital was not responsible
for the alleged negligence of the physicians.

Malcolm v. Duckett (Summary)

Malcolm v. Duckett (Summary)

NEGLIGENT CREDENTIALING

Malcolm v. Duckett, No. L-10-1110 (Ohio Ct. App. Feb. 25, 2011)

An Ohio appeals court affirmed a lower court’s judgment, granting summary judgment to a defendant hospital and dismissing a patient’s claim for negligent credentialing, finding that the plaintiff’s cause of action was time-barred by a two-year statute of limitation.

A cause of action for negligent credentialing accrues when the plaintiff knows or should know that he or she was injured as a result of a hospital’s negligent credentialing procedures or practices. The court ruled that the “alerting” event occurred when the plaintiff, through her attorneys and her expert witness, had knowledge of the physician’s pattern of negligence in prior cases. The court found that this constructive knowledge was sufficient to put her on notice of the need to investigate the facts and circumstances relevant to her claim and to determine whether the medical malpractice of the physician could have been prevented had the hospital credentialed the physician in accordance with the applicable standard of care. However, because this “alerting event” was more than two years prior to the date that the plaintiff filed the negligent credentialing claim against the hospital, the claim for negligent credentialing was time-barred and dismissed.

 

 

Maio v. Aetna Inc

Maio v. Aetna Inc

Maio v. Aetna Inc.,
No. 99-1854 (3rd Cir., August 11, 2000)

Plaintiffs filed a class action
suit against Aetna alleging violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) and state law. The plaintiffs alleged that
Aetna engaged in a fraudulent scheme designed to induce individuals to enroll
in its HMO plan by representing “that its primary commitment, in connection
with the healthcare services provided to its HMO members, is to maintain and
improve the quality of care given to such members and that defendants’ policies
are designed to accomplish these goals.” The United States District Court
for the Eastern District of Pennsylvania granted defendants’ motion to dismiss
the RICO claims. The court also dismissed the state law claims without prejudice
for lack of subject matter jurisdiction. The plaintiffs appealed. The United
States Court of Appeals for the Third Circuit affirmed the district court’s
decision. In so ruling, the court found that the appellants failed to establish
that they suffered a tangible economic injury compensable under RICO. In its
opinion, the court said: “a showing of injury requires proof of a concrete
financial loss and not mere injury to a valuable intangible property interest.”