Verdicts

Hospital Remains in Suit After Court Finds Ostensible Agency

The Lackawanna County Court of Common Pleas has denied summary judgment to a Pennsylvania hospital that claimed a patient could not reasonably have believed that a contracting physician accused of medical malpractice was a direct employee of the hospital. Oscarson v. Moses Taylor Hospital, PICS No. 16-0194.

The plaintiff, Nathan Oscarson, was seen at Moses Taylor Hospital by Dr. Michael Yoder, an employee of Pathology Associates of Northeastern Pennsylvania Ltd., which practices out of the hospital. Dr. Yoder performed a biopsy on a mass on Oscarson's neck, then determined that the mass was malignant. He recommended that Oscarson undergo a two-part surgical procedure, which he did. It was then discovered that the mass was not malignant. Oscarson sued the doctor and Moses Taylor Hospital for medical malpractice, claiming that the unnecessary surgical procedures he was subjected to left him permanently disfigured and in pain. Even though he learned that Yoder was not an employee of the hospital, he asserted that the doctor was the ostensible agent of the hospital, and that the facility was therefore responsible for the doctor's negligence.

In Pennsylvania, in order to show ostensible agency, a plaintiff must show that: 1) he looked to the hospital to provide his care, not to the specific doctor who provided it; and 2) the hospital held out that doctor as its employee. The hospital here claimed that it had done nothing to hold out Dr. Yoder as its employee to the plaintiff. In addition, it pointed to the plaintiff's own statements that he had “no idea” who Doctor Yoder worked for as evidence that Oscarson did not believe that the doctor was a direct employee of the hospital at the time of the procedures. The court, however, found inadequate basis for the preliminary dismissal of the hospital from the suit, pointing to several factors that could reasonably have led the plaintiff to believe that Dr. Yoder was a hospital employee. These included the facts that when he reported to the hospital, Oscarson was instructed by a hospital employee to report to a specific room for his biopsy, and that the plaintiff had never been treated by and had not met Dr. Yoder before the date of this procedure.

NY Appeals Court Finds Physicians May Opine As to Proximate Cause in Cases Involving Claims Outside Own Specialty

New York's Appellate Division, Second Department, has reversed a trial court's ruling that physicians outside a medical malpractice defendant physician's specialty may not offer their opinions as experts. Bongiovanni v. Cavagnuolo, 2013-10044 (Feb. 3).

The plaintiff sought chiropractic treatment from Doctor Cavagnuolo on Jan. 13, 2011, and was hospitalized after treatments on Aug. 10 and 11, 2011, that allegedly “forcefully” manipulated the thoracic region of the plaintiff's spine and neck. The plaintiff claimed that the treatments caused her to sustain trauma to her C5-C6 disc, and in her chiropractic malpractice case she offered the medical opinions of orthopedic surgeon Dr. Meyer and radiologist Dr. Coyne to support her claim that she suffered from preexisting degenerative changes to her spine's cervical and thoracic regions. The trial court disallowed these opinions as coming from physicians outside the specialty of the defendant doctor.

Disagreeing with the supreme court, the Second Department ruled that an objective opinion as to proximate cause may be rendered by a physician expert in actions involving claims outside the physician expert's specialty, where that opinion on proximate cause is derived from within the physician's specialty. The opinions of Meyer and Coyne were narrowly drawn to address only the separate element of proximate cause. The appeals court found that Dr. Meyer was qualified to express an opinion that the injuries to plaintiff's C5-C6 disc were preexisting and degenerative. Further, Dr. Coyne's opinion was based on review of radiologic films reflecting preexisting degenerative changes that were within the expertise of a radiologist to diagnose.