Valles v. Albert Einstein Medical Center

• Decision Date: 24 August 2000
• Parties: Esmelinda VALLES, Administratrix of the Estate of Lope Valles, Deceased, Ruben Valles, v. ALBERT EINSTEIN MEDICAL CENTER, Leonard H. Cohen, M.D., Archimede J. Silvestri, M.D., Paul H. Steerman, M.D., A. Silvestri Associates, Jay Morros, M.D., Mark Kramer, M.D., and Alan Wladis, M.D., Appellees. Appeal of Esmelinda Valles, Administratrix of the Estate of Lope Valles, Deceased.
• Court: Pennsylvania Superior Court

758 A.2d 1238

Esmelinda VALLES, Administratrix of the Estate of Lope Valles, Deceased, Ruben Valles, v. ALBERT EINSTEIN MEDICAL CENTER, Leonard H. Cohen, M.D., Archimede J. Silvestri, M.D., Paul H. Steerman, M.D., A. Silvestri Associates, Jay Morros, M.D., Mark Kramer, M.D., and Alan Wladis, M.D., Appellees.

Appeal of Esmelinda Valles, Administratrix of the Estate of Lope Valles, Deceased.

Superior Court of Pennsylvania.

Argued April 17, 2000.

Filed August 24, 2000.

Jonathan Briskin, Bryn Mawr, for appellant.

Francis J.J. McGovern, Trevose, for Morros, appellee.

Michael G. Sabo, Philadelphia, for Albert Einstein Medical, appellee.

Before: McEWEN, President Judge, and DEL SOLE, HUDOCK, EAKIN, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN and TODD, JJ.

JOYCE, J.:

¶ 1 This is an appeal from the orders entered by the trial court granting the motion for summary judgment filed by Appellees, Albert Einstein Medical Center (AEMC) and the motion in limine /motion for nonsuit filed by Dr. Jay Morros in the underlying tort action commenced by Appellant, Esmelinda Valles, in her representative capacity as administratrix of the estate of the decedent, Lope Valles. For the reasons set forth below, we affirm. Before addressing Appellant's claims, we will set forth the relevant facts.

¶ 2 The decedent, Lope Valles, was initially admitted to AEMC in November of 1992, complaining of pain in his right foot. At the time of his admission, the surgical practice of Silvestri and Steerman Surgical Associates (SSSA) was designated as Mr. Valles' attending physicians.¹ It was suspected that an aortic aneurysm² was the cause of Mr. Valles' condition. Consequently, he was scheduled to have an aortogram.³

¶ 3 Mr. Valles was a non-insulin dependent diabetic. Due to Mr. Valles' elevated creatine levels, Mr. Valles' physicians consulted with Dr. Mark Kramer, a nephrologist, to ensure that Mr. Valles would be able to tolerate the contrast medium used in the aortogram. Following the consultation, it was determined that Mr. Valles' would be able to tolerate the procedure.

¶ 4 Dr. Muriel Gordon, a resident in the radiology department, obtained Mr. Valles' consent. The aortogram was performed by Steven Allen, D.O., a radiologist employed by AEMC. The aortogram confirmed the presence, location and size of the aortic aneurysm. However, Mr. Valles experienced a reaction to the contrast material and developed moderate renal failure. As a result, surgery to repair the aneurysm was postponed.

¶ 5 Mr. Valles was re-admitted to the hospital in December of 1992 at which time the aneurysm was successfully repaired. Unfortunately, Mr. Valles' kidney condition continued to deteriorate to the point that dialysis was required. To facilitate the dialysis, a temporary catheter was implanted. Mr. Valles developed an infection as well as a deep vein obstruction at the catheter site, thus necessitating its removal.

¶ 6 Because Mr. Valles required dialysis, his physicians decided to implant a more permanent catheter. Dr. Morros was to perform the surgery. Prior to the operation, Dr. Wladis, a medical resident affiliated with SSSA, informed Mr. Valles of the risks associated with the implantation of the catheter. However, he did not know where the catheter was to be placed in Mr. Valles' body and thus did not inform him of the medically recognized or medically viable sites for implantation.

¶ 7 During surgery, Dr. Morros decided to place the catheter in Mr. Valles' right subclavian vein.⁴ Complications ensued in that Dr. Morros was unable to get the catheter to slide into its sheath. In attempting to reinsert a larger sheath, he discovered that the guidewire had penetrated the subclavian vein and entered Mr. Valles' chest, causing a left hemopneumothorax.⁵ At this point, Mr. Valles went into cardiac arrest. Emergency resuscitative efforts commenced and resulted in the restoration of a cardiac rhythm. However, Mr. Valles lapsed into a coma due to oxygen deprivation. Mr. Valles never regained consciousness and died on January 16, 1993.

¶ 8 Ruben and Esmelinda Valles, the decedent's brother and sister, were appointed as the administrators of his estate.⁶ They instituted suit by writ of summons against AEMC and Dr. Cohen, Dr. Silvestri, Dr. Morros, Dr. Kramer and Dr. Wladis, as well as SSSA.⁷ Appellant subsequently filed a complaint in January of 1995. The complaint asserted wrongful death/survival actions premised upon the defendants' alleged negligence and failure to obtain the decedent's informed consent. The defendants filed preliminary objections which were sustained in part and dismissed in part. The defendants thereafter filed answers with new matter and cross-claims.

¶ 9 Through the course of discovery, Appellant narrowed her claims against the remaining defendants to vicarious liability on the part of AEMC, based on Dr. Allen's failure to obtain Mr. Valles' informed consent with respect to the aortogram, and Dr. Morros' failure to obtain Mr. Valles' informed consent regarding implantation of the catheter. AEMC filed a motion for summary judgment in January of 1998. Dr. Morros subsequently filed a motion in limine in which he sought to preclude Appellant from introducing any evidence relating to informed consent. The Honorable Sandra Mazer Moss granted AEMC's motion but denied Dr. Morros' motion, thus leaving Dr. Morros as the sole remaining defendant.

¶ 10 The matter was assigned to the Honorable Samuel M. Lehrer for trial. Before the jury was selected, Dr. Morros renewed his motion in limine. For reasons that are unclear, the trial court characterized Dr. Morros' request as a motion for nonsuit.⁸ The trial court granted Dr. Morros' motion, thus effectively terminating the litigation. Appellant timely appealed both Judge Moss' and Judge Lehrer's orders.⁹

¶ 11 This matter was originally assigned to a panel for disposition. This Court unanimously affirmed the orders entered by the trial court. Appellant subsequently requested reargument en banc. We granted Appellant's request. Having received the parties' supplemental briefs, the matter is now ripe for disposition. Appellant presents two issues on appeal: (1) whether the trial court erred in concluding that AEMC cannot be held vicariously liable for Dr. Allen's failure to obtain the decedent's informed consent with respect to the aortogram; and (2) whether the trial court erred in concluding that the informed consent doctrine did not require Dr. Morros to advise the decedent of alternate sites for placement of the catheter.

¶ 12 With respect to Appellant's second claim, we previously noted that the trial court entered a nonsuit in response to Dr. Morros' motion in limine. The same procedure was utilized by the trial judge and the litigants in Lewis v. United Hospitals, Inc., 547 Pa. 626, 629, 692 A.2d 1055, 1056-1057 (1997). On appeal, our Supreme Court held that it was improper for the trial court to enter a nonsuit before the trial began and before the plaintiff had presented any evidence as to the defendant's liability. Id., 547 Pa. at 631, 692 A.2d at 1058. The Supreme Court suggested, as an alternative, that the trial court should have treated the defendant's motion as a request for summary judgment or motion for judgment on the pleadings. Id., 547 Pa. at 631-632, 692 A.2d at 1058.

¶ 13 Appellant characterizes Dr. Morros' motion as a request for summary judgment. See Appellant's Brief on Reargument at 23-24 n. 6. Dr. Morros has not objected to this procedure. Given the parties' agreement and, in light of our Supreme Court's directive in Lewis, we will regard her second contention as involving the grant of summary judgment. As both of Appellant's claims will be viewed as involving the trial court's grant of summary judgment, we apply the following scope and standard of review:

In examining this matter, as with all summary judgment cases, we must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. In order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Finally, we stress that summary judgment will be granted only in those cases which are clear and free from doubt. Our scope of review is plenary.

Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998) (citations and quotation marks omitted). Accord Southard v. Temple University Hospital, 731 A.2d 603, 609-610 (Pa.Super.1999)

; Grabowski v. Quigley, 454 Pa.Super. 27, 34-36, 684 A.2d 610, 614 (1996),

appeal dismissed as having been improvidently granted, 553 Pa. 75, 717 A.2d 1024 (1998).

¶ 14 With regard to Appellant's first issue, the general rule in Pennsylvania is that, under normal circumstances, only the physician who performs the operation on the patient has the duty of obtaining the patient's informed consent. Boutte v. Seitchik, 719 A.2d 319, 325 (Pa.Super.1998). Hospitals generally have no duty to a patient under the informed consent doctrine. Southard, 731 A.2d at 614. This Court therefore has repeatedly rejected attempts to impose direct liability upon a hospital for failing to obtain a patient's informed consent. See, e.g., Watkins v. Hospital of the University of Pennsylvania, 737 A.2d 263, 268-269 (Pa.Super.1999)

; Southard, 731 A.2d at 614; Kelly v. Methodist Hospital, 444 Pa.Super. 427, 431-435, 664 A.2d 148, 150-151 (1995).

¶ 15 However, this Court carved out an exception to the general rule in Friter v. Iolab Corp., 414 Pa.Super. 622, 607 A.2d 1111 (1992). Friter held that the hospital was directly liable for failing to obtain the patient's informed consent...