Boyd v. Albert Einstein Medical Center

• Decision Date: 22 September 1988
• Citation: 377 Pa.Super. 609,547 A.2d 1229
• Parties: Wayne K. BOYD, in his own right and as Administrator of the Estate of Chardella Boyd, Deceased, and as Parent and Guardian on Behalf of Darren Boyd, and Patrice Boyd, Minor Children of the Deceased, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Northern Division, the Health Maintenance Organization of Pennsylvania, David E. Rosenthal, M.D., Perry L. Dornstein, M.D., Erwin Cohen, M.D., Appellees.
• Court: Pennsylvania Superior Court

Page 1229

547 A.2d 1229

377 Pa.Super. 609

Wayne K. BOYD, in his own right and as Administrator of the Estate of Chardella Boyd, Deceased, and as Parent and Guardian on Behalf of Darren Boyd, and Patrice Boyd, Minor Children of the Deceased, Appellant, v. ALBERT EINSTEIN MEDICAL CENTER, Northern Division, the Health Maintenance Organization of Pennsylvania David E. Rosenthal, M.D., Perry L Dornstein, M.D., Erwin Cohen M.D., Appellees.

Superior Court of Pennsylvania.

Argued June 8, 1988.

Filed Sept. 22, 1988.

Kenneth W. Richmond, Philadelphia, for appellant.

Nancy L. Siegel, Philadelphia, for Health Maintenance, appellee.

Before McEWEN, OLSZEWSKI and CERCONE, JJ.

OLSZEWSKI, Judge:

This is an appeal from the trial court's order granting summary judgment in favor of defendant/appellee, Health Maintenance Organization of Pennsylvania (hereinafter HMO). Appellant asserts that the trial court erred in granting the motion for summary judgment when there existed a question of material fact as to whether participating physicians are the ostensible agents of HMO. For the reasons stated below, we reverse the grant of summary judgment.

The facts, as averred by the parties in their pleadings and elicited through deposition testimony, reveal that at the time of her death, decedent and her husband were participants in the HMO. HMO is a medical insurance provider that offers an alternative to the traditional Blue Cross/Blue Shield insurance plan. ¹ Decedent's husband became eligible for participation in a group plan provided by HMO through his employer. Upon electing to participate in this plan, decedent and her husband were provided with a directory and benefits brochure which listed the participating physicians. Restricted to selecting a physician from this list, decedent chose Doctor David Rosenthal and Doctor Perry Dornstein as her primary care physicians.

In June of 1982, decedent contacted Doctor David Rosenthal regarding a lump in her breast. Doctor Rosenthal ordered a mammogram to be performed which revealed a suspicious area in the breast. Doctor Rosenthal recommended that decedent undergo a biopsy and referred decedent to Doctor Erwin Cohen for that purpose. Doctor Cohen, a surgeon, is also a participating HMO physician. The referral to a specialist in this case was made in accordance with the terms and conditions of HMO's subscription agreement. ²

On July 6, 1982, Doctor Cohen performed a biopsy of decedent's breast tissue at Albert Einstein Medical Center. During the procedure, Doctor Cohen perforated decedent's chest wall with the biopsy needle, causing decedent to sustain a left hemothorax. Decedent was hospitalized for treatment of the hemothorax at Albert Einstein Hospital for two days.

In the weeks following this incident decedent complained to her primary care physicians, Doctor David Rosenthal and Doctor Perry Dornstein, of pain in her chest wall, belching, hiccoughs, and fatigue. On August 19, 1982, decedent awoke with pain in the middle of her chest. Decedent's husband contacted her primary care physicians, Doctors Rosenthal and Dornstein, and was advised to take decedent to Albert Einstein hospital where she would be examined by Doctor Rosenthal. Upon arrival at Albert Einstein emergency room, decedent related symptoms of chest wall pain, vomiting, stomach and back discomfort to Doctor Rosenthal. Doctor Rosenthal commenced an examination of decedent, diagnosed Tietz's syndrome, ³ and arranged for tests to be performed at his office where decedent underwent x-rays, EKG, and cardiac ioenzyme tests. ⁴ Decedent was then sent home and told to rest. ⁵

During the course of that afternoon, decedent continued to experience chest pain, vomiting and belching. Decedent related the persistence and worsening of these symptoms by telephone to Doctors Rosenthal and Dornstein, who prescribed, without further examination, Talwin, a pain medication. At 5:30 that afternoon decedent was discovered dead in her bathroom by her husband, having expired as a result of a myocardial infarction.

Appellant's complaint and new matter aver that HMO advertised that its physicians and medical care providers were competent, and that they had been evaluated for periods of up to six months prior to being selected to participate in the HMO program as a medical provider. The complaint further avers that decedent and appellant relied on these representations in choosing their primary care physicians. The complaint then avers that HMO was negligent in failing to "qualify or oversee its physicians and hospital who acted as its agents, servants, or employees in providing medical care to the decedent nor did HMO of Pa. require its physicians, surgeons and hospitals to provide adequate evidence of skill, training and competence in medicine and it thereby failed to furnish the decedent with competent, qualified medical care as warranted." Paragraph 39, plaintiff's amended complaint. Finally, appellant's new matter avers that HMO furnished to its subscribers documents which identify HMO as the care provider and state that HMO guarantees the quality of care. Plaintiff's new matter, paragraph 18.

Appellant's theory of recovery before the trial court was primarily one of vicarious liability under the ostensible agency theory. See Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980). In granting defendant HMO's motion for summary judgment, the trial court found that plaintiff/appellant had failed to establish either of the two factors on which the theory of ostensible agency, as applied to hospitals in Capan, is based. On appeal, appellant contends that the evidence indicates that there exists a question of fact regarding whether HMO may be held liable under this theory.

Before embarking on a substantive analysis of appellant's claims, we must delineate our well-settled standard of review in cases involving the granting of summary judgment. Initially we note that our standard of review in such cases is plenary. Thornburgh v. Lewis, 504 Pa. 206, 209, 470 A.2d 952, 954 (1983). Summary judgment may be granted:

" 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' Pa.R.C.P. 1035. In considering a motion for summary judgment, the trial court is bound to follow several firmly established principles. Specifically, the court must examine the entire record in the light most favorable to the non-moving party. The court's sole function is to determine whether there is an issue of fact to be tried and not to decide issues of fact. Finally, the court must resolve all doubts as to the existence of a genuine issue of fact against the party moving for summary judgment." See Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981); Schacter v. Albert, 212 Pa.Super. 58, 62, 239 A.2d 841, 843 (1968).

Perry v. Middle Atlantic Lumbermans Association, 373 Pa.Super. 554, 542 A.2d 81 (1988). Summary judgment should not be entered unless the case is free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). Further, the moving party has the burden of proving that no genuine issue exists as to a material fact. For that reason the record is examined in a light most favorable to the non-moving party, and in doing so our Court shall accept as true all well-pleaded facts in the non-moving party's pleadings. Hower v. Witmak Associates, 371 Pa.Super. 443, 538 A.2d 524 (1988).

Preliminarily, we note that Pennsylvania courts first recognized the theory of ostensible agency in Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980).

There, pursuant to instructions by our Supreme Court, we determined that the trial court had erred in failing to instruct the jury on the Restatement (Second) of Torts § 429 (1965). We further pointed out that Section 429 provided an exception to the general rule that an employer is not liable for torts committed by an independent contractor in his employ.

Capan, [supra, ] at 367, 430 A.2d at 648. Section 429 states:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

In adopting the theory of ostensible agency, we noted that several jurisdictions had applied the concept to cases involving hospital liability for the negligence of independent contractor physicians. [Id.] at 368, 430 A.2d at 649. We also noted two factors which contributed to the conclusion by other courts that, although a physician holds independent contractor status with respect to the hospital, he may nevertheless be an agent of the hospital with respect to the patient. First, there is a likelihood that patients will look to the institution rather than the individual physician for care due to the changing role of the hospital in today's society. Second, "where the hospital 'holds out' the physician as its employee[,]" a justifiable finding is that there is an ostensible agency relationship between the hospital and the physician. Id. See also, Simmons v. St. Clair Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). We recognized that a holding out occurs "when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees." Capan, [supra,] at 370, 430 A.2d at 649. (Citation omitted) (Emphasis in original).

Thompson v. Nason Hospital, 370 Pa.Super. 115, 535 A.2d 1177 (1988).

We must, therefore, consider appellant's claim in light of Section 429 and...