Medical Professional Negligence – What’s In A Name? If You’re The Plaintiff, It Doesn’t Matter

By Wendy R.S. O’Connor, Esq.*

The Pennsylvania Superior Court recently held that a plaintiff in a medical professional negligence action may proceed against a health care facility based upon allegations of vicarious liability, even absent the identification of specific individuals whose conduct is imputed to the facility. In Sokolsky v. Eidelman, 2014 Pa. Super. LEXIS 1173 (Pa.Super. June 6, 2014), a legal malpractice action arising from a medical malpractice claim, the trial court granted the defendant attorneys’ motion for summary judgment on the grounds that the plaintiff would not have prevailed on her action against corporate health care defendants. Finding that the trial court abused its discretion, the Superior Court reversed.

Initially, the Superior Court held that the trial court erred as a matter of law in concluding that the plaintiff’s failure to specifically identify the individuals whose liability was imputed to health care provider facilities was fatal to her vicarious liability claims. The court stated that the trial court’s holding “rebuff[ed] both the intent and the purpose underlying [a vicarious liability] theory of recovery” and, further, that “[s]imply because employees are unnamed within a complaint or referred to as a unit, i.e., the staff, does not preclude one’s claim against their employer under vicarious liability if the employees acted negligently during the course and within the scope of their employment.”

The court went on to hold that a health care facility may be subject to liability for the acts of its “staff” and that a plaintiff need not “make a threshold showing that a specific medical practitioner owed a certain duty to [her]” in order to establish a vicarious liability claim against a health care facility. The court further found that the plaintiff’s evidence, including expert reports, was sufficient to establish a prima facie case of medical negligence based upon a vicarious liability theory of negligence such that the grant of summary judgment in favor of the defendant attorneys was improper.

The Superior Court also held that the trial court erred in dismissing the plaintiff’s corporate liability theory of negligence because it had improperly limited its analysis of the plaintiff’s claim to the four factors articulated in Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991). Additionally, the Superior Court found that the trial court incorrectly failed to take into account the factors articulated in §323 of the Restatement (Second) of Torts, as required pursuant to Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 586 (Pa. 2012), as well as those enumerated in Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).

While the Superior Court’s holding with respect to the plaintiff’s corporate liability claims track with prior case law and does not articulate a new standard for such claims, its disposition of the plaintiff’s agency-based cause of action is troubling, as it represents yet another erosion of the plaintiff’s burden of proof in a medical negligence action where vicarious liability claims against a corporate entity are asserted. The holding has implications for the initial pleading stages of a medical negligence lawsuit and for overall defense strategy.

Plaintiffs routinely file complaints asserting that corporate health care providers, such as hospitals or skilled nursing facilities, have acted by and through unnamed agents or employees. Such providers routinely pursue preliminary objections based upon the Pennsylvania Supreme Court’s holding in Connor v. Allegheny Hosp., 461 A.2d 600 (Pa.Super. 1983), with mixed results. The Sokolsky holding suggests that such challenges may become less successful as plaintiffs inevitably argue that the individuals whose conduct is imputed to a corporate health care provider need not be identified in order to withstand preliminary objections grounded in a lack of specificity.

More significantly, Sokolsky leaves unclear precisely what a plaintiff must demonstrate in order to establish a vicarious liability-based claim against a corporate health care defendant. Although the Sokolsky decision recognized that such a defendant “may be subject to vicarious liability for the negligent acts and omissions of its staff regarding the quality of care rendered,” and that a plaintiff must “establish during trial that the staff breached a duty owed to her, and that this breach caused her to suffer damages,” the court’s holding provides no further guidance as to: (1) what a plaintiff must show in order to demonstrate a breach of duty by a defendant’s “staff”; (2) whether specific personnel must ever be identified; and (3) if so, at what point during the course of the proceedings. It would seem that this burden would require the plaintiff to make the requisite showing prior to trial in order to withstand summary judgment, but the language of the opinion fails to set forth what standard would apply as to claims asserted based upon the conduct of unspecified “staff.”

In short, we anticipate that Sokolsky may provide a basis for the denial of agency-based Connors preliminary objections and, as well, that plaintiffs may be permitted to proceed to the jury on vicarious liability-based causes of action without ever being required to identify the specific individuals whose conduct forms the basis of those claims. The language of the Sokolsky decision may permit defendants to attempt to distinguish or discredit the case, but the Sokolsky decision probably represents a further lessening of the plaintiff’s burden of proof such that health care facility entities should expect to see this type of pleading and practice going forward.

*Wendy is an associate in our Bethlehem, Pennsylvania office. She can be reached at 484.895.2304 or wroconnor@mdwcg.com.

Defense Digest, Vol. 20, No. 3, September 2014

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.