Corey, L. v. Wilkes-Barre Hosp. v. PA Phys. Svcs.

J-E02003-23

                             

 LESLEY COREY, AS ADMINISTRATRIX :            IN THE SUPERIOR COURT OF
 OF THE ESTATE OF JOSEPH COREY,  :                 PENNSYLVANIA
 AND LESLEY COREY, IN HER OWN    :
 RIGHT                           :
                                 :
                  Appellant      :
                                 :
                                 :
            v.                   :            No. 507 MDA 2021
                                 :
                                 :
 WILKES-BARRE HOSPITAL COMPANY, :
 LLC, D/B/A WILKES-BARRE GENERAL :
 HOSPITAL, WILKES-BARRE GENERAL :
 HOSPITAL EMERGENCY DEPARTMENT :
 AND J. CHARLES LENTINI, M.D.    :
            v.                   :
                                 :
                                 :
 PENNSYLVANIA PHYSICIANS         :
 SERVICES, LLC                   :
                                 :
            Additional Defendant :
                                 :

            Appeal from the Judgment Entered March 24, 2021
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               2015-07551


BEFORE: PANELLA, P.J., BOWES, J., OLSON, J., DUBOW, J., KUNSELMAN,
        J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

CONCURRING OPINION BY OLSON, J.:          FILED: DECEMBER 11, 2023

      I agree that the judgment entered in favor of Appellee, Wilkes-Barre

Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital (“WBGH”) should

be affirmed for the reasons set forth in the learned Majority’s Opinion. I write

separately, however, as I believe that prior case law addressing the corporate

negligence doctrine as it applies to hospitals has created some confusion.
J-E02003-23



Nonetheless, when carefully analyzed, I conclude that prior precedent

regarding the corporate negligence doctrine, particularly as it pertains to a

hospital’s duty to oversee its medical personnel, reaffirms that the trial court’s

decision to enter a nonsuit on Appellant’s corporate negligence claim against

WBGH was correct.

      As noted by the Majority, our Supreme Court in Thompson v. Nason,

 (Pa. 1991) “first adopted the theory that a corporation,

specifically a hospital, can be held directly liable for corporate negligence.”

Welsh v. Bulger, 

, 585 (Pa. 1997).               At the outset, the

Thompson Court explained the doctrine of corporate negligence as follows:

       Corporate negligence is a doctrine under which the 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.         This theory of liability creates a
       nondelegable duty which the hospital owes directly to a patient.
       Therefore, an injured party does not have to rely on and
       establish the negligence of a third party.

 A.2d at 707. In defining the contours of this theory, the

Supreme Court channeled a hospital’s duties into the following “four general

areas:”

       (1) a duty to use reasonable care in the maintenance of safe
       and adequate facilities and equipment; (2) a duty to select and
       retain only competent physicians; (3) a duty to oversee all
       persons who practice medicine within its walls as to patient
       care; and (4) a duty to formulate, adopt and enforce adequate
       rules and policies to ensure quality care for the patients.




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 (citations omitted). The Thompson Court further instructed that, to hold

a hospital directly liable under the newly-adopted theory of corporate

negligence, a plaintiff must demonstrate that the “hospital had actual or

constructive knowledge of the defect or procedures which created the harm”

and that “the hospital’s negligence [was] a substantial factor in bringing about

the harm to the injured party.” Id. at 708. See Kennedy v. Butler Mem.

Hosp., 

, 1045 (Pa. Super. 2006) (element of actual or

constructive notice is critical because “the corporate negligence doctrine

contemplates a kind of systemic negligence in the actions and procedures of

the hospital rather than in the individual acts of its employees”). Hence, the

Thompson Court, for the first time, held that a hospital had a responsibility

to “ensure [a] patient’s safety and well-being while at a hospital” and imposed

liability directly upon a hospital if it “fail[ed] to uphold any of the . . . four

[expressly enumerated] duties.” Whittington v. Episcopal Hosp., 

, 1149 (Pa. Super. 2001), citing 

 A.2d at 707-708.

       Since its inception, the “new concept of liability, i.e., ‘corporate liability’,

[as applied to hospitals] was recognized to be in tension with other theories

of   liability,   namely,   vicarious   liability,   including   ostensible   agency.”

 A.2d at 709 (J. Flaherty) (Dissenting Opinion). In fact, in

Thompson, then-Justice, later Chief Justice Flaherty criticized the High

Court’s decision to “adopt[] an entirely new concept of liability” and apply it

to hospitals “in order to hold them liable as guarantors of the quality of care

afforded by independent staff members.” 

             Chief Justice Flaherty’s main

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criticism was his belief that corporate liability, as outlined in Thompson, was

“in every sense of the term an anomaly to established concepts of liability

under respondeat superior.”      Welsh, 698 A.2d at 589 (C.J. Flaherty)

(Dissenting Opinion).

      In light of this inherent tension, appellate courts subsequently

endeavored to “better discern the[] outlines” of Thompson by contrasting its

“enumerated duties . . . with the well-established theories of vicarious

liability.” Edwards v. Brandywine Hosp., 

, 1386 (Pa. Super.

1995). In so doing, this Court explained when a hospital will be held directly

liable under the doctrine of corporate liability as enunciated in Thompson.

As the Majority acknowledges, we previously stated:

       The Thompson theory of corporate liability will not be triggered
       every time something goes wrong in a hospital which harms a
       patient. Acts of malpractice occur at the finest hospitals, and
       these hospitals are subject to liability under theories of
       respondeat superior or ostensible agency.         To establish
       corporate negligence, a plaintiff must show more than an act of
       negligence by an individual for whom the hospital is
       responsible. Rather, Thompson requires a plaintiff to show
       that the hospital itself is breaching a duty and is somehow
       substandard. This requires evidence that the hospital knew or
       should have known about the breach of duty that is harming its
       patients.

       Thus, a hospital is not directly liable under Thompson just
       because one of its employees or agents makes a mistake which
       constitutes malpractice. Just as regular negligence is measured
       by a reasonable person standard, a hospital's corporate
       negligence will be measured against what a reasonable hospital
       under similar circumstances should have done. Thompson
       contemplates a kind of systemic negligence, such as where a
       hospital knows that one of its staff physicians is incompetent
       but lets that physician practice medicine anyway; or where a


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J-E02003-23


       hospital should realize that its patients are routinely getting
       infected because the nursing staff is leaving catheters in the
       same spot for too long, yet the hospital fails to formulate, adopt
       or enforce any rule about moving catheters. Thompson does
       not propound a theory of strict liability, a theory that [the
       appellant’s] brief argues and the trial court found so disturbing.
       Though broadly defined, Thompson liability is still fault
       based.

Edwards, 

1386–1387 (internal citations omitted, emphasis

added).    Pennsylvania courts, in recognition of the foregoing, have limited

recovery   for   corporate   negligence   to   instances   in   which   a   plaintiff

demonstrates “systemic negligence” on the part of a hospital. Id.; see also

Welsh, 698 A.2d at 585 (“A cause of action for corporate negligence arises

from the policies, actions or inaction of the institution itself rather than the

specific acts of individual hospital employees”); Boring v. Conemaugh

Memorial Hosp., 

, 861 (Pa. Super. 2000) (holding that the

plaintiff simply established “that the nurses failed to act appropriately in this

case” and failed to show “’systemic’ negligence” on the part of the hospital

and, as such, the trial court correctly declined to charge the jury on corporate

negligence).

      Four years after our Supreme Court decided Thompson, this Court

decided Edwards, 

 Our decision in Edwards serves as an example of

how this Court differentiates systemic hospital corporate negligence as

required by Thompson from ordinary negligence. In Edwards, the plaintiff,

Charles Edwards, a 69-year-old man with an artificial hip, arrived at the

Brandywine Hospital emergency room complaining of hip pain. Edwards was



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admitted to the hospital, “and the nursing staff installed a heparin lock on his

left hand” which “allow[ed] multiple intravenous fluids to be introduced at a

common point.” Edwards 

. Edwards stayed at Brandywine

Hospital for five days and, during his stay, the heparin lock was left in place

on his hand for three or four days. After his discharge, Edwards noticed a red

spot on the back of his hand where the heparin lock had been located.

Edwards returned to the hospital emergency room, wherein a doctor examined

his hand, obtained a sample of pus for analysis, and sent Edwards home with

a prescription for oral antibiotics. It was later revealed through lab tests that

Edwards had a staphylococcus aureus (“staph”) infection. The physician that

treated Edwards in the emergency room “placed the lab results in diagnosis

in [his] chart, as required by hospital rules.” 

      A few days later, Edwards returned to the hospital complaining of leg

pains. He stayed at the hospital for a week because the attending physician

“did not notice the recent diagnosis of staph infection in his chart.”       

Ultimately, additional lab testing was ordered, which again showed the

presence of a staph infection. This time, the doctor ordered the administration

of intravenous antibiotics to Edwards. Edwards was then discharged as the

doctor believed that the infection had been eradicated. A week later, Edwards

returned to the hospital with pain and a fever.       At this time, the doctors

believed that the staph infection was not fully treated and had spread to

Edwards’ artificial hip. After a month-long stay at the hospital, Edwards was

discharged but, over the course of the next two years, he endured more

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treatment and hospitalizations. Eventually, to treat the infection, the doctors

removed Edwards’s artificial hip and administered massive doses of

antibiotics. As a result, Edwards required crutches or a walker to ambulate.

Thereafter, Edwards brought suit against Brandywine Hospital seeking

recovery for, inter alia, corporate negligence. The case proceeded to trial but,

at the close of Edwards’ case-in-chief, the trial court granted Brandywine

Hospital’s motion for directed verdict. In so doing, the court held that the

hospital could not be found liable under the theory of corporate negligence

adopted by Thompson. Edwards appealed.

      In reviewing Edwards’ claim of error, this Court initially recognized that,

to recover under Thompson a plaintiff must demonstrate “a kind of systemic

negligence.” 

. We then noted that Edwards’ “specific claims,” for

the most part, “amount[ed] to no more than individual acts of negligence for

which the hospital, as a corporate entity, could not be held directly liable.”

   Importantly, Edwards set forth the following five claims: (1) “the

[emergency room] doctor who examined his hand should have immediately

put him on intravenous antibiotics;” (2) “the hospital’s laboratory notification

procedure was deficient” because his treating physicians failed to notice the

lab report for at least a week which indicated that he had a staph infection;

(3) “the hospital was deficient for adopting a rule allowing its physicians

complete discretion in deciding when to consult experts;” (4) the hospital

discharged him prematurely; and (5) the hospital’s rule “allowing catheters to




                                      -7-
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be left in place for as long as 72 hours [“72-hour rule”]” was inappropriate.

.

      Ultimately, this Court held that, based upon the evidence presented, the

trial court correctly granted Brandywine Hospital’s motion for directed verdict

with respect to Edwards’ first four claims of corporate negligence.         In

particular, the Court held that Edwards’ first, second, and third theories of

liability failed because he did not introduce any evidence that the hospital

“knew or should have known” of its providers’ alleged negligence or “that a

reasonable hospital would have intercepted and corrected [said errors].” 

.   Without this proof, the Court concluded that Edwards failed to

demonstrate the type of “systemic negligence” contemplated by Thompson.

   Importantly, and as relevant herein, this Court reached a similar

conclusion regarding Edwards’ fourth claim of error, i.e., that the hospital

discharged him prematurely. We stated:

       The discharge claim is similar. [] Edwards may have been able
       to prove that his physicians discharged him prematurely. He
       may have been able to convince a jury that he was discharged
       because his Medicare hospitalization coverage was exhausted.
       But the decision to discharge [] Edwards was made by a single
       physician, not the hospital as a corporate entity. Thus, the
       hospital cannot be held liable for a discharge error absent proof
       that it knew that [] Edwards’ discharge was premature, or that
       its physicians were regularly making bad discharge decisions.

. This Court, however, held that Edwards’ fifth theory of

liability was the “only properly developed Thompson claim” because it




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“concerned the hospital’s rule for moving intravenous catheters.” 

.

It explained:

        This situation implicates not just an individual mistake, but the
        hospital’s duty to formulate, adopt and enforce adequate rules
        and policies to ensure quality care for its patients. If [] Edwards
        could prove that the 72-hour rule was inadequate, that the
        hospital should have known better, and that following this rule
        caused him harm, then he has made out a proper Thompson
        claim.

 (parallel citations, internal quotations and quotation marks omitted). The

Edwards Court, therefore, held that the trial court erred in directing a verdict

with regard to Edwards’ final claim.1 

       In a pair of cases issued after Edwards, this Court appears to have

endorsed an alternate path toward recovery under the theory of corporate

hospital negligence, one which recognized repeated – but perhaps not

systemic – violations of Thompson’s oversight duty. I believe that, at this

time, this Court was confronted with factual scenarios that, if not properly

interpreted and confined, could result in the convergence of the doctrines of

corporate negligence and vicarious liability as Chief Justice Flaherty feared.

       In Whittington, supra, the estate of decedent, Claudette E. Milton,

brought a wrongful death and survivorship action against Episcopal Hospital

based upon the care it provided to Milton during her pregnancy and childbirth.


____________________________________________


1 Importantly, this determination related to the hospital’s duty to formulate

rules and policies to ensure a patient’s quality care, not a hospital’s duty to
oversee its’ medical personnel as relevant herein. See 

 A.2d
at 707.

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During her pregnancy, Milton was treated by Dr. Carol Allen. On December

15, 1993, Milton was evaluated by Dr. Allen and, during her visit, complained

of lightheadedness, abdominal swelling, heartburn and leg pain. Ultimately,

Milton   was    diagnosed     with    pregnancy    induced   hypertension   (“PIH”).

“Notwithstanding the PIH diagnosis and the need to have labor induction

initiated immediately,” Milton was “sent home with only a prescription for iron

supplements, which did not relate to the treatment for PIH.”         Whittington,

.      Moreover, “[n]o one at Episcopal [Hospital] advised [her]

of the risk of PIH, even in light of a documented family history of PIH.” 

       Seven days later (December 22, 1993), Milton again visited Dr. Allen.

This time, Milton lodged complaints of irregular contractions.         Subsequent

testing revealed a “clearly elevated blood pressure” as well as +2 proteinuria.2

   Again, “[n]otwithstanding the [aforementioned results], which should

have mandated immediate initiation of labor induction, Episcopal [Hospital’s]

staff neither admitted [] Milton, nor even questioned Dr. Allen’s instructions

that [Milton] go home and wait until December 23, 1993 for labor induction.”

.

       On December 23, 1993, Milton arrived at Episcopal Hospital for labor

induction and was admitted at 7:30 a.m. A review of her prior records would

have shown her diagnosis of PIH, which necessitated she be sent immediately
____________________________________________


2 Proteinuria is a condition in which abnormally high quantities of protein are

detected in the urine. The condition may indicate damage to the kidneys.
HTTPS://my.clevelandclinic.org/health/diseases/16428-proteinuria    (last
visited 10/12/23).

                                          - 10 -
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to labor and delivery (“L&D”) for induction. However, Milton’s records were

ignored and she was sent to the waiting room where, in violation of the

hospital’s own policy, she “was essentially ignored for close to 14 hours.” 

.   At 9:00 p.m., Milton, still in the waiting room, complained of

headaches and her blood pressure was elevated to 181/100. As such, Milton

was finally transferred to L&D for induction.    While in L&D, Milton showed

“consistently elevated blood pressure throughout the night but blood pressure

lowering drugs, essential for her condition, were not ordered until 7:00 a.m.

the next morning” and “were not administered to her until 8:40 a.m.” 

 At

this time, Milton’s condition deteriorated further.

      At 11:30 a.m., December 24, 1993, Milton was rushed to the operating

room for an emergency cesarean section.         The procedure, however, was

delayed at least an hour and was ultimately performed “under clearly

unfavorable conditions” as Episcopal Hospital’s staff “did not order the

necessary [deep vein thrombosis (“DVT”)] prophylaxis . . . or even put

antithrombin hoses on [her].”     

 This resulted in blood clots forming in

Milton’s lungs.   Following her cesarean section, Milton briefly regained

consciousness, but her condition continued to deteriorate, resulting in a

transfer to the intensive care unit (“ICU”). Milton’s time in the ICU was met

with continued incompetent care, causing her to develop Adult Respiratory

Distress Syndrome. Milton died on January 4, 1994. Her estate brought an

action against Episcopal Hospital, asserting various claims, including corporate

liability. The matter proceeded to a jury trial, wherein the jury concluded that

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Episcopal Hospital was corporately liable for Milton’s death. Episcopal Hospital

appealed to this Court.

      On appeal, Episcopal Hospital argued that Milton’s estate failed to

establish a prima facie case of corporate negligence and, as such, it was

entitled to judgment notwithstanding the verdict (“JNOV”).           This Court

disagreed, concluding that Milton’s estate established that “Episcopal

[Hospital] failed in its duty to oversee all persons who practice medicine within

its walls as to patient care, the third duty enumerated in Thompson.” 

      In reaching this conclusion, the Whittington Court noted that Milton’s

estate established, through expert testimony, that Episcopal Hospital

“deviated from the standard of care on the [15th, 22nd, 23rd, and 24th] of

December [] 1993, as well as in rendering post[-]delivery medical care to

[Milton].”    

.   In particular, the estate’s expert opined that, on

December 15th and 22nd, the conduct of the health care providers at

Episcopal Hospital fell below the standard of care because, despite recognizing

that Milton was at term, was diagnosed with PIH and showing “classic

symptomology of toxemia or preeclampsia,” Milton was allowed to go home

without a complete evaluation and told to return for induction eight or nine

days later.    

   The expert claimed that this failure substantially caused

Milton’s death because Milton “needed to be delivered.” 

. If Milton

were delivered at this time, the expert believed that “the fulminate aspect of

the toxemia would not have occurred so rapidly,” and that Milton “would have

had a successful delivery[] and would be alive today.” 

.

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      In addition, the expert opined that, at the time Milton presented for

induction of labor on December 23rd through the delivery of the baby on

December 24th, “the standard of care did not improve.” 

.      Chiefly,

the expert criticized the fact that Episcopal Hospital ignored Milton’s prognosis

of PIH as set forth in her records and sent her to the waiting room for

approximately 14 hours.

       All of the information [showing the need for immediate
       induction] was readily available and mandatory to be reviewed
       in a patient who presents at 350 pounds at 42 weeks for an
       induction. None of that was done. And that is a deviation,
       number one, by anyone and everyone that had to do with the
       patient from the time of 7:30 [a.m.] on.

 (emphasis omitted). As a result of the aforementioned failures, the expert

opined that Episcopal Hospital performed Milton’s cesarean section “under the

worst conditions.” 

 (emphasis omitted).

       And by the time they finally delivered this patient, [her
       preeclampsia] was not only fulminate, it was life threatening,
       because that patient was so sick. She now had her lungs filled
       with fluid, called pulmonary edema; she [is] having a major
       operation in the worse possible circumstances, with blood
       pressures out of control, pulmonary edema, fluid in the lungs,
       a baby that [is] in trouble. This is the worst[-]case scenario
       that you can put yourself into. And it did not have to happen.

 (emphasis omitted).     Finally, the expert criticized Episcopal Hospital’s

post-operative care, noting that they failed to “provide the minimum

prophylaxis to prevent [DVT].” 

 The expert concluded that Milton’s death

was caused by all of the failures set forth above.




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      Ultimately, the Whittington Court determined that, based upon

Episcopal Hospital’s “numerous and recurring deviations from the standard of

care,” Milton’s estate did, in fact, establish that Episcopal Hospital violated

Thompson’s oversight duty, which caused Milton’s untimely death. 

; see also 

 (“While some of Episcopal [Hospital’s] numerous negligent

acts acts/omissions would help support a finding of corporate negligence

under more than one of the four enumerated duties, our review concerns the

cumulative nature of the conduct used to establish corporate

negligence under the third duty in Thompson.”) (emphasis added). This

Court also held that Milton’s estate established that Episcopal Hospital had

constructive notice of the defects or procedures creating Milton’s injury.

Specifically, the Whittington Court concluded that Episcopal Hospital could

“properly be charged with constructive notice since it should have known of

[Milton’s] condition.” 

 It stated:

       Had Episcopal [Hospital] undertaken adequate monitoring, it
       would have discovered that [Milton] had received and was
       continuing to receive medical treatment that was clearly
       deficient before and after her delivery. We are compelled to
       find constructive notice under these circumstances.

      This Court’s ruling in Whittington aligns with another decision of this

Court, also issued subsequent to Edwards. In Shannon v. McNulty, 

, 836 (Pa. Super. 1998), Sheena Evans Shannon was a subscriber of

the HealthAmerica Health Maintenance Organization (“HealthAmerica HMO”),



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when she became pregnant. Through HealthAmerica HMO, Shannon chose

Larry P. McNulty, M.D. to serve as her OB/GYN.    Importantly, HealthAmerica

HMO instructed her to either contact her physician or HealthAmerica HMO in

the event of medical questions or medical emergencies.

      On October 2, 1992, when Shannon was approximately five months

pregnant, Shannon called Dr. McNulty complaining of abdominal pain.        On

October 5, 1992, Shannon had an appointment with Dr. McNulty, wherein he

briefly examined her and concluded Shannon’s pain was due to a fibroid

uterus. He did not conduct any additional testing to confirm this diagnosis.

Thereafter, Shannon proceeded to call Dr. McNulty’s office on October 7th,

October 8th, and October 9th, 1992, because of continuing abdominal pain,

back pain, constipation and the inability to sleep. During her call on October

8, 1992, Shannon informed Dr. McNulty that her pains were irregular and

about ten minutes apart. As such, Shannon asked Dr. McNulty if she could be

in pre-term labor. Dr. McNulty stated she was not in pre-term labor, basing

this statement on his examination on October 5, 1992. On October 10, 1992,

Shannon called HealthAmerica HMO’s emergency line, informing them of her

“severe irregular abdominal pain, back pain, that her pain was worse at night,

that she thought she may be in pre-term labor, and about her previous calls

to Dr. McNulty.” 

. The triage nurse on the emergency line directed

Shannon to call Dr. McNulty.

      On October 11, 1992, Shannon called HealthAmerica HMO’s emergency

line again, stating her symptoms continued to worsen, and Dr. McNulty was

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not responding. Again, the triage nurse directed Shannon to call Dr. McNulty.

Shannon did so, informed Dr. McNulty of her symptoms, and, for the second

time, relayed her fear that she was in pre-term labor. Dr. McNulty “was again

short with her” and angrily insisted that she was not in pre-term labor. 

Finally, on October 12, 1992, Shannon called HealthAmerica HMO’s

emergency line, “told the nurse about her symptoms, severe back pain and

back spasms, legs going [numb], more regular abdominal pain, and [that] Dr.

McNulty was not responding to her complaints.” 

 A HealthAmerica HMO

orthopedic physician ultimately spoke with Shannon and directed her to go to

West Penn Hospital, which was approximately an hour away from her home.

Shannon obliged, passing three other hospitals on her way to West Penn

Hospital. At West Penn Hospital, Shannon delivered a one and one-half pound

baby boy who survived for two days.

      Shannon and her husband, in their own right and on behalf of their son’s

estate, brought suit against, inter alia, HealthAmerica HMO. Of relevance, the

Shannons alleged that HealthAmerica HMO was liable under the theory of

corporate negligence for its “negligent supervision of Dr. McNulty’s care.” 

. The matter proceeded to a jury trial, but the trial court ultimately

nonsuited the Shannons’ claims. They appealed to this Court.

      This Court reversed the trial court’s grant of nonsuit, concluding that the

Shannons set forth sufficient evidence to sustain a claim of corporate

negligence.   Initially, the Court reviewed the testimony of the Shannons’




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expert, Stanley M. Warner, M.D. When asked whether HealthAmerica HMO

deviated from the standard of care, Dr. Warner stated:

       I believe they did deviate from the standard of care. I believe
       on each occasion of the calls on October 10th, 11th, and
       October 12th, that [] Shannon should have been referred to the
       hospital, and the hospital notified that this woman was probably
       in pre[-]term labor and needed to be handled immediately.
       They did have the alternative of calling for a physician, if they
       wanted to, for him to agree with it, but basically she needed to
       be evaluated in a plac[e] where there was a fetal monitor and
       somebody to do a pelvic examination to see what was
       happening to her.

. Dr. Warner further opined that this deviation “increase[d] the risk

of harm to the baby, and definitely decreased the chance of [the baby] being

born healthy.” 

 Based upon the foregoing testimony, the Shannon Court

concluded that the Shannons did, in fact, present sufficient evidence to

establish a prima facie case that HealthAmerica HMO breached Thompson’s

third duty and, in so doing, caused the Shannons’ child’s untimely death.

      This Court’s holdings in Whittington and Shannon, at first blush, may

appear a bit inconsistent with the holding in Edwards.       Upon a thorough

review, however, it is apparent that, unlike in Edwards, this Court in both

Whittington and Shannon confronted medical personnel who provided

inadequate care over extended periods of time and who “regularly ma[de] bad

discharge decisions.” Edwards, 

. Hence, as we indicated

in Edwards, this Court in Whittington and Shannon recognized that the

medical providers’ “numerous and repeated deviations from the standard of

care” amounted to systemic negligence that can and, ultimately, did give rise


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to corporate negligence liability on the part of the hospital. Whittington, 76

A.2d at 1153; see also Shannon, 

               Taken together, therefore, it

appears that Edwards, Whittington and Shannon consistently hold that a

plaintiff sets forth sufficient evidence to sustain a cause of action of corporate

negligence based upon a violation of Thompson’s oversight duty if he or she

demonstrates systemic shortcomings in diagnostic or treatment practices,

such as where patient care and safety are negligently overlooked and/or

ignored despite repeated presentations over extended periods of time until it

is too late to act.

       Importantly, this Court’s recent decision in Ruff v. York Hospital, 

 (Pa. Super. 2021) serves as a prime example of the application of

corporate negligence within the confines outlined above. In Ruff, Linda J.

Shifflet, presented to Hanover Hospital on May 24, 2014, complaining of

shortness of breath. A Hanover Hospital emergency department physician,

Dr. Micheal Denney, determined that Shifflet had a small heart attack with

some fluid in her chest, which caused congestive heart failure.             Due to

concerns that Shifflet might require a heart catheterization, Dr. Denney

requested she be transferred to York Hospital.             Once admitted to York

Hospital, Shifflet was examined by Dr. Lyle Siddoway, who later determined

that   Shifflet’s     congestive   heart   failure   and    respiratory   weakness

contra-indicated that she was stable enough to undergo a catheterization

procedure that day. Dr. Siddoway, as well as Dr. Gregory Fazio, monitored

Shifflet during the following week but continued to conclude that the risks of

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catheterization outweighed the benefit of performing the procedure. On June

1, 2014, Shifflett went into cardiogenic shock.         A catheterization was

performed revealing coronary artery blockage, and bypass surgery was

performed. On June 7, 2014, Shifflet died.

      Shifflet’s estate instituted a wrongful death and survival action against

York Hospital alleging, inter alia, corporate negligence on the part of York

Hospital. The matter proceeded to a jury trial. Ultimately, the jury returned

a verdict in favor of the hospital.     The estate filed a post-trial motion,

requesting a new trial and JNOV, which the trial court denied. The estate then

lodged an appeal in this Court.

      On appeal, the estate claimed it was entitled to a new trial and/or JNOV

on   the   corporate   negligence   claim   because   York   Hospital   breached

Thompson’s oversight duty by failing to supervise the physicians responsible

for Shifflet’s care. In particular, the estate argued that it demonstrated that

“York [Hospital’s] failure to ‘monitor and oversee the medical care of . . .

Shifflet at the point of care so as to obtain and require a timely, definitive

diagnosis of her obstructive coronary artery disease’ constituted a diagnostic

error causing Shifflet’s death.” Id. at 53. This Court disagreed.

      First, the Ruff Court noted that the estate’s theory that Thompson’s

oversight duty encompassed point-of-care supervision was unsupported. In

particular, this Court stated:

       [The estate] offered no authority, nor has our independent
       research discovered, any decision interpreting Thompson’s


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       oversight duty to mandate that a hospital direct or override a
       physician’s clinical judgment.

Id. at 54. Second, the Ruff Court noted that the estate’s theory of point of

care supervision was rejected by the jury. It stated:

       Clearly, the jury accepted the testimony of York [Hospital’s]
       witnesses that it fulfilled its oversight duty and rejected [the
       estate’s] position that the hospital was charged with mandating
       or superseding physicians’ clinical judgment.

Id. Shifflet’s presentation and weeklong hospital stay established a sufficient

factual basis to submit the estate’s corporate negligence claim to a jury and

allowed the jury to consider whether the facts demonstrated systemic or

recurring departures from the standard of care pertaining to personnel

oversight for which the provider hospital could be held directly liable. Despite

this, we squarely rejected the estate’s contention that a defendant hospital

must be held directly liable where it simply fails to supersede or override the

clinical and/or diagnostic judgments of its medical personnel. In other words,

Shifflet’s estate presented sufficient evidence to support the submission of the

oversight claim to the jury, but the hospital’s mere failure to countermand the

clinical and diagnostic decisions of Shifflet’s individual treatment providers was

not sufficient to compel us to set aside the findings of the jury.

      It is therefore apparent that, based upon all the foregoing, the viability

of a claim of corporate negligence based upon a violation of Thompson’s

oversight duty is factually specific. It is, however, important to recognize that,

since its inception, corporate negligence has always been considered to be

fault based. Edwards, 

 (“Thompson does not propound a

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theory of strict liability . … Though broadly defined, Thompson liability is still

fault based.”). In other words, “a plaintiff [must] show that the hospital itself

is breaching a duty and is somehow substandard.” 

. Vicarious

liability, on the other hand, is not based upon a violation by the hospital but,

instead, is imposed upon a hospital based upon a showing that a medical

provider which it employs acted negligently or otherwise departed from the

standard of care. Thus, to distinguish a claim of corporate negligence based

upon a violation of Thompson’s oversight duty from that of vicarious liability,

the law must insist that there be evidence that implicates or triggers the

hospital’s duty as a corporation to take corrective action to address the

behavior or conduct of its personnel.              See Edwards, 

(explaining that Edwards failed to introduce evidence “that a reasonable

hospital would have intercepted and corrected” the medical provider’s errors).

To me, this requires a showing of “numerous and repeated deviations from

the standard of care” by hospital personnel. Whittington, 76 A.2d at 1153;

see also Shannon, 

 Such conduct over a period of time would allow

health care providers, namely, nurses, sufficient time to observe and “go to

their supervisor[s] and inform [them of the] problem[s] that [] developed”

and, in turn, an opportunity for hospital supervisors to implement corrective

action.3 Whittington, 

. I believe our prior cases require

____________________________________________


3 There may be some instances where the repetition or duration required may

be diminished, such as where a departure from the standard of care involves
(Footnote Continued Next Page)


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____________________________________________


a treatment or clinical assessment about which there can be little or no
difference of opinion. Our Supreme Court’s decision in Welsh, supra, serves
as an example of this. In Welsh, the appellant, Bobbi Jo Welsh, received
prenatal care from Donald W. Bulger, M.D. At that time, Dr. Bulger “had
obstetrical privileges at Nason Hospital but these privileges did not permit him
to perform surgery at the hospital.” Welsh, 698 A.2d at 583. On January 1,
1990, at around 4:00 a.m., Welsh went into labor. She arrived at Nason
Hospital at 12:00 p.m., but wasn’t examined by Dr. Bulger until 7:55 p.m.
when he “placed an internal monitoring device on the fetus to monitor the
fetal heart rate.” Id. By 8:15 p.m., Welsh’s cervix became fully dilated and
“Dr. Bulger instructed her to begin pushing out the baby.” Id. “By 9:13 p.m.,
the fetal monitoring device indicated that the fetal heart rate had experienced
consecutive nonassuring variable deceleration patterns, suggesting possible
interference of umbilical blood flow to the fetus.” Id. This continued until
monitoring was discontinued around 9:38 p.m. Eventually, “Dr. Bulger
vaginally delivered the child with forceps at approximately 10:35 p.m.” at
which time “the child was dusky in color, was lacking in muscle tone, was
without spontaneous respiration, and had a low heart rate.” Id. The child
then underwent multiple hospitalizations and suffered numerous
complications. The child died 11 months later.

Welsh later brought suit against, inter alia, Nason Hospital, raising claims of
vicarious and corporate liability. Of relevance, Welsh claimed that Nason
Hospital was corporately liable because “it granted non-surgical obstetrical
privileges to Dr. Bulger without requiring a qualified surgeon to be available
in case surgery was necessary and because its staff failed to notify the hospital
that Welsh’s child needed a surgical delivery.” Id. Welsh presented various
experts in support of her claims. Her final expert, Stanley M. Warner, M.D.
stated that, based upon the fetal monitoring read out, a need for a surgical
delivery was apparent. In particular, he opined:


        I have reviewed the materials you sent me regarding the care
        of Bobbi Jo Welsh. I find that her care was below the standard
        of care.

        At about 20:30 hours on January 1, 1990, recurrent late
        decelerations or variable decelerations with late components
        appear consistently on the fetal monitor record. Bobbi Jo Welsh
        did not deliver [the child] until 22:35 hours on January 1, 1990.
        There was no reason to believe at 20:30 hours that there would
(Footnote Continued Next Page)


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____________________________________________


        be rapid delivery of Kyle. Bobbi Jo Welsh was a [16-year-old]
        prima gravida [(first-time pregnancy)] and her labor was
        progressing approximately normally for a prima gravida. By
        that estimate, it would have been at least two more hours
        before one would have expected delivery from the 20:30 hour
        time, which, of course, is what did happen. In fact, that is
        rather on the rapid side. The nurses must have known what
        was going on. An internal scalp led [sic] was placed on 7:55
        a.m. There was oxygen from 9:30 p.m. or 21:30 hours.

        It is apparent from Dr. Bulger's deposition that he was not
        qualified to perform cesarean sections and failed to have
        anyone in that could perform cesarean sections. He also did no
        consultation for cesarean section. If Dr. Bulger had arranged
        for an appropriate cesarean section or the hospital had arranged
        for an appropriate cesarean section with the nurses' input on
        this, there is every reason to believe that [the child] would be
        an absolutely normal child today. There also should have been
        a pediatrician available for the resuscitation and there was not.
Id. at 584.

Ultimately, Nason Hospital moved for summary judgment, “arguing that there
was no issue to be tried concerning its liability because Welsh’s expert reports
failed to support her claims.” Id. The trial court granted summary judgment
and dismissed Nason Hospital from the action. Welsh appealed. Ultimately,
our Supreme Court reversed the trial court’s order granting summary
judgment. In particular, the High Court determined that, based upon Dr.
Warner’s expert testimony, Welsh sufficiently supported her claims of
corporate negligence against Nason Hospital. Id. at 586. Importantly, the
Court held that, because Dr. Warner “opined that the nurses breached the
standard of care because they must have known that there was a problem
with the delivery but failed to act on that knowledge,” his report was “sufficient
to support a prime facie case of corporate negligence against Nason Hospital
for violation of its duty to “oversee all persons who practice medicine within
its walls as to patient care.” Id.

Welsh, therefore, is an example of a set of circumstances where a reduced
margin of judgment or difference in opinion allows us to impute corporate
liability to a hospital despite a diminished duration or reduced incidence of
deviation from the standard of care. Indeed, the Welsh Court readily agreed
with Dr. Warner’s expert opinion that the nurses “must have known that there
(Footnote Continued Next Page)


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J-E02003-23



such a showing and forbid holding a hospital corporately liable for the

individual negligent acts of its medical personnel, a basis for compensation

which already exists under the doctrine of vicarious liability.

        In the case sub judice, when considering the facts and contentions

presented by Appellant in light of the teachings of Edwards, Whittington,

Shannon, and Ruff, I am compelled to conclude that the trial court correctly

entered a nonsuit on Appellant’s claims of negligent corporate oversight.

Appellant’s allegations of corporate negligence in this case are based

exclusively upon a single admission to WBGH and the conduct of its medical

personnel on one day: August 9, 2013. Indeed, Appellant did not present any

evidence that, over the course of days, weeks, or months, WBGH overlooked

or ignored numerous or repeated departures from the standard of care by its

health care providers who treated Joseph Corey. In other words, Appellant

failed to prove that WBGH had corporate knowledge of numerous or recurring

departures from the standard of care sufficient to establish “systemic

negligence.”     I therefore concur with the Majority that Appellant did not

present sufficient evidence to submit her claim of corporate negligence to the

jury.
____________________________________________


was a problem with the delivery” because, in this particular scenario, the signs
of fetal distress, coupled with Dr. Bulger’s lack of license status, compelled
one conclusion: Welsh needed the assistance of a medical provider able to
perform cesarian sections. Id. at 584. Hence, in a similar situation, i.e., in
circumstances where the room for difference of opinion is narrow, the duration
or frequency of medical error before a hospital’s corporate duty is triggered
could be limited.


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J-E02003-23



      Before I conclude, however, I must briefly address the Dissent’s

suggestion that we reverse the trial court’s order granting nonsuit in favor of

WBGH and remand for a new trial.              Initially, the Dissent argues that

Appellant’s expert, Robert Paynter, M.D., provided “detailed testimony . . .

regarding what should have been done at [WBGH],” namely, that WBGH erred

in failing to conduct an arterial blood test and intubating Decedent and that

such testimony “was sufficient to establish . . . that [WBGH] breached the

standard of care” and played a substantial role in Decedent’s death.

Dissenting Opinion at 14; see also id. at 9 and 11. Then, the Dissent asserts

that, because Appellant “proceeded on an absence of supervision theory,” i.e.,

she claimed that Decedent was “placed in a room and deteriorated under the

care of [WBGH]” because he was left “alone for at least [12] minutes before

he coded,” constructive notice “should be imposed upon [WBGH] at the

nonsuit juncture of the case.” Id. at 12. Hence, in light of two alleged lapses

in clinical judgment by Corey’s providers and a 12-minute stay in a treatment

room, the Dissent contends that Appellant “established sufficient evidence of

all three prongs of corporate negligence under the third duty of Thompson

(failure to oversee patient care)” and, as such, the trial court should have

submitted Appellant’s corporate negligence claim against WBGH to the jury.

Id.

      The Dissent, in my view, adopts the position that a corporate negligence

claim must be submitted to the jury if a plaintiff offers even a bare minimum

of proof tending to show that a hospital failed to override an isolated clinical

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assessment or onetime treatment determination made by a member of its

medical staff.    This position is flawed for several reasons.        First, it is

undermined by the cited appellate case law. Indeed, my learned colleagues

rely on Thompson as well as Whittington, both of which involve plaintiffs

that presented to the respective hospitals several times over the course of

approximately one week (Thompson) or longer (Whittington), but were

either ignored by hospital personnel or met with repeated negligent care. No

such evidence was presented in this instance. Second, the Dissent renders as

obsolete the “critical role” a trial judge must play during a jury trial, which is

to “act as a gatekeeper to ensure that each theory presented to the jury . . .

[is] warranted by the evidence at trial.” Timmonds v. AGCO Corporation,

 *1, *34 (Pa. Super. 2021). Lastly, the disposition proposed

by the Dissent perpetuates the confusion surrounding the doctrine of

corporate negligence and nullifies the doctrine’s fault-based underpinnings,

just as Chief Justice Flaherty feared. The crux of Appellant’s case-in-chief was

that WBGH personnel failed to preform one test, an arterial blood test, and

later, at some point, left the Decedent’s bedside for a mere 12 minutes. These

facts are simply insufficient to sustain an action for systemic corporate

negligence. Thus, the trial court correctly entered a nonsuit on Appellant’s

corporate negligence claim against WBGH.

      Judges Bowes and Dubow join this Concurring Opinion.




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