CORPORATE NEGLIGENCE

Graham v. Barolat, No. Civ. A. 03-2029 (E.D. Pa. Nov. 17, 2004)

A patient saw a doctor for facial pain, after which the doctor implanted a spinal cord stimulator device and electrodes secured in a Dacron pouch in the patient’s body. The patient contended that she continued to experience pain after the surgery. The doctor then removed the stimulator and the electrodes without removing the Dacron pouch. The failure to remove this pouch allegedly caused pain in the patient’s chest. The patient sued the hospital and the hospital filed for summary judgment.

The U.S. District Court for the Eastern District of Pennsylvania partially allowed the plaintiff’s corporate negligence and actual agency claims against the hospital to proceed, but granted summary judgment for the hospital on an ostensible agency claim. Also, the court found that the doctor was an agent of the hospital due to all of the doctor’s surgical work and the treatment that he provided at the hospital. The court found that actual agency occurs when the employer controls or has the right to control the physical conduct of the servant in the performance of his or her work.