Graham v. Barolat

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DORIS GRAHAM

GIANCARLO BAROLAT, M.D. and
THOMAS JEFFERSON UNIVERSITY
HOSPITAL

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CIVIL ACTION

No. 03-2029

MEMORANDUM AND ORDER

HUTTON, S.J.

November 17, 2004

Presently before the Court are Defendant Thomas Jefferson

University Hospital’s (“TJUH”) Motion for Summary Judgment

(Docket No. 20), Plaintiff’s Response thereto (Docket No. 40),

and Defendant Thomas Jefferson University Hospital ’s Reply to

Plaintiff ’s Response (Docket No. 45).

I. BACKGROUND

On March 28, 2003, Plaintiff initiated this suit against

Defendants Giancarlo Barolat, M.D., and TJUH, alleging five

counts arising out of a series of surgeries performed on

Plaintiff by Dr. Barolat. In December of 1996, Plaintiff first

saw Dr. Barolat for treatment of facial pain. As part of this

treatment, Plaintiff was admitted to TJUH for spinal cord

stimulator implant surgery on June 9, 1997. During this

procedure, Dr. Barolat implanted a spinal stimulator device and

placed electrodes in Plaintiff ’s body. On June 12, Dr. Barolat

performed an additional procedure on Plaintiff where he attached

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a pulse generator to the electrodes. The pulse generator was

secured in a Dacron pouch. Plaintiff maintains that she

continued to experience pain after the surgery. On December 3,

1998, Dr. Barolat removed the pulse generator and electrodes. It

is uncontested that Dr. Barolat did not remove the Dacron pouch

he had inserted on June 12, 1997. Plaintiff maintains that she

continued to feel pain in her face and began to experience

additional pain in her chest after the procedure in June of 1997.

On March 30, 2001, Plaintiff was admitted to a South Carolina

hospital for examination of a mass in her chest. Physicians at

that hospital removed the mass. Plaintiff alleges that the mass

was formed as a result of Dr. Barolat leaving the Dacron pouch in

Plaintiff’s body. Plaintiff is suing Dr. Barolat for medical

malpractice. Plaintiff is suing Defendant TJUH under the

theories of corporate liability, vicarious liability, and

ostensible agency arising out of the injuries that Plaintiff

sustained.

II. LEGAL STANDARD

When considering a motion for summary judgment, a court must

consider “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 a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). The court must

determine whether the evidence is such that a reasonable jury
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could return a verdict for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this

determination, the court must view all of the facts in the light

most favorable to the non-moving party and all reasonable

inferences must be drawn in favor of the non-moving party. Id.

Once the moving party has met the initial burden of demonstrating

the absence of a genuine issue of material fact, the non-moving

party must establish the existence of each element of its case.

J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531

(3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986)).

Nonetheless, a party opposing summary judgment must

do more than just rest upon mere allegations, general denials, or

vague statements. See Trap Rock Indus., Inc. v. Local 825, 982

F.2d 884, 890 (3d Cir. 1992). If the non-moving party ’s evidence

‘is merely colorable, . . . or is not significantly probative,

. . . summary judgment may be granted. ’

” Id. at 890-91 (quoting

Gray v. York Newspapers Inc., 957 F.2d 1070, 1078 (3d Cir.

1992)).

Corporate Negligence Claim

III. DISCUSSION

The Supreme Court of Pennsylvania has held that a hospital

can be directly liable for negligence that occurs within its

walls. See Thompson v. Nason Hosp., 591 A.2d 703, 708 (Pa.

1991). The court explained that:

[c]orporate negligence is a doctrine under which the
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“
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.

Id. at 707. Under Thompson, a hospital owes a patient the
following four duties (“ Thompson duties”):

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

Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997) (quoting Thompson,

591 A.2d at 707).

The doctrine of corporate negligence was explained further

by the Pennsylvania Supreme Court in Moser v. Heistand, 681 A.2d

1322 (Pa. 1996). The court reiterated that under the theory of

corporate negligence, the hospital is directly liable, as opposed

to vicariously liable, for its own negligent acts. Id. at 1325.

The court stated that “[b]ecause the duty to uphold the proper

standard of care runs directly from the hospital to the patient,

an injured party need not rely on the negligence of a third-

party, such as a doctor or nurse, to establish a cause of action

in corporate negligence. ” Id. Corporate negligence is based

instead on the negligent acts of the corporation. 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. ” Id. at 1326.

Finally, in Welsh, the Pennsylvania Supreme Court addressed
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the type of evidence necessary to prove a claim of corporate

negligence. The court held that “unless a hospital ’s negligence

is obvious, a plaintiff must produce expert testimony to

establish that the hospital deviated from an accepted standard of

care and that the deviation was a substantial factor in causing

the harm to the plaintiff.” Welsh, 698 A.2d at 585.

Therefore, in order to present a prima facie case of

corporate negligence, a plaintiff must introduce evidence that:

1) the hospital breached one of the four recognized duties of

care, 2) the hospital had actual or constructive notice of the

defects or procedures that created the harm, and 3) the conduct

was a substantial factor in causing the harm. See Thompson, 591

A.2d at 707-08; see also Engel v. Minissale, 1995 WL 478506, *2

(E.D. Pa. 1995). Furthermore, in presenting this evidence,

unless the hospital’s negligence is obvious, an expert witness is

required to establish prongs one and three. See Welsh, 698 A.2d

at 585-86.

Count four of Plaintiff ’s complaint alleges that TJUH

violated the second, third, and fourth Thompson duties.

Regarding the second duty, to select and retain only competent

physicians, Plaintiff states that TJUH breached this duty by

“hiring and maintaining as a member of its staff Dr. Barolat, who

did not possess and employ the necessary skills and practices

prevailing in his field of specialization. ” Pl. ’s Comp. ¶ 49(a).

Initially, the Court notes that Plaintiff has not given the
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Court an expert report which specifically addresses the

negligence of TJUH. The only expert report before the Court is

that of Plaintiff ’s expert Dr. Rawlings, which Defendant TJUH

filed as an exhibit to its motion for summary judgment. See

Def.’s Mot. for Summ. J. Ex. D. Dr. Rawlings states in his

report that Dr. Barolat’s treatment of Plaintiff breached the

accepted standard of care. See id. However, Dr. Rawlings does

not specifically mention how TJUH breached its duty to hire

competent physicians. See id. Because there is no expert report

before the Court which indicates that TJUH breached its duty,

Plaintiff has failed to establish a prima facie case of corporate

negligence under the second duty.

Even if the breach was obvious so that an expert report was

not necessary, Plaintiff has not provided any evidence that TJUH

knew or should have known that Dr. Barolat was incompetent. A

hospital is not directly liable simply because a physician makes

a mistake which allegedly constitutes malpractice. See Edwards

v. Brandywine Hosp., 652 A.2d 1382, 1386-87 (Pa. Super. Ct.

1995). Plaintiff states in her response motion that Dr. Barolat

“has also been sued for malpractice a number of times prior to

the instant case.” Pl.’s Resp. at 4. However, at the summary

judgment stage, Plaintiff must do more than rely solely on bare

allegations in a response. For example, in Corrigan v. Methodist

Hosp., 869 F. Supp. 1208 (E.D. Pa. 1994), the plaintiff withstood

a motion for summary judgment because an expert stated that the
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hospital had breached its duty by credentialing a doctor with

previous medical malpractice suits brought against him. Id. at

1211. Although Plaintiff argues Corrigan is authoritative, the

plaintiff there presented the court with at least two expert

reports detailing the hospital’s negligence. See Corrigan, 869

F. Supp. at 1211. There is nothing in the record before the

Court to show that Dr. Barolat actually had previous malpractice

suits against him. Because the record before the Court lacks

proof of any previous suits against Dr. Barolat, Plaintiff has

not established the prima facie case for a violation of the

second Thompson duty.

Plaintiff next alleges that TJUH violated the third Thompson

duty to “oversee all persons who practice medicine within its

walls.” Thompson, 591 A.2d at 707. Specifically, Plaintiff

states that TJUH failed to “adequately supervise and monitor Dr.

Barolat” and failed to “supervise its agents, servants, workmen,

employees and/or ostensible agents. ” Pl.’s Comp. ¶¶ 49(b) and

49(e). Apart from these allegations in the complaint, Plaintiff

has not provided the Court with any evidence that TJUH breached

its duty to oversee those who practice medicine within its walls.

The only expert report discusses Dr. Barolat’s breach of the

standard of care owed to Plaintiff. This is not enough to show

that TJUH, as a corporate entity, was negligent in supervising

its agents. Since the breach is not obvious, and Plaintiff has

not provided an expert opinion that TJUH breached the third
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Thompson duty, Plaintiff has failed to make out a prima facie

case on this claim.

Finally, Plaintiff argues that TJUH breached the fourth

Thompson duty to “formulate, adopt and enforce adequate rules and

policies to ensure quality care for the patients.” Thompson, 591

A.2d at 707. Specifically, Plaintiff states that TJUH failed to

“properly instruct its agents, servants, workmen, employees

and/or ostensible agents in the procedures for properly

evaluating and treating the Plaintiff” and failed to “create and

enforce required and necessary rules . . . for ensuring that its

patients receive the most appropriate medical treatment.” Pl.’s

Comp. ¶ 49(g) and 49(I). Dr. Rawlings stated in his expert

report, to a reasonable degree of medical certainty, that Dr.

Barolat “breached the standard of care with regard to Ms. Graham

by failing to remove the Dacron pouch. ” Def.’s Mot. for Summ. J.

Ex. D. In discussing treatments for complex pain syndrome, he

stated that:

even if the treatment is unconventional, certain basic
surgical premises must still be followed. One of these
premises is the fact that no foreign body should be left in
situ unless the patient benefits from its presence or unless
its removal would damage the patient. Dr. Barolat ignored
this basis surgical tenet.

Id. In discussing this breach, Dr. Rawlings ’ report says that

the “mesh should have been easily visualized and easily removed.”

Id.

When reviewing expert opinions, the Supreme Court of

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Pennsylvania has stated that it is “not necessary for the

expert’s report to contain ‘magic words ’ or to set forth their

opinions in any specific manner.” Welsh, 698 A.2d at 585-86.

The court in Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. Ct.

2001) was faced with an expert report that criticized the

attending physicians for failing to get “medical clearance”

before administering general anesthesia. See Rauch, 783 A.2d at

827. The expert stated in the report that:

the standard of care from my experience as both an E.R.
doctor and internist required medical clearance. It was
substandard to perform general anesthesia on this patient
without medical clearance. . . The risk to this patient
would have been significantly reduced by medical clearance
and optimization of blood pressure and cardiac function as
well as by regional anesthesia.

Id. at 827. In interpreting the report, the court found that

this criticism of the physician related to the duty of a hospital

to “formulate, adopt and enforce adequate rules and policies to

ensure quality care for the patients.” Id. Because the doctor

failed to get medical clearance, the court found it possible that

the hospital failed to have a set policy in place requiring this

clearance. Id. at 828. Similarly, here, Dr. Barolat ’s failure

to remove the pouch was a deviation from the recognized standard

of care. In the present case, as in Rauch, it is unclear whether

there were proper standards in place regarding removal of foreign

objects, or whether the physician defendant failed to follow

specific hospital policies. See Rauch, 783 A.2d at 828. In

either instance, as demonstrated through Dr. Rawlings’ report,
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TJUH failed to enforce adequate rules and policies so as to

ensure quality care for its patients. Based on the evidence

before the Court, a genuine issue exists as to whether this was

solely a breach by Dr. Barolat or also a failure of TJUH to have

an adequate policy in place.

Additionally, it is well settled in Pennsylvania that a

“hospital staff member or employee has a duty to recognize and

report abnormalities in the treatment and condition of its

patients. ” Welsh , 698 A.2d at 586 n.13. If the “attending

physician fails to act in accordance with standard medical

practice, it is incumbent upon the hospital staff to so advise

hospital authorities in order that appropriate action might be

taken.” Rauch, 783 A.2d at 828 (quoting Welsh, 698 A.2d at 586).

A court may properly charge a hospital with constructive notice

when it “should have known” of the patient’s condition.

Rauch,

783 A.2d at 828. Furthermore, the Rauch court noted that

“constructive notice must be imposed when the failure to receive

actual notice is caused by the absence of supervision. ” Id. at

828. The court analogized the failure to supervise and the

failure to enforce adequate rules and policies in finding the

hospital had constructive notice. See id. Here, there is exists

an issue as to whether TJUH had actual notice of Dr. Barolat’s

decision to leave the pouch in Plaintiff’s body, but TJUH must be

deemed to have constructive notice where its failure to have an

adequate policy in place or enforce an otherwise acceptable
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policy caused the injury.

Finally, Plaintiff has established that the breach was a

substantial factor in causing her injury. It is uncontested that

Dr. Barolat left the pouch in Plaintiff ’s body. Additionally,

Dr. Rawlings stated that leaving the pouch in Plaintiff ’s body

was a direct and proximate cause of Plaintiff’s injuries. See

Def.’s Mot. for Summ. J. Ex. D. Although the report does not

mention TJUH directly, this is a case where the injury is so

“naturally and probably the result of the accident that the

connection between them does not depend solely on the testimony

of professional or expert witnesses.” Matthews v. Clarion Hosp.,

742 A.2d 1111, 1116 (Pa. Super. Ct. 1999) (finding no medical

expert testimony necessary to establish causal link between

falling off table and shoulder injury).

Since Plaintiff has established that TJUH breached a duty

owed to her, that this breach was a substantial factor in causing

her injury, and that TJUH had notice, Plaintiff has survived

TJUH’s motion for summary judgment on the fourth Thompson duty.

Vicarious Liability Claims

Actual Agency Claim

General agency principles apply to hospitals and physicians

in Pennsylvania. See Tonsic v. Wagner, 329 A.2d 497, 501 (Pa.

1974). To establish actual agency in Pennsylvania, the employer

must have controlled or had the right to control the physical

conduct of the servant in the performance of his work. See
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Simmons v. St. Clair Memorial Hosp., 481 A.2d 870, 874 (Pa.

Super. Ct. 1984). Further, a physician may be an agent of a

hospital if his duties “involve general administration of that

hospital and giving treatment therein. ” Id. A person is a

servant if the master “not only controls the result of the work,

but has the right to direct the way it is performed.” Woolfolk

v. Duncan, 872 F. Supp. 1381, 1392 (E.D. Pa. 1995). In contrast,

an independent contractor “retains exclusive control over the

manner in which the work is performed. ” Id. Except where the

facts are undisputed, the jury determines whether an agent is a

servant or an independent contractor. Id.