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Home My WebLink About97-1759 civilJACOB SCHRATZ, A MINOR, BY SUSAN L. SCHRATZ, HIS PARENT AND NATURAL GUARDIAN, AND SUSAN SCHRATZ, INDIVIDUALLY AND IN HER OWN RIGHT, PLAINTIFFS JOHN LOWTHIAN, M.D., CARLISLE WOMEN'S CARE, P.C. AND CARLISLE HOSPITAL, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1759 CIVIL TERM IN RE: MOTION OF DEFENDANT CARLISLE HOSPITAL FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND OLER, J. OPINION AND ORDER OF COURT BAYLEY, J., April 8, 1999:-- This is a medical negligence action arising from the birth of Jacob Schratz at the Carlisle Hospital on April 12, 1995. The $ollowing facts are undisputed. Plaintiff, Susan L. Schratz chose defendant, Carlisle Women's Care, P.C., to care for her when she became pregnant. Carlisle Women's Care, P.C. is a private medical practice with an office in Carlisle. Defendant, John Lowthian, M.D., is an obstetrician and a member of Carlisle Women's Care, P.C. That medical practice, primarily through Dr. Lowthian, provided plaintiff with prenatal care during her pregnancy. Dr. Lowthian has privileges at defendant Carlisle Hospital. He is not an employee of the hospital. Susan Schratz's due date was April 9, 1995. On April 11, 1995, she went to the Carlisle Hospital emergency department believing that she was having . contractions. She was placed on a monitor that indicated that she was not in labor. 97-1759 CIVIL TERM She was sent home and scheduled for a non-stress test the next day. On April 12th, Schratz had the non-stress test preformed by Dr. Lowthian at the Carlisle Hospital. Following the test, Dr. Lowthian immediately admitted Schratz to the hospital for the induction of labor. Under Dr. Lowthian's direction, labor was induced. During the delivery of the baby by Dr. Lowthian, a condition of shoulder dystocia occurred. The baby, Jacob Schratz, was later diagnosed with Erb's palsy and related neurological problems. Plaintiff alleges in her complaint that these abnormalities resulted from.the medical negligence of Dr. Lowthian while he attended to her and the delivery of Jacob at the Carlisle Hospital on April 12, 1995, and that the Carlisle Hospital is responsible for Dr. Lowthian's negligence. Plaintiff's complaint contains allegations of actual, non-vicarious negligence against the Carlisle Hospital. However, plaintiff concedes in light of subsequent discovery that the evidence does not form the basis of liability against the Hospital. The complaint further alleges that "At all relevant times herein, Defendant Lowthian was an agent, apparent agent, servant and/or employee of Defendant Carlisle Hospital." (Emphasis added.)~ Carlisle Hospital filed a motion for summary judgment. Plaintiff maintains that there is sufficient evidence for the case to go to a jury against Carlisle Hospital on a theory of ostensible agency. The issue was briefed and argued on April 7, 1999. ~n 1. There are no specific facts alleged in the complaint to support the allegation that the Carlisle Hospital was the "apparent agent" of Dr. Lowthian. -2- 97-1759 CIVIL TERM Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment: [w]e must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party 'must adduce sufficient evidence on an issue essential tohis case andon which he bears the burdenof proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.' Ertel v. Patriot-News Co., 544 Pa. 93, 101 to 102, 674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). (Emphasis added.) ~ In Boyd v. Albert Einstein Medical Center, 377 Pa. Super. 609 (1988), the Superior Court of Pennsylvania stated: [w]e 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 (1,980). 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, -3- 97-1759 CIVIL TERM 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). There is no evidence in the record whereby a jury could conclude that the Carlisle Hospital acted or omitted to act in some way which would have led Susan Schratz to reasonably believe that she was b. eing treated by the Carlisle Hospital or that Dr. Lowthian was a hospital employee. Plaintiff weakly argues in her brief that the "[C]arlisle Hospital fails to recognize that a patient often does not distinguish between the doctor's services, the clinic where he works and the hospital where he practices. This is the very reason for the ostensible agency theory .... " Notwithstanding, plaintiff chose the Carlisle Women's Care, P.C., as her physicians. She looked to that private medical group for all prenatal care and the delivery of her child. Dr. Lowthian admitted her to the Carlisle Hospital, had her labor induced, and delivered Jacob. The Carlisle Hospital did not hold out to plaintiff that Dr. Lowthian or any member of Carlisle Women's Care, P.C. was its employee, or that the Carlisle Women's Care, P.C., was its clinic. Plaintiff made no such representations in her 97-1759 CIVIL TERM deposition, no affidavits with such representations have been filed, and there is no such evidence in any other deposition or the answers to any interrogatories filed of record. Accordingly, we will grant the motion of the Carlisle Hospital for summary judgment. See Cizewski v. Mazaheri, 10 D. & C.4th 165 (Bucks 1991); Stipp v. Kim, 874 F.Supp. 663 (E.D.Pa. 1995). ORDER OF COURT AND NOW, this "~ day of April, 1999, the motion of defendant, Carlisle Hospital, for summary judgment, IS GRANTED. Stephen R. Pedersen, Esquire 214 Senate Avenue Suite 602 Camp Hill, PA 17011 For Plaintiff Kendra D. McGuire, Esquire For Carlisle Hospital Sarah W. Arosell, Esquire For John Lowthian, M.D. and Carlisle Women's Care, P.C. By t~he Court,...~;~''~ Edgar B. Bayle J. :saa -5-