Brodowski v. Ryave

CONCURRING AND DISSENTING OPINION BY

KLEIN, J.:

¶ 1 I hesitate to write further, considering the thorough discussions of both the *1072majority and the dissent. However, after reviewing exactly what happened, I reach different conclusions with respect to the different defendants.

My conclusions would be the following:

¶ 2 1.1 would affirm the grant of nonsuit on behalf of Dr. Ryave. Even were Dr. Ryave found to be negligent, any negligence would not be a substantial contributing factor, to the harm. The record is clear that the next emergency room physician did know of the order to have a neurological consult, and in fact followed through to ask a passing cardiologist for confirmation.

¶ 8 2.1 would affirm the grant of nonsuit on behalf of Dr. Vaganos, the cardiologist, since he only participated in a brief consultation in which he stated that no definitive diagnosis should be made until there was a neurological consult.

¶ 4 3. I would affirm in part and deny in part the grant of summary judgment in favor of Montgomery Hospital. The pleadings only claimed (a) corporate negligence; and (b) vicarious liability for named physicians. All the named physicians were found not responsible, and there was no pleading claiming negligence on the part of others on the hospital staff. However, as noted below, I believe the court erred in excluding evidence against the Montgomery Hospital psychiatrist, Dr. Byron. Therefore, since a new trial is warranted against Dr. Byron, Montgomery Hospital could be found responsible on an ostensible agency theory for Dr. Byron’s actions and therefore should be part of a new trial.

¶ 5 (a) Corporate Liability. There was no showing that there was a systemic problem with hospital supervision, hiring, regulations, etc., which is what is required for corporate liability under Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991). While there may have been errors that night on the part of hospital staff beyond the named physicians to which the Montgomery Hospital was vicariously liable, that was not pled. There was no showing of any systemic problems that would have resulted in any errors on that particular night.

¶ 6 (b) Vicarious liability for the actions of named physicians. Since Dr. Ryave and Dr. Vaganos were properly dismissed by way of nonsuit, and other doctors were found not responsible by the jury, there was no vicarious liability on the part of Montgomery Hospital regarding those doctors.5

¶ 7 (c) As noted below, there is evidence of ostensible agency for the psychiatrist, Dr. Byron, and Montgomery Hospital could be responsible on a vicarious liability theory for his actions.

*1073¶ 8 4. I agree with the dissent that the trial court improperly limited the testimony of Dr. Doyle and Dr. Preston, criticizing Dr. Byron’s actions, and would grant a new trial against Dr. Byron. I believe that the dissent points out where the proposed testimony of Dr. Doyle did not go beyond their expert reports and this well could have made a difference in the verdict in favor of Dr. Byron. Since the only notation in the file was a request for a neurological evaluation, the jury could find that Dr. Byron did not ask enough questions when there was the referral to the psychiatric unit, a theory somewhat different than the hypothetical questions proposed to him. Therefore, I believe there should be a new trial against Dr. Byron, and, therefore, also against Montgomery Hospital on an ostensible agency theory.

. I note that a neurological consult was later done by Dr. Striar at Suburban General Hospital. Neurologist Dr. Striar did not make a diagnosis of stroke, although he anticipated doing a CAT scan later after sufficient time had passed, so the CAT scan might have revealed a stroke. However, when Dr. Striar returned to the hospital, Brodowski had been moved to the Institute of the Pennsylvania Hospital (a psychiatric hospital), where her condition worsened. Then she was transferred to the medical unit of Pennsylvania Hospital, where an MRI revealed the stroke. The defense position, to which the jury probably agreed, was that did have a conversion reaction, which was the primary diagnosis of almost all of the physicians who saw her initially was that she probably did not have a stroke. The defense contended that Brodow-ski did not have symptoms of a stroke until she reached the Institute of the Pennsylvania Hospital, so either the physicians could not diagnosis a stroke or the stroke did not occur until she was at the Institute of the Pennsylvania Hospital. Her symptoms definitely worsened at the Institute of the Pennsylvania Hospital.