Valles v. Albert Einstein Medical Center

*557Justice NIGRO

dissenting.

I respectfully dissent from the majority opinion because I believe that the trial court erroneously granted summary judgment on Appellant Esmelinda Valles’s claim against Appellee Albert Einstein Medical Center (“AEMC”) as well as her claim against Cross-Appellant Dr. Jay Morros (“Dr. Morros”).

With regard to Appellant’s claim that AEMC was vicariously liable for Dr. Steven Allen’s failure to obtain Lope Valles’s (“Valles”) informed consent prior to performing the aortogram, I disagree, in the first instance, with the majority’s conclusion that the evidence failed to establish that Dr. Allen was employed by AEMC. In fact, I believe that the record shows the contrary given Dr. Allen’s testimony that he was a radiologist employed by AEMC when he performed the aortogram on Valles. See Deposition of Dr. Steven Allen, 1/21/98, at 7, 23.

I also disagree with the majority’s finding that regardless of whether or not Dr. Allen was an employee of AEMC, AEMC cannot be vicariously liable for a failure by Dr. Allen to obtain Valles’s informed consent, because a battery resulting from a physician’s failure to obtain a patient’s informed consent for a surgery,1 is not an action that can be included within the scope of a hospital’s relationship with its employee. As noted by the majority, a hospital may be vicariously liable for injuries to its patients caused by the wrongful acts of its employees committed during the course and within the scope of the employment relationship. Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703, 707 (1991); Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497, 501 (1974); Lunn v. Boyd, 403 Pa. 231, 169 A.2d 103, 104 (1961). An employee’s conduct is considered “within the scope of employment” for purposes of vicarious liability if: (1) it is of *558a kind and nature that the employee is employed to perform; (2) it occurs within the authorized time and space limits of the employment; (3) it is actuated at least in part by a purpose to serve the employer; and (4) the use of force is expected by the employer and then force is intentionally used against another. See R.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa.Super.2000) (citations omitted). Where more than one inference can be drawn from the facts, the issue of whether or not a servant is acting for his employer and within the scope of his employment is one for the jury. Iandiorio v. Kriss & Senko Enterprises, Inc., 512 Pa. 392, 517 A.2d 530, 533 (1986); Lunn v. Boyd, 403 Pa. 231, 169 A.2d 103, 104 (1961).

When a hospital hires a physician to perform surgical procedures on its patients, the physician’s performance of those procedures is an act necessarily included in the scope of the physician’s employment relationship with the hospital. The surgery on the patient is clearly the kind of work the hospital hired the physician-employee to perform. The physician-employee performs the surgery during working hours, inside the hospital’s walls, and in order to serve the hospital’s purpose of caring for sick and injured patients. See e.g., Thompson, 591 A.2d at 707. Finally, in hiring the physician to perform surgeries on its patients, the hospital undoubtedly expects • the physician-employee to physically touch its patients. Therefore, a physician-employee’s performance of a surgical procedure is an act within the scope of the physician’s relationship with the hospital and the hospital may be vicariously liable when the physician fails to properly perform a surgery. Moreover, a physician’s duty to obtain a patient’s informed consent before the surgery is an integral part of the performance of the surgery. See Morgan, 704 A.2d at 619 (it is well-established under the law that as a prerequisite to performing any surgical procedure, the physician performing the surgery must obtain the informed consent of the patient undergoing the surgery). In my view, therefore, the physician’s duty to obtain a patient’s informed consent before performing the surgery is included within the scope of the physician’s employment relationship with the hospital. Com*559pare Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270, 1272 (1979) (police officer’s act of shooting neighbor was not within scope of employment as it occurred while he was off-duty, it was motivated by reasons personal to himself, and it was not done for the purpose of his employment). Thus, unlike the majority, I would find that where a physician-employee fails to obtain a patient’s informed consent before performing a surgical procedure, the hospital-employer is vicariously liable for that failure.

In the instant case, the evidence showed that Dr. Allen may not have properly obtained Valles’s informed consent prior to performing the aortogram because the written consent form given by Dr. Muriel Gordon, an AEMC medical resident, to Valles prior to the aortogram failed to explain that there was a risk that kidney failure could result from the procedure. Given this evidence, along with the evidence showing that AEMC employed Dr. Allen to perform radiological work, including the aortogram performed on Valles, I believe that a genuine issue of material fact existed as to whether Dr. Allen failed to properly obtain Valles’s informed consent and if so, whether AEMC was vicariously liable for that failure. Accordingly, I believe that the jury should have been allowed to consider these issues, and therefore, that the trial court erred in granting summary judgment in favor of AEMC. See Iandiorio, 517 A.2d at 533.

As to Appellant’s claim that Dr. Morros failed to properly obtain Valles’s informed consent before the surgery to implant the Permacath because he did not advise Valles of the viable alternative sites for placement of the Permacath, I agree with the majority that based on the rule established by this Court in Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163. A. 523 (1932), the Superior Court improperly concluded that Dr. Morros’s oral testimony established that the right subclavien vein was the only viable site for the Permacath. I further agree with the majority that the Superior Court improperly determined that pursuant to the informed consent doctrine, a physician must inform his patient of the method or manner of performing a surgery and the *560risks associated therewith. Nevertheless, in my view, where a physician believes that there is more than one viable site for performing a surgical procedure, the location for the procedure concerns alternative types of treatment available to the patient. Further, the patient should be advised of those alternative types of treatment, i.e., the viable locations for the surgery, as well as the risks associated with each location.2 See Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331, 333 (1992) (physician must inform patient of material facts, risks, complications and alternatives to surgical treatment that a reasonable person in patient’s situation would consider significant in deciding whether to undergo surgery); Stover v. Association of Thoracic and Cardiovascular Surgeons, 431 Pa.Super. 11, 635 A.2d 1047, 1051-52 (1994) (pursuant to informed consent doctrine, physician was required to inform patient needing heart valve replacement of viable alternative types of heart valves and risks associated with those valves). Accordingly, in the instant case, I would find that the jury should have been permitted to assess the credibility of Dr. Morros’s testimony to determine whether or not he believed that the right subclavien vein was the only viable site for the Permacath. Given that the majority finds otherwise, I must respectfully dissent.

. Morgan v. MacPhail, M.D., 550 Pa. 202, 704 A.2d 617, 620 (1997). As I noted in Morgan, I believe that a physician should be liable for negligence where the physician fails to obtain the patient's informed consent. Id. at 622. Nonetheless, my conclusion in the instant case is the same whether or not a physician is liable for failing to obtain a patient’s informed consent under a negligence theory or under a battery theory.

. Notably, Dr. Alan Wladis, who obtained Valles’s informed consent for the Permacath procedure, testified that he routinely advised patients of the possible areas where the Permacath could be placed. N.T., 2/28/96, at 43.