Concurring.
¶ 1 I join in the erudite reasoning of my learned and distinguished colleagues with respect to their analysis of the issues raised by Appellant/Executrix in all respects but one. I agree with my colleagues that the claims of Appellant against Keystone for vicarious liability are collaterally estopped by virtue of the jury’s verdict in Appellant’s prior action against her treating physicians for negligence. It is, of course, axiomatic that a party cannot be held vicariously hable for the acts of its agents or employees when its agents or employees were found not to have been negligent. I also agree that Appellant’s *754claim for breach of contract was properly dismissed since it was expressly founded on an allegation that the decedent’s treating physicians provided her with incompetent and substandard care in breach of the terms of the contract between decedent and Keystone. See Appellant’s Complaint, filed 10/19/1990, at ¶ 163. The jury’s prior finding that the decedent’s treating physicians were not negligent is therefore binding on this issue as well.
¶ 2 I cannot agree, however, that Count III of Appellant’s complaint against Keystone, which is based on a theory of corporate negligence, was barred in its entirety by the doctrine of collateral estoppel. This count of Appellant’s complaint provided in relevant part:
136. [Appellee] Keystone Health Plans, Inc. is corporately liable to the plaintiff for the injuries alleged above for its negligence, gross negligence, wanton misconduct, outrageous conduct, and reckless and/or intentional disregard for the well being and safety of the [Appellant] in:
(a) enrolling, marketing and using [the treating physicians] as HMO physicians without having verified the competence of the physicians through an adequate investigation into their education, training, experience, and prior acts of professional malpractice;
(b) failing to have instituted effective procedures for the selection of competent and qualified doctors as HMO physicians, such procedures minimally requiring an investigation into the education, training, experience, and prior acts of professional malpractice of the physicians;
(c) failing to have instituted an effective quality control program designed to periodically review and assess the competence of HMO physicians, so as to have removed [the treating physicians] as HMO physicians;
(d) faffing to verify the truthfulness of information which [the treating physicians] provided to the HMO in their applications for enrollment as HMO physicians; and
(e) enrolling, hiring, marketing, and using [the treating physicians] as HMO physicians despite repeated prior incidents of professional malpractice on the part of the aforesaid physicians.
(f) promulgating and implementing policies and procedures which discourage adequate medical testing, consultation, and evaluation to the detriment of its enrollees.
Appellant’s Complaint, filed 10/19/1990, at ¶ 136(a)-(f) (emphasis supplied).
¶ 3 Our Supreme Court has summarized the theory of corporate negligence as follows:
In Thompson [v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) ] this Court first adopted the theory that a corporation, specifically a hospital, can be held directly liable for negligence. We explained the concept of corporate negligence as follows:
Corporate negligence is a doctrine under which the 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.
Thompson, 527 Pa. at 339, 591 A.2d at 707. Under Thompson, a hospital has the following duties:
(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent phy*755sicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.
Id. at 339-40, 591 A.2d at 707 (citations omitted).
Because 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. Moser v. Heistand, 545 Pa. 554, 558, 681 A.2d 1322, 1325 (1996). Instead, corporate negligence is based on the negligent acts of the institution. Moser. 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. Thus, under this theory, a corporation is held directly hable, as opposed to vicariously hable, for its own neghgent acts.
Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581 (1997).
¶ 4 In Shannon v. McNulty, 718 A.2d 828 (Pa.Super.1998) our Court explicitly extended the theory of corporate negligence to Health Maintenance Organizations which undertake to provide medical treatment rather than simply providing money for payment or reimbursement for medical services. Our Court said:
In adopting the doctrine of corporate liability the Thompson court recognized ‘the corporate hospital’s role in the total health care of its patients.’ Thompson, at 708. Likewise, we recognize the central role played by HMOs in the total health care of its subscribers. A great deal of today’s healthcare is channeled through HMOs with the subscribers being given httle or no say so in the stewardship of their care. Specifically, while these providers do not practice medicine, they do involve themselves daily in decisions affecting their subscriber’s medical care. These decisions may, among others, limit the length of hospital stays, restrict the use of specialists, prohibit or limit post hospital care, restrict access to therapy, or prevent rendering of emergency room care. While all of these efforts are for the laudatory purpose of containing health care costs, when decisions are made to limit a subscriber’s access to treatment, that decision must pass the test of medical reasonableness. To hold otherwise would be to deny the true effect of the provider’s actions, namely, dictating and directing the subscriber’s medical care.
Where the HMO is providing health care services rather than merely providing money to pay for services their conduct should be subject to scrutiny. We see no reason why the duties applicable to hospitals should not be equally applied to an HMO when that HMO is performing the same or similar functions as a hospital. When a benefits provider, be it an insurer or a managed care organization, interjects itself into the rendering of medical decisions affecting a subscriber’s care it must do so in a medically reasonable manner.
Here, [the HMO] provided a phone service for emergency care staffed by triage nurses. Hence, it was under a duty to oversee that the dispensing of advice by those nurses would be performed in a medically reasonable manner. Accordingly, we now make explicit that which was implicit in McClellan [v. Health Maintenance Organization of Pennsylvania, 413 Pa.Super. 128, 604 A.2d 1053 (1992)7 and fínd that HMOs may, under the right circumstances, be held corpo*756rately liable for a breach of any of the Thompson duties which causes harm to its subscribers.
Id. 718 A.2d at 835 (emphasis supplied).
¶ 5 Since subparagraphs (a)-(e) of Count III of Appellant’s complaint allege that Keystone was liable under a theory of corporate negligence for failing to develop, implement, and enforce adequate policies for the hiring and supervision of the particular doctors who treated Appellant’s decedent, I would agree that these portions of Count III are barred by the jury’s finding in the prior proceeding that the decedent’s treating physicians were not negligent. Such a finding by the jury in the prior proceeding in effect established that Keystone did not breach the second “Thompson duty,” which is to select and retain competent physicians. However, our Court recognized in Shannon, supra that an HMO such as Keystone may, under certain circumstances, be held liable for breaching any of the Thompson duties and causing harm to its subscribers.
¶ 6 Subparagraph (f) of Count III of Appellant’s complaint is an allegation that Keystone was corporately liable in its own right based on its formulation and promulgation of policies discouraging testing, consultation and evaluation of its enrollees. This is an allegation that Keystone breached the fourth “Thompson duty” which is “to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Thompson, supra. For Keystone to be found negligent under this theory of corporate negligence required Appellant to show that Keystone breached a duty of care owed directly to Appellant’s decedent to formulate, adopt, and enforce adequate testing and diagnostic policies, and that it breached this duty thereby causing Appellant’s decedent harm. This is, as Appellant suggests, an entirely separate issue not dependent on whether the treating physicians were negligent. C.f. Welsh, supra (“Because 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.”) Consequently, I believe that the Appellant was not precluded from proceeding on this part of her complaint under the doctrine of collateral estoppel, solely because of the jury’s verdict in favor of the treating physicians. Since her case against Keystone was not consolidated with her action against her decedent’s treating physicians, at Keystone’s request, Appellant did not have the opportunity in the prior proceeding to litigate this specific issue. See Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991) (a “party against whom a plea of collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in question in a prior action.”)
¶ 7 Nevertheless, I concur in the majority’s affirmance of the Trial Court’s grant of summary judgment because I feel that it was warranted under the particular evi-dentiary circumstances of this case. As the majority notes in its decision to uphold the Trial Court’s dismissal of Count II of Appellant’s complaint, which alleges the direct negligence of Keystone, Appellant has claimed no specific treatment decision of Keystone which caused the decedent harm. Moreover, in dismissing Count II of the Appellant’s complaint, which was based entirely on a theory of Keystone’s direct negligence in its own right, the Trial Court found as follows:
To find that the [Appellant’s] claims should proceed to trial, the [Appellant] would have to offer some proof to establish [Appellee’s] liability that is independent of the actions of the doctors who treated [Appellant.] An attempt to ar*757gue that her treating physicians were negligent and that their actions can be imputed to Keystone must necessarily fail because a jury has already determined the contrary to be true. [Appellant] would instead have to prove some causal relationship between the policies of the HMO and the harm suffered by [the decedent]. There is no evidence in this case of such a causal connection.
Trial Court Opinion, filed 4/30/2001, at 3 (emphasis supplied).
¶ 8 Thus, it is for these reasons that I would hold that summary judgment was proper with respect to subparagraph (f) of Count III of Appellant’s complaint since Appellant has failed to produce evidence that Keystone had interjected itself into the specific treatment decisions made with respect to Appellant’s decedent, or that its policies with respect to discouraging testing, consultation, or evaluation caused Appellant’s decedent harm. Hence summary judgment was proper on this basis. See Campanaro v. Pennsylvania Electric Company 738 A.2d 472, 475-476 (Pa.Super.1999), appeal denied, 561 Pa. 684, 751 A.2d 183 (2000) (citing Pa.R.C.P. 1035.2) (“Summary judgment may be properly entered only where (1) there is no genuine issue of material fact as to a necessary element of the cause of action which could be established by additional discovery or an expert report, or (2) after completion of discovery and production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action.”)
¶ 9 Consequently, I join the holding of the majority in all other respects but concur in the result with respect to the dismissal of the cause of action for corporate negligence against Keystone which was predicated on its alleged implementation of policies and procedures that discourage adequate testing, consultation and evaluation of its enrollees.