Dissenting:
¶ 1 I respectfully dissent from the Majority’s ruling that summary judgment was appropriate in this matter. Upon review I believe both the vicarious liability claim against Albert Einstein Medical Center (AEMC) and the informed consent claim against Dr. Morros with regard to the placement of Mr. Valles’ catheter should go forward to a jury.
¶ 2 The Majority recognizes, that as a general rule, the physician who performs a procedure has the duty to obtain the patient’s informed consent. Majority Opinion at 1243; Boutte v. Seitchik, 719 A.2d 319 (Pa.Super.1998). This rule exists because a physician who fails to obtain a patient’s informed consent is responsible for the intentional tort of battery.12 Stover v. Surgeons, 431 Pa.Super. 11, 635 A.2d 1047 (1993). The physician’s duty in these circumstances is non-delegable. The duty rests with the physician, and the hospital in which the procedure is performed is not vicariously liable if the physician breaches that duty, provided the physician is not an employee of the hospital. Also, where the hospital, by its employee, undertakes the responsibility to obtain a patient’s informed consent, the hospital is vicariously liable if its employee is negligent in failing to fully inform the patient.
¶ 3 Appellant contends AEMC is vicariously liable for the failure of its employee to obtain Mr. Valles’ informed consent pri- or to performing the aortagram. In this case, Dr. Gordon, a resident of the hospital’s radiology department, sought to obtain Mr. Valles’ consent. The aortagram was then performed by Dr. Allen, also an employee of AEMC. Dr. Allen, the person responsible for performing the procedure, remained the party responsible for a technical battery in the absence of obtaining the patient’s informed consent. In my view the hospital can be vicariously liable for the actions of Dr. Allen, its employee, who was alleged to have performed a procedure without the necessary consent. A separate claim for negligence for failing to obtain informed consent can be made against hospital employee, Dr. Gordon. Dr. Gordon, who did not perform the procedure, cannot be responsible for a technical battery and can only be responsible under a theory of negligence. The hospital, as Dr. Gordon’s employer, can then be held vicariously liable for her negligence.
¶4 Our Supreme Court in Tonsic v. Wagner, 458 Pa. 246, 253, 329 A.2d 497, 501 (1974), ruled that agency law principles applicable to others should also apply to hospitals. It recognized that hospitals owe a duty to the patient and if a servant breaches that duty, the master may be liable. The court concluded a hospital could be liable for the negligence of its personnel during an operation. Likewise, the hospital in this case can be liable for the negligent and the intentional torts of its employees.
¶ 5 The Majority recognizes that an employer’s vicarious liability may extend to the intentional or criminal acts of the employee, but finds nothing in the record indicating the hospital exercised control over the manner in which Dr. Allen was to perform his radiology work. However, the hospital did have control over Dr. Allen. He was its employee and was performing his duties at the time of the procedure. He was acting on the premises of his employer and engaged in his work as a physician. While the hospital may not oversee every aspect of his surgical duties and y.et be vicariously liable for his negligence, likewise it can be vicariously liable for the battery he committed due to his failure to obtain informed consent. Accordingly, I would allow this claim to go forward to a jury-
*1249¶ 6 The second issue concerns the actions of Dr. Morros and a claimed failure to obtain informed consent regarding the insertion of a catheter. With regard to this issue, which questions a physician’s duty to advise a patient of alternative methods of performing an invasive procedure, I agree with the Majority that the doctrine of informed consent encompasses the entire surgical treatment including the method and manner of surgery. Where more than one medically recognized viable alternate method of a procedure is an option for a patient, the patient should be advised of those options and their attending risks.
¶ 7 However, I dissent from the Majority’s conclusion that there is no disputed issue of fact in this case regarding the alternate viable sites for placement of the catheter. The Majority cites extensively from the testimony offered by Dr. Morros given at his deposition. However, Dr. Morros’ oral testimony can not be the basis for summary judgment in his favor, even if that testimony is uncontradicted and unimpeached, because the credibility of the witnesses is always for the jury to assess. Savidge v. Metropolitan Life Insurance Company, 380 Pa. 205, 110 A.2d 730 (1955); Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).
¶ 8 The Majority claims Appellant did not offer evidence to establish that other viable alternative sites existed in this case. In fact, the testimony of Appellant’s expert Dr. Leitman did provide such evidence. Dr. Leitman was asked whether, if in his best medical judgment he determined there were no medically viable alternative sites for placement of the catheter, would he still give the patient a choice of options. Dr. Leitman responded that he would not. Leitman Deposition, at 159. He was then asked the following question, and responded:
Q. Doctor, in this case with Mr. Valles, having gone through all this testimony today, was the right femoral vein a viable alternative site?
A. Yes.
Id.
¶ 9 In my view this testimony alone creates a question for the jury to consider whether, as Appellant’s expert suggests, a viable alternative site for placement of the catheter existed. Accordingly, I dissent from Majority’s decision to affirm an award of summary judgment in this matter.
. While this remains the law of this Commonwealth, it has consistently been questioned whether the battery theory should be abandoned in favor of a negligence standard. See Morgan v. McPhail, 449 Pa.Super. 71, 672 A.2d 1359 (1996); Malloy v. Shanahan, 280 Pa.Super. 440, 421 A.2d 803, 805 (1980) (dissenting opinion by Hoffman, J.) (citing cases); and Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 255 n. 3, 661 A.2d 397, 402 n. 3 (1995).