Medical Malpractice: Is It Reasonable For A Patient In The Emergency Room To Think The Doctor Treating Him Works For The Hospital Where He Is Being Treated?

You would think, but that is the question the Pennsylvania Supreme Court will determine after hearing oral arguments yesterday in Green v. Pennsylvania Hospital. The case involves the death of the plaintiff, Joseph Fusco, which may have been due to the negligent treatment he received in the emergency room from a medical resident.

According to a lower court opinion, Mr. Fusco was taken to the emergency department of Pennsylvania Hospital with complaints of shortness of breath and wheezing, so he was sent to the intensive care unit and intubated. A week later, he was given a tracheostomy to try to slowly wean him off of his ventilator. However, a nurse soon realized the tracheostomy was squirting blood, so she called an emergency team, including an Ear, Nose and Throat doctor. According to the Plaintiff’s Petition to the Court, The ENT negligently attempted to reinsert a larger endo-tracheal tube into Mr. Fusco’s neck, rather than properly reinserting an endo-tracheal tube through his mouth, ultimately suffocating Mr. Fusco.

According to the Medical Care Availability and Reduction of Error Act, if the evidence shows that it is reasonable for a patient to think the doctor treating him is an agent for the hospital, then the hospital can be held vicariously liable.

The better question is what patient, in an emergency setting such as the plaintiff’s, would assume anything differently? According to the Plaintiff’s Petition to the Court, the ENT first become involved in the treatment of Mr. Fusco as a response to this emergency, so he had never been Mr. Fusco’s doctor prior to this incident, and he responded to Mr. Fusco’s emergency after being paged by the hospital, not at the request of Mr. Fusco or any of Mr. Fusco’s family. It is difficult to imagine any patient would assume a doctor that arrives at your bedside in response to the hospital’s request is not working in some capacity for the hospital.

Despite all of this, the hospital denied any connection to the END who performed the end-tracheal tube, leading to this important, and hopefully common-sense, decision for the Supreme Court.

Sources:

Plaintiff’s Petition for Allowance

Superior Court Decision