BASHORE, et vir vs. THE GOOD SAMARITAN HOSPITAL, et al No. 2009-00078

Civil Action – Medical Malpractice – Discovery – Corporate Negligence – MCARE Act – Motion to Compel Discovery Responses.

1. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
2. A hospital can be held directly liable for negligence under a theory called “corporate negligence”.
3. 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.
4. A hospital has a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; a duty to select and retain only competent physicians; a duty to oversee all persons who practice medicine within its walls as to patient care; and a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.
5. 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.  Thus, under this theory, a corporation is held directly liable, as opposed to vicariously liable, for its own negligent acts.
6. The Court found that the information requested by Plaintiffs had the potential to lead to admissible evidence for trial of this matter with regard to the issue of Defendants’ corporate negligence.
7. The Court rejected the argument that the information sought by Plaintiffs is not discoverable under the provisions of the MCARE Act since it was not generated from any patient safety committee proceeding or the governing board of the medical facility.

Motion to Compel Discovery Responses.  C.P. of Lebanon County, Civil Action-Law, No. 2009-00078.

Marsha F. Santangelo, M.D., Esquire, for Plaintiffs

Stephanie Carfly, Esquire, for Defendants

 

 

 

IN THE COURT OF COMMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

 

SANDRA K. BASHORE and DALE A.      :

BASHORE, w/h,                                         :

Plaintiffs                                             :

:

vs.                                                      :                  NO. 2009-00078

:

THE GOOD SAMARITAN HOSPITAL   :

OF LEBANON, PENNSYLVANIA a/k/a   :

THE GOOD SAMARITAN HOSPITAL;  :

GOOD SAMARITAN HEALTH               :

SYSTEM; THE GOOD SAMARITAN      :

HEALTH SERVICES FOUNDATION     :

OF LEBANON, PENNSYLVANIA, in its  :

own right and d/b/a GOOD SAMARITAN          :

HEALTH SYSTEM and d/b/a THE             :

GOOD SAMARITAN HOSPITAL OF     :

LEBANON, PENNSYLVANIA and d/b/a  :

THE GOOD SAMARITAN HOSPITAL,  :

Defendants                                         :

 

 

 

 

APPEARANCES:

 

MARSHA F. SANTANGELO, M.D., ESQUIRE      FOR PLAINTIFFS

THE BEASLEY FIRM, LLC

 

STEPHANIE CARFLY, ESQUIRE                           FOR DEFENDANTS

MCNEES, WALLACE & NURICK, LLC

 

 

OPINION, TYLWALK, P.J.,  AUGUST 29, 2013.

 

This is a medical malpractice action arising from an incident which occurred when Plaintiff Sandra Bashore (“Sandra”) was a patient in Defendant Good Samaritan Hospital (“Good Samaritan”) in January 2007.  The Amended Complaint avers that Sandra was admitted to Good Samaritan on January 22, 2007 for elective knee surgery and that she remained in the hospital overnight with discharge planned for the following day.  Plaintiffs allege that on January 23, 2007 at 7:30 a.m., Sandra was found awake, but unresponsive, in her bed by members of the nursing staff.   However, the staff did not summon a physician to examine Sandra to assess her condition for one and one-half (1 ½) hours.  When Sandra was finally evaluated, it was determined that she had suffered a stroke and would have to be transferred to Hersey Medical Center for administration of intravenous thrombolytic or “clot buster” therapy.  However, it is averred that by then, too much time had passed for the therapy to be administered to Sandra  and that she suffered severe neurological impairment as a result.

The Amended Complaint includes the following allegations against Good Samaritan:

34.  … Good Samaritan Hospital is liable to plaintiffs pursuant to the doctrine of corporate negligence, … on the basis of the following acts of negligence and carelessness:

 

(d)  failure to formulate, adopt, and enforce adequate rules and policies to ensure the availability of physicians and nurses with appropriate knowledge, experience, and training in the recognition and management of stroke;

 

(e.)  failure to formulate, adopt, and enforce adequate rules and policies to ensure appropriate and expedient diagnosis and management of stroke patients;

 

(f.)  failure to formulate, adopt, and enforce adequate rules and policies to ensure timely administration of thrombolytic, or clot buster, therapy to stroke patients;

 

(g.)  failure to formulate, adopt, and enforce adequate rules and policies to ensure prompt transfer to tertiary care facilities of stroke patients who could not be managed at Good Samaritan Hospital;

 

(h.)  failure to formulate, adopt, and enforce adequate rules and policies to ensure the timely evaluation of stroke patients by a neurologist.

 

35.  At all times relevant hereto, defendant Good Samaritan Hospital had actual or constructive knowledge of the defects or procedures, as referenced in the preceding paragraph, which created the injuries and losses for which plaintiffs claim damages herein.

 

During discovery proceedings, Plaintiffs served on Good Samaritan Requests for Production of Documents which contained requests for verified copies of various provisions from Good Samaritan’s procedure and rules, including an attachment to a provision of Good Samaritan’s Nursing Administration Policy Index, “Phase 1 Post Surgery Activity Protocol, P-3 Attachment B (P-3 Attachment B).”[1]   After Good Samaritan provided responses which did not include this and other items included in the Requests, Plaintiffs filed a Motion to Compel.  (All other items were apparently provided to Plaintiffs subsequent to Good Samaritan’s initial response.)  Good Samaritan posits that it should not be required to provide this item, arguing that it is irrelevant to this litigation because it involves a different medical situation than a stroke and/or is protected from discovery by the Medical Care and Availability and Reduction of Error Act (“MCARE”), 40 P.S. §1303.501 et seq

With regard to the scope of permissible discovery, Pa.R.C.P. No. 4003.1 provides:

Rule 4003.1. Scope of Discovery Generally. Opinions and Contentions

 

(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

 

(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

 

(c) Except as otherwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.
Pa.R.C.P. No. 4003.1.  Specifically with regard to requests for production of documents, Rule 4009.12 provides:

Rule 4009.12. Answer to Request Upon a Party for Production of Documents and Things

 

(a) The party upon whom the request is served shall within thirty days after the service of the request

 

(1) serve an answer including objections to each numbered paragraph in the request, and

 

(2) produce or make available to the party submitting the request those documents and things described in the request to which there is no objection.

 

(i) Where the documents may be identified only after review of a larger group of documents, and the burden of identifying the documents would be substantially the same for the party serving the request as for the party served, the party served may afford the party serving the request reasonable opportunity to identify the documents, to examine or inspect them and to obtain copies.

 

(b) The answer shall be in the form of a paragraph-by-paragraph response which shall

 

(1) identify all documents or things produced or made available;

 

(2) identify all documents or things not produced or made available because of the objection that they are not within the scope of permissible discovery under Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c). Documents or things not produced shall be identified with reasonable particularity together with the basis for non-production;

 

(3) specify a larger group of documents or things from which the documents or things to be produced or made available may be identified as provided by subdivision (a)(2)(i);

 

(4) object to the request on the grounds set forth in Rule 4011(a), (b), and (e) or on the ground that the request does not meet the requirements of Rule 4009.11;

 

(5) state that after reasonable investigation, it has been determined that there are no documents responsive to the request.

 

(c)  The answer shall be signed and verified by the party making it and signed also by the attorney making an objection if one is set forth.

 

Pa.R.C.P. No. 4009.12(a)-(c).

Under the holding in Thompson  v. Nason Hospital, 591 A.2d 703 (Pa. 1991) ] a hospital can be held directly liable for negligence under a theory called “corporate negligence.”  The concept of corporate negligence was explained 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, 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 physicians;  (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. 591 A.2d at 707 (citations omitted).

Thus, 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. Bordlemay v. Keystone Health Plans, Inc., 789 A.2d 748 (Pa. Super. 2001), citing Moser v. Heistand, 681 A.2d 1322, 1325 (Pa. 1996). Corporate negligence is based on the negligent acts of the institution.  Id. 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 liable, as opposed to vicariously liable, for its own negligent acts.  Id.

We find that the information requested has the potential to lead to admissible evidence for trial of this matter with regard to the issue of Good Samaritan’s corporate negligence.  The allegations stated in support of this cause of action involve omissions with regard to Good Samaritan’s rules and procedures for stroke symptoms which occur post-surgery.  Good Samaritan objects to the production of P-3 Attachment B based on its position that it pertains to treatment for post-surgical circumstances not involving stroke symptoms.

We find that provisions involving protocol as to other post-surgical conditions are relevant and discoverable.   Although the procedure may not pertain directly to post-surgical patients exhibiting stroke symptoms, it may be relevant to reveal additional or different procedures for obtaining evaluation for other comparatively serious post-surgery situations which were not part of the post-surgery protocol for patients who suffered stroke symptoms.  It may be Plaintiffs’ position that Good Samaritan knew of the benefit of such additional/different procedures with regard to these other circumstances and should have realized that the utilization of such procedures should have been mandated for patients  in the same circumstances as Sandra.  Plaintiffs may posit that such protocol would have resulted in more timely treatment of Sandra had additional/different measures been included in the instructions with regard to patients exhibiting her symptoms.

To the extent that Good Samaritan asserts that this information is not discoverable under the provisions of the Medical Care and Availability and Reduction of Error Act (“MCARE”), 40 P.S. §1303.101 et seq, we  reject that argument.  Under MCARE,

… Any documents, materials or information solely prepared or created   … which arise out of matters reviewed by the patient safety committee … or the governing board of a medical facility … are confidential and shall not be discoverable or admissible as evidence in any civil or administrative action or proceeding.  Any documents, materials, records or information that would otherwise be available from original sources shall not be construed as immune from discovery or use in any civil or administrative action or proceeding merely because they were presented to the patient safety committee or governing board of a medical facility.

 

40 P.S. §1303.311.  This item was not generated from any patient safety committee proceeding.  Even if it was utilized in assessing employee performance in an internal review of this incident, this information is obviously available and distributed by Good Samaritan to its employees for instructive purposes and is therefore subject to discovery.

Rule 4009.12(c) requires that answers to Requests for Production of Documents be verified and Plaintiffs complain that Good Samaritan has failed to comply with this requirement.  If Good Samaritan has not done so already, we will direct it to provide a verification of its Response and Supplemental Response to Plaintiffs’ Request for Production of Documents Set III.