Legal News

Should hospitals be held liable along with its acting agents for medical malpractice and wrongful death claims?

Mar 18, 2015 @ 09 : 12 am

Going into the hospital on a stretcher and coming out in a body bag. Should hospitals be held liable along with its acting agents for medical malpractice and wrongful death claims? That is the very question that attorney James W. Sutton, III, Esq.  of Vlasac & Shmaruk, LLC is asking the Supreme Court of the Commonwealth of Pennsylvania to reconsider for our case Green v. Pennsylvania Hospital et.al . Joseph Fusco, the deceased, initially went into the hospital for shortness of breath, wheezing and rapid breathing. He was admitted into the intensive care unit. About a week into his stay, he was given a tracheotomy.  The following day, massive bleeding commenced from the trach site, due to the negligence of a nurse who failed to take the necessary precautions when she moved Mr. Fusco.

A team of emergency physicians were called in to attend to the patient. The responding ENT physician removed the trach tube and negligently reinserted it into the patient’s original trach site, rather than properly reinserting it through Mr. Fusco’s mouth.  The ENT placed the rube into Mr. Fusco’s thorax, rather than into his trachea and the team commenced “ambu-bagging” Mr. Fusco.  The air was forced around Mr. Fusco’s trachea (rather than into his trachea).  This caused Mr. Fusco’s trachea to be crushed and collapsed, asphyxiating the patient. Because the patient was in a long term same sex relationship and same sex marriages had not been legalized yet, his longtime partner was not provided the benefits of a spouse and therefore, could not file a wrongful death or loss of consortium claim seeking compensation for pecuniary damages. Hence, the claims were limited to survival claims of conscious pain and suffering.

During this trial, the attorneys of Vlasac & Shmaruk argued that the hospital should be held accountable along with its acting agents even though the hospital denied that the treating ENT was an employee of the hospital (the ENT was a resident at the time). The attorneys also argued that the testimony of the plaintiff’s expert witness as an experienced nurse should be permitted to prove the treating nurse’s initial negligence. Their request was denied, because, according to the trial court, the nurse was not qualified to give causation testimony. The trial court granted a motion for non-suit, finding that the hospital could not be held vicariously liable for the acts of the ENT. James W. Sutton, III, Esq. and John M. Vlasac, Jr., Esq.  filed an appeal against the judge’s decision shortly thereafter. The appellate attorney, Howard Bashman, Esq. who is acting on behalf of Vlasac & Shmaruk, LLC, is now arguing those two major points.  Why shouldn’t the hospital along with the doctors be held responsible, if the patient reasonably believes that the doctor is acting as an agent of the hospital? And why is it that a nurse cannot testify to the improper treatment of a patient to point out the other nurse’s negligence?  The Supreme Court was quite clear in recent oral arguments, that Plaintiff’s arguments were quite persuasive and our firm anticipates a favorable ruling from the Supreme Court in the next few months.

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