Green, R., Aplt. v. Pennsylvania Hospital., 123 A.3d 310

Decedent Joseph Fusco was admitted to Pennsylvania Hospital, intubated, and received a tracheotomy; cuff was deflated during weaning and later significant bleeding and airway obstruction occurred, culminating in failed airway management and death.
ENT physician Dr. Malaisrie responded after hospital staff paged for anesthesiology and ENT; she attempted bronchoscopy and tube exchanges that ultimately contributed to loss of airway.
Plaintiff (executor Ronald Green) sued the hospital, nurses (including Nurse Lori Yakish), and physicians alleging negligence; Nurse Yakish was alleged to have mishandled post-tracheotomy care and to have moved the patient, precipitating the event.
Trial court excluded portions of plaintiff’s nursing expert (William Pierce) testimony on causation and granted a nonsuit for all defendants; the Superior Court affirmed in a split decision.
The Supreme Court of Pennsylvania (this opinion) affirmed the nonsuit as to Nurse Yakish (causation evidence excluded properly) but reversed the nonsuit as to the Hospital, holding the ostensible-agency question should have gone to the jury and remanding for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether hospital vicarious liability via ostensible agency (MCARE §1303.516(a)(1)) should be submitted to the jury for Dr. Malaisrie’s care	Decedent looked to the hospital in an emergency; ENT came at the hospital's page as part of the hospital response, so a reasonably prudent patient could believe the physician acted as the hospital's agent	Evidence at trial did not show hospital held out Dr. Malaisrie as its agent; staff privileges or emergency attendance alone are insufficient and allowing a jury would eviscerate statutory limits	Reversed nonsuit as to Hospital: sufficient evidence created a jury question whether a reasonably prudent patient would believe care was by the hospital or its agents; remand for further proceedings
Whether the trial court erred in excluding nursing expert Pierce’s causation testimony linking Nurse Yakish to death	Pierce was qualified to testify about causation from nursing acts (per Freed) and exclusion prevented proving causation against Yakish	Allowing Pierce to opine on causation against nurses but not physicians (whom he lacked qualifications to opine about under MCARE) risked jury confusion; trial court discretion under MCARE and Rule 403 justified exclusion	Affirmed nonsuit as to Nurse Yakish: trial court did not abuse discretion in excluding Pierce’s causation testimony given potential to confuse jury where claims implicated both physicians and nurses

Flagiello v. Pennsylvania Hosp., 208 A.2d 193 (Pa. 1965) (abolished charitable-immunity defense for hospitals)
Tonsic v. Wagner, 329 A.2d 497 (Pa. 1974) (recognized respondeat superior for hospital liability)
Capan v. Divine Providence Hosp., 430 A.2d 647 (Pa. Super. 1980) (adopted ostensible agency theory for hospital liability)
Simmons v. St. Clair Mem’l Hosp., 481 A.2d 870 (Pa. Super. 1984) (withdrew agency question from jury was error where hospital presented physician as provider of care)
Freed v. Geisinger Med. Ctr., 971 A.2d 1202 (Pa. 2009) (nurse may testify on causation related to nursing care; discussed limits with MCARE)
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 2012) (standards for negligence and review of compulsory nonsuit)