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FABIAN v. MATZKO (09/22/75)

decided: September 22, 1975.

FABIAN, ET UX., APPELLANTS,
v.
MATZKO, ET AL.



Appeal from order of Court of Common Pleas of Columbia County, March T., 1967, No. 188, in case of Jan Fabian and Helen Fabian, husband and wife v. Dr. Michael Matzko, Dr. Thomas Cahill and The Geisinger Medical Center.

COUNSEL

Robert M. Ross, with him Galen D. Hawk, and Richter, Syken, Ross & Levant, for appellants.

F. Porter Wagner and Gailey C. Keller, with them James K. Thomas, and Marks and Wagner, and Smith, Eves and Keller, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Spaeth, J. Dissenting Opinion by Jacobs, J. Watkins, P.j., joins in this dissenting opinion.

Author: Price

[ 236 Pa. Super. Page 268]

This appeal stems from the lower court's order granting a motion for summary judgment in favor of the defendants-appellees, Dr. Thomas Cahill and The Geisinger Medical Center, a private hospital located in Danville, Pennsylvania. Viewing the facts in the light most favorable to the appellant, as we must for purposes of

[ 236 Pa. Super. Page 269]

    this appeal, Gast v. Petsinger, 228 Pa. Superior Ct. 394, 323 A.2d 371 (1974), the record establishes the following: On or about April 22, 1965, the plaintiff-appellant, Helen Fabian, developed an intense and sudden headache, stiffness in her neck, and nausea. Her husband, plaintiff-appellant Jan Fabian, telephoned Dr. Michael Matzko,*fn1 who examined Mrs. Fabian and diagnosed her condition as a viral infection. Later that day, when the medications prescribed by Dr. Matzko produced no observable improvement in Mrs. Fabian's condition, Mr. Fabian called the Geisinger Medical Center. The operator at the hospital connected Mr. Fabian with a man who identified himself as Dr. Cahill. Mr. Fabian told Dr. Cahill that his wife had developed a "sudden, severe headache, that she was vomiting and complaining about a stiffness in the back of her neck and there was soreness in her leg." (NT 24a) Mr. Fabian told Dr. Cahill that he wanted Mrs. Fabian admitted to the hospital for a check-up. In accordance with the hospital's standard procedure, Dr. Cahill asked Mr. Fabian whether he had a family doctor and what his diagnosis had been. Dr. Cahill told Mr. Fabian that Mrs. Fabian could not be admitted unless the arrangements for admission were made by Dr. Matzko. Mr. Fabian attempted to contact Dr. Matzko, but was unable to do so. He then tried to re-contact Dr. Cahill, but was told that Dr. Cahill had left the Medical Center for the day.

Mrs. Fabian's condition seemed to improve over the next few days, but on May 3, 1965, she suffered another attack and was admitted to the Geisinger Medical Center, through arrangements made at that time by Dr. Matzko. She had sustained a cerebral hemorrhage with permanent brain damage, loss of speech, partial paralysis, loss of

[ 236 Pa. Super. Page 270]

    hearing, loss of vision and expressive and receptive aphasia.

Appellants filed this trespass action alleging that Mrs. Fabian's injuries were caused by the negligence of the appellees in failing to admit Mrs. Fabian for treatment and in failing to render proper medical assistance to her.

The appellants base their contention on Restatement (Second) of Torts, § 323 (1965): "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking."

As phrased by the appellant, the issue under § 323 is whether a jury can conclude that the Geisinger Medical Center through its agent, Dr. Thomas Cahill, undertook either gratuitously or for a consideration, to render medical service to the appellant. Even under the broadest view of what constitutes medical service, Dr. Cahill never rendered those services to the appellant in this case. The sole contact between appellant and Dr. Cahill was a telephone call in which Dr. Cahill informed the appellant of the hospital's policies.

In Hamil v. Bashline, 224 Pa. Superior Ct. 407, 307 A.2d 57 (1973), the physician-patient relationship began by a telephone call. But in that case, the plaintiff was told to bring her decedent to the hospital. At the hospital, the doctor on duty ordered an EKG and an unsuccessful attempt was made to take an EKG. Thus the substance of the relationship in Hamil was significantly greater than in the case presently before us. Clearly, liability under § 323 can be imposed only upon "[o]ne who undertakes

[ 236 Pa. Super. Page 271]

. . . to render service to another. . . ." Unlike Hamil, no such undertaking occurred in this case, and no physician-patient relationship ever arose.

Appellant's second theory of liability is based upon a growing line of cases which has recognized the duty of a hospital with an emergency facility to admit patients in need of emergency care. Although never considered by a Pennsylvania appellate court, the general rule in other jurisdictions is that a private hospital is under no duty to accept patients that it considers undesirable and it may reject or accept patients for admission as it sees fit. See Am. Jur. 2d, Hospitals and Asylums § 12; Le Juene Road Hospital, Inc. v. Watson, 171 So. 2d 202 (Fla. App. 1965). Some jurisdictions have recognized an exception to this rule where a hospital with an emergency facility refuses to treat an applicant in an emergency situation.

In Wilmington General Hospital v. Manlove, 54 Del. 15, 174 A.2d 135 (1961), Darien Manlove, an infant, developed a fever and diarrhea. Darien's family doctor prescribed medication, which was applied, but to no avail. Darien's parents took her to the emergency ward of the defendant hospital. The nurse on duty told the parents that Darien could not be treated at the hospital "because the child was under the care of a physician and there would be danger that the medication of the hospital might conflict with that of the attending physician." 54 Del. at 17, 174 A.2d at 136. Darien died shortly thereafter.

In the wrongful death action brought by Darien's parents against the hospital, the Supreme Court of Delaware affirmed the lower court's refusal to grant the defendant's motion for summary judgment. The court recognized the general rule that a hospital may refuse to accept patients for any reason, and also recognized that a hospital is under no duty to maintain an emergency facility. However, the court held that "liability on the part of a hospital may be predicated on the refusal of service to a patient in case of an unmistakable emergency

[ 236 Pa. Super. Page 272]

[if the patient has relied upon a well-established custom of the hospital to render aid in such a case]." 54 Del. at 25, 174 A.2d at 140 (bracketed portion omitted in official report). The court was concerned with the fact that a person in need of immediate medical care uses valuable time when he goes to an emergency facility. A rejection at the emergency facility may mean that the injured ...


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