Appeal from the Order entered October 15, 1987, in the Court of Common Pleas of Philadelphia County, Civil, No. 4887 July Term 1983.
Kenneth W. Richmond, Philadelphia, for appellant.
Nancy L. Siegel, Philadelphia, for Health Maintenance, appellee.
McEwen, Olszewski and Cercone, JJ. McEwen, J., concurs with opinion.
[ 377 Pa. Super. Page 610]
This is an appeal from the trial court's order granting summary judgment in favor of defendant/appellee, Health Maintenance Organization of Pennsylvania (hereinafter HMO). Appellant asserts that the trial court erred in granting the motion for summary judgment when there
[ 377 Pa. Super. Page 611]
existed a question of material fact as to whether participating physicians are the ostensible agents of HMO. For the reasons stated below, we reverse the grant of summary judgment.
The facts, as averred by the parties in their pleadings and elicited through deposition testimony, reveal that at the time of her death, decedent and her husband were participants in the HMO. HMO is a medical insurance provider that offers an alternative to the traditional Blue Cross/Blue Shield insurance plan.*fn1 Decedent's husband became eligible for participation in a group plan provided by HMO through his employer. Upon electing to participate in this plan, decedent and her husband were provided with a directory and benefits brochure which listed the participating physicians. Restricted to selecting a physician from this list, decedent chose Doctor David Rosenthal and Doctor Perry Dornstein as her primary care physicians.
In June of 1982, decedent contacted Doctor David Rosenthal regarding a lump in her breast. Doctor Rosenthal ordered a mammogram to be performed which revealed a suspicious area in the breast. Doctor Rosenthal recommended that decedent undergo a biopsy and referred decedent to Doctor Erwin Cohen for that purpose. Doctor Cohen, a surgeon, is also a participating HMO physician. The referral to a specialist in this case was made in accordance with the terms and conditions of HMO's subscription agreement.*fn2
[ 377 Pa. Super. Page 612]
On July 6, 1982, Doctor Cohen performed a biopsy of decedent's breast tissue at Albert Einstein Medical Center. During the procedure, Doctor Cohen perforated decedent's chest wall with the biopsy needle, causing decedent to sustain a left hemothorax. Decedent was hospitalized for treatment of the hemothorax at Albert Einstein Hospital for two days.
In the weeks following this incident decedent complained to her primary care physicians, Doctor David Rosenthal and Doctor Perry Dornstein, of pain in her chest wall, belching, hiccoughs, and fatigue. On August 19, 1982, decedent awoke with pain in the middle of her chest. Decedent's husband contacted her primary care physicians, Doctors Rosenthal and Dornstein, and was advised to take decedent to Albert Einstein hospital where she would be examined by Doctor Rosenthal. Upon arrival at Albert Einstein emergency room, decedent related symptoms of chest wall pain, vomiting, stomach and back discomfort to Doctor Rosenthal. Doctor Rosenthal commenced an examination of decedent, diagnosed Tietz's syndrome,*fn3 and arranged for tests to be performed at his office where decedent underwent x-rays, EKG, and cardiac ioenzyme tests.*fn4 Decedent was then sent home and told to rest.*fn5
During the course of that afternoon, decedent continued to experience chest pain, vomiting and belching. Decedent
[ 377 Pa. Super. Page 613]
related the persistence and worsening of these symptoms by telephone to Doctors Rosenthal and Dornstein, who prescribed, without further examination, Talwin, a pain medication. At 5:30 that afternoon decedent was discovered dead in her bathroom by her husband, having expired as a result of a myocardial infarction.
Appellant's complaint and new matter aver that HMO advertised that its physicians and medical care providers were competent, and that they had been evaluated for periods of up to six months prior to being selected to participate in the HMO program as a medical provider. The complaint further avers that decedent and appellant relied on these representations in choosing their primary care physicians. The complaint then avers that HMO was negligent in failing to "qualify or oversee its physicians and hospital who acted as its agents, servants, or employees in providing medical care to the decedent nor did HMO of Pa. require its physicians, surgeons and hospitals to provide adequate evidence of skill, training and competence in medicine and it thereby failed to furnish the decedent with competent, qualified medical care as warranted." Paragraph 39, plaintiff's amended complaint. Finally, appellant's new matter avers that HMO furnished to its subscribers documents which identify HMO as the care provider and state that HMO guarantees the quality of care. Plaintiff's new matter, paragraph 18.
Appellant's theory of recovery before the trial court was primarily one of vicarious liability under the ostensible agency theory. See Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). In granting defendant HMO's motion for summary judgment, the trial court found that plaintiff/appellant had failed to establish either of the two factors on which the theory of ostensible agency, as applied to hospitals in Capan, is based. On appeal, appellant contends ...