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STIPP v. KIM

January 31, 1995

JANET W. STIPP and JERRY W. STIPP
v.
PAUL S. KIM, M.D. and CHESTER COUNTY HOSPITAL



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 JANUARY 31, 1995

 Today we decide Defendant Chester County Hospital's Motion for Summary Judgment. This litigation is a medical malpractice action brought by Janet Stipp and her husband Jerry against Dr. Paul Kim and Chester County Hospital. According to the Complaint, in 1992, Dr. Kim performed a mammoplasty, or breast reduction operation on Janet Stipp. The Complaint alleges that Dr. Kim removed 226 more grams of breast tissue from Stipp's right breast than from her left, leaving her with a significantly larger left breast. Dr. Kim was recommended to Stipp by a neighbor and by Stipp's sister, who was a nurse at the Hospital. Stipp visited Dr. Kim's offices in Exton, Pennsylvania twice before the surgery. She had lab tests performed at the Hospital prior to the surgery, and had the actual surgery and post-operative care at the Hospital. Dr. Kim visited her at the Hospital following her surgery. Stipp alleges that neither Dr. Kim nor the Hospital informed her that Dr. Kim was an independent contractor and not an employee of the Hospital. According to the Complaint, the surgery has caused Stipp a great deal of mental pain and suffering, will require her to submit to a second bout of surgery and its concomitant side effects, and caused past, present and future lost earnings and earning capacity. Jerry Stipp alleges derivative injuries of loss of consortium. The plaintiffs' claims against the Hospital are an ostensible agency claim under Count I, a corporate negligence claim under Count III and a loss of consortium claim in Count IV. The Hospital seeks summary judgment on all claims.

 SUMMARY JUDGMENT STANDARD

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

 DISCUSSION

 1. OSTENSIBLE AGENCY

 In Pennsylvania, an independent contractor doctor can be an ostensible agent of a hospital if (1) the patient looks to the hospital for care, not the individual doctor, and (2) the hospital holds the doctor out as its employee. Simmons v. St. Clair Mem. Hosp., 332 Pa. Super. 444, 452, 481 A.2d 870, 874 (1984) (citing Capan v. Divine Providence Hosp., 287 Pa. Super. 364, 368-70, 430 A.2d 647, 649-50 (1980)). Ostensible agency is typically found in the emergency room setting, where a patient goes to the emergency room of a hospital for services and accepts them from whichever doctor is assigned to her case.

 The Hospital asserts that summary judgment is appropriate on Count I because Dr. Kim was an independent contractor, and not its employee. Therefore, it argues, he was not the Hospital's agent. The Hospital argues further that Stipp has not presented evidence that shows that she looked to the Hospital, and not Dr. Kim, for care, and therefore, he was not the Hospital's ostensible agent, either.

 Stipp rebuts this argument with an affidavit wherein she avers "during the time that I was Dr. Kim's patient, I was always under the impression that he was an employee or working for the hospital. I drew that impression not only from the recommendation by my sister, who was an employee of the hospital, but also based upon the location of the surgery and his follow-up visit with me while I was hospitalized." She points to the facts that she had lab work done at the Hospital and that the Hospital did not deny an association with Kim as further support for her ostensible agency claim.

 We find that Stipp has not presented us with evidence that creates a genuine issue of material fact on this claim. She presents evidence that she looked to the Hospital for care, but does not present any evidence that the Hospital held Dr. Kim out as its agent. Although her sister was employed as a nurse of the Hospital, Stipp does not allege that her sister was acting as an agent of the Hospital when she recommended Dr. Kim to Stipp. Stipp alleges that the Hospital did not deny a relationship with Dr. Kim, but a failure to deny does not rise to the level of "holding out." This is especially clear when the facts of this case are compared with the type of case where ostensible agency has typically been found; the emergency room setting.

 In sum, Stipp has not shown that there is a genuine issue of material fact as to whether the Hospital held Kim out as its agent. Accordingly, we grant ...


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