alleges that the nurse failed to inform her properly of possible side effects and risks that could require a hysterectomy. Proof of these allegations could support a finding that Nurse Puchini acted negligently.
Negligent Infliction of Emotional Distress
As for Nurse Puchini's contention that the plaintiff has not stated a claim for the negligent infliction of emotional distress, I disagree. Pennsylvania law permits a plaintiff to recover for any mental suffering that results from physical injury, however slight, if the defendant's negligence caused the physical injury. See Murphy v. Abbott Lab., 930 F. Supp. 1083, 1086 (E.D. Pa. 1996); Tomikel v. Pennsylvania, 658 A.2d 861, 863 (1995)(citing Niederman v. Brodsky, 436 Pa. 401, 403, 261 A.2d 84, 85 (1970)). The plaintiff alleges that, because of Nurse Puchini's negligence, she suffered physical injuries that have in turn resulted in emotional and psychological injuries. Proof of these allegations could support recovery.
Battery by Lack of Informed Consent
Nurse Puchini asserts that, as a physician's nurse, she had no duty to obtain the plaintiff's informed consent to surgery. She further maintains that even if she did have such a duty, the allegations of her negligence do not support a claim for battery.
The plaintiff first responds that Nurse Puchini assumed the duty to obtain informed consent by giving her the Reading Hospital and Medical Center's informed consent form. In addition, she contends that Nurse Puchini incurred that duty through the doctrine of ostensible agency.
A. Duty to Obtain Informed Consent
Because nurses do not have a duty to obtain informed consent, the plaintiff has not stated a claim for battery by lack of informed consent against Nurse Puchini. Pennsylvania law generally imposes no duty on persons other than surgeons to obtain informed consent before performing surgery. Thus, courts have not imposed the duty on nurses. Persons who assist the "primary treating physician" have no duty to obtain the patient's informed consent. Jones, 813 F. Supp. at 1130.
Nor has the plaintiff stated a claim for battery by lack of informed consent, because there is no allegation that Nurse Puchini committed a battery. The tort of battery by lack of informed consent includes as one of its components "technical" battery, an intentional tort. Shaw v. Kirschbaum, 439 Pa. Super. 24, 34-35, 653 A.2d 12, 17 (1994). A plaintiff may not ground an informed consent claim on negligence. See id.; Kelly v. Methodist Hosp., 444 Pa. Super. 427, 432, 664 A.2d 148, 150 (1995). Instead, the defendant must actually intend contact with the plaintiff. See Friter, 414 Pa. Super. at 630-31, 607 A.2d at 1115 (hospital intended the placement of experimental devices in patient's body as part of clinical trial). Nothing in the Complaint supports the inference that Nurse Puchini intentionally touched the plaintiff.
B. Vicarious Liability through Ostensible Agency
Because the doctrine of ostensible agency applies to independent contractors, not employees, the doctrine does not apply here. The doctrine makes a hospital vicariously liable for its independent-contractor physician's torts in situations where the patient looks primarily to the hospital for care and the hospital holds out the physician as its employee. See Capan, 287 Pa. Super. at 368, 430 A.2d at 649 (hospital engaged physician as independent contractor, not employee). An example includes a visit to an emergency room. The doctrine applies only to the conduct of independent contractors. According to the Complaint, however, Nurse Puchini acted as Dr. Hoffman's employee, not his independent contractor, at all relevant times. Consequently, the doctrine has no application here.
The doctrine also does not apply here because it makes the principal liable for the torts of agent, not the agent for the torts of the principal. Nurse Puchini, the agent of Dr. Hoffman, cannot be liable for his alleged intentional tort, under some sort of doctrine of respondeat inferior.
Intentional Infliction of Emotional Distress
Nurse Puchini argues that the allegations of negligence are insufficient to satisfy the mental state requirement for the intentional infliction of emotional distress. I disagree. A jury could find that Nurse Puchini acted outrageously by not advising the plaintiff of the risks of the surgery. That would be enough to support recovery. See Williams v. Guzzardi, 875 F.2d 46, 52 (3d Cir. 1989).
Nurse Puchini maintains that an award of punitive damages would not be justifiable. Noting that Pennsylvania law requires intentional, reckless, or malicious conduct to support a punitive damages claim, she asserts that the case involves only negligence. I disagree. The plaintiff responds that the unauthorized, intentional removal of her uterus could justify an award of punitive damages. I fully agree.
AND NOW, this 7th day of July, 1997, for the reasons described in the accompanying memorandum:
1) Reading Hospital and Medical Center's Motion to Dismiss Counts VIII and X is GRANTED as to Count VIII but DENIED as to Count X, and Motion to Strike Counts VIII and X is DENIED; and
2) Susan Puchini's Motion to Dismiss the Complaint is GRANTED as to Count VII but DENIED as to all other Counts. Count VIII against the Reading Hospital and Count VII against Susan Puchini are DISMISSED with twenty days' leave to amend the Complaint.
BY THE COURT:
Robert S. Gawthrop, III, J.
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