United States District Court, Middle District of Pennsylvania
March 15, 1999
ESTATE OF JEANNETTE TRANOR, ET AL., PLAINTIFFS,
THE BLOOMSBURG HOSPITAL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McCLURE, District Judge.
On September 29, 1995, plaintiffs Jeannette Tranor and Richard Tranor
(both now deceased) commenced this action with the filing of a complaint
in the Eastern District of Pennsylvania alleging negligence on the part
of the defendant health care providers. Plaintiffs also alleged that
defendants committed battery by providing medical treatment without
informed consent on the part of Jeannette Tranor. The case was
transferred to this court by Order of Court dated January 17, 1996, which
was supplemented by a memorandum dated January 22, 1996. The claim of
battery as against defendant Bloomsburg Hospital was dismissed by Order
of Court dated April 26, 1996. Plaintiff Delphine Meyers now represents
the estates of Jeanette and Richard Tranor.
Before the court are: (1) a motion (actually, two such motions) by
defendants Hinkle and Vickers for summary judgment on Count III of the
complaint; (2) a motion by defendant Vickers for summary judgment as to
Count I of the complaint insofar as it refers to negligent referral; (3)
a motion by defendant Hinkle to dismiss claims raised pursuant to
Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991); and (4) a
motion by defendant Hinkle for summary judgment regarding negligence in
the performance of surgery and negligent follow-up.
I. MOTIONS FOR SUMMARY JUDGMENT
Plaintiff indicates that there is no opposition to the motions numbered
(1), (2), and (4). Plaintiffs Brief in Opposition to Motion of Richard
S. Hinkle, D.O., to Dismiss Claims Per: Thompson v. Nason at 1 n. 2. We
construe this statement to mean that plaintiff concurs in the motions,
and they will be granted. The first motion for summary judgment on Count
III of the complaint will be denied as moot, based on the filing of the
II. MOTION TO DISMISS
A. Procedural Posture and Standard
The only remaining motion, then, is the motion to dismiss claims
against Dr. Hinkle for negligent referral. We note first that, in
contrast to a statement in the "Introduction" portion of Dr. Hinkle's
reply brief, the motion is one to dismiss, not for summary judgment. No
"separate, short and concise statement of the material facts, in numbered
paragraphs, as to which the moving party contends there is no genuine
issue to be tried" was filed as required under LR 56.1 of the Local Rules
for the Middle District of Pennsylvania. Absent a proper statement of
facts, we cannot review the factual basis for the claim (or its lack of
merit, as argued by Dr. Hinkle). We therefore confine our analysis to the
legal validity of a claim for negligent referral.
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) admits the well
pleaded allegations of the complaint, but denies their legal sufficiency.
Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738,
740, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976). The complaint must be
construed in favor of the plaintiff with every doubt resolved in the
plaintiffs favor. In re Arthur Treacher's Franchise Litigation, 92 F.R.D.
398, 422 (E.D.Pa. 1981). That is, the court must accept as true all
factual allegations set forth in the complaint as well as all reasonable
inferences that can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65
(3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). The court looks only to the facts alleged in the
complaint and any attachments, without reference to any other parts of
the record. Jordan at 1261. "[A] case should not be dismissed unless it
clearly appears that no relief can be granted under any set of facts that
could be proved consistently with the plaintiffs allegations." Id.
(citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Whether a plaintiff will ultimately
prevail is not a consideration for review of a motion under Rule 12
(b)(6). Nami at 65.
Plaintiff disclaims any reliance on Thompson, and indicates that the
claim set forth in Count I of the complaint is brought under general
principles of negligence, Succinctly and somewhat colloquially stated, the
claim is that Dr. Hinkle should have known better than to send Jeanette
Tranor to Dr. Brown for surgery because Dr. Brown was not competent and
Dr. Hinkle knew it or should have known it. We agree with the parties
that Thompson is inapposite, as it refers to corporate liability on the
part of a hospital for negligent treatment.
Dr. Hinkle cites a number of cases in his reply brief which also are
inapposite. Most of the cases cited refer to vicarious liability on the
part of the referring physician for negligent treatment by the physician
to whom the patient was referred. Plaintiff's claim here is that the
referral itself was negligent, not that Dr. Hinkle should be liable for
Dr. Brown's negligence.
For example, in Shaw v. Kirschbaum, 439 Pa. Super. 24, 658 A.2d 12
(1994), allocatur denied; 541 Pa. 652, 664 A.2d 542 (1995) (table), the
plaintiff was advised by her cardiologist that she needed heart surgery.
The cardiologist assisted with travel and financial arrangements for the
surgery to be performed in Texas. Plaintiff asserted that no one advised
her of a recognized risk inherent in the surgery which caused her to
become partially paralyzed. Id. at 27, 653 A.2d at 13. The plaintiffs own
cardiologist was not liable because the lack of informed consent made the
surgery a technical battery for which only the surgeon could be liable.
Id. at 30, 653 A.2d at 15. That is, the surgeon must obtain informed
consent, and the referring physician was under no duty (an element of
negligence) to do so; Pennsylvania law simply does not recognize such a
duty. Id. at 31-32, 653 A.2d at 15-16.
In this instance, plaintiff is not attempting to hold Dr. Hinkle liable
for not informing her of a risk involved in the surgery, nor even for
surgery allegedly performed poorly. Plaintiff is not even arguing that
Dr. Hinkle was negligent in recommending surgery. Rather, plaintiff is
alleging that Dr. Hinkle was negligent in referring Mrs. Tranor to an
incompetent surgeon. In this line of argument, the allegedly botched
surgery thus becomes the injury which was caused by the negligent
Somewhat more analogous is the case of Strain v. Ferroni,
405 Pa. Super. 349, 592 A.2d 698 (1991), in which the Superior Court held
that a physician was not liable for the acts of a "covering" physician
because the primary physician was not the principal of the covering
physician, exercising no control over the covering physician, and because
the primary physician was not consulted in the care provided by the
covering physician; Id. at 361-362, 592 A.2d at 704-705. The Superior
Court also noted that the record reflected that the primary physician had
confidence in the abilities of the covering physician and that the
covering physician was independently licensed to practice medicine. Id.
at 361 and 861 a. 6, 592 A.2d at 705 and 705 n. 6.
There appears to have been no question in Strain of the covering
physician's competence, and plaintiff here does not contend that Dr.
Hinkle was a principal of Dr. Brown. Again, the opinion is not
particularly helpful in the situation presented in the instant case.
In Hannis v. Ashland State General Hospital, 128 Pa.Cmwlth. 890,
554 A.2d 574, allocatur denied; 524 Pa. 632, 574 A.2d 73 (1989) (table),
a family practitioner referred the plaintiff to a specialist and
apparently provided no further care. The Commonwealth Court held that the
family practitioner did not have a duty to follow the care after a
referral. Id. at 398, 554
A.2d at 578. Again, the case is not particularly helpful.
More suggestive is the Superior Court's opinion in Jones v. Monteflore
Hospital, 275 Pa. Super. 422, 418 A.2d 1361 (1980), vacated on other
grounds, 494 Pa. 410, 431 A.2d 920 (1981).*fn1 In that case, the
plaintiff complained of a mass in her breast. Her physician referred her
to a professional association which specialized in the diagnosis of
breast cancer. After removal of one of two masses found in the plaintiffs
breast, she developed cancer and a mastectomy was performed. The cancer
had spread to a lymph node, so that the plaintiff underwent chemotherapy
and other treatment. 275 Pa.Super. at 426-427, 418 A.2d at 1363. Among a
number of other claims of error, the plaintiff argued that the trial
court erred in failing to instruct the jury that a physician who refers a
patient to a specialist but continues to provide care after the referral
is negligent in failing to determine whether the patient received proper
care from the specialist. Id. at 432 n. 4, 418 A.2d at 1367 n. 4. Dr.
Hinkle summarizes the holding of Jones as "general practitioner is not
liable for not discovering that the specialist did not adequately treat
the patient." Reply Brief in Support of Motion to Dismiss at 3. This is
not really an accurate statement of the holding.
The Superior Court referred to a case from New Jersey in which the
plaintiff sued a general practitioner who treated the plaintiff with
injections of a drug which caused deafness. Marchese v. Monaco,
52 N.J. Super. 474, 478, 145 A.2d 809, 811 (1958), certification denied,
28 N.J. 565, 147 A.2d 609 (1959). The defendant argued that, because he
had consulted with specialists as to whether it was safe to administer
the drug and the dosage to be used, he had exercised reasonable care. 52
N.J.Super. at 488, 145 A.2d at 817. The Superior Court of New Jersey held
that consultation with specialists is evidence of due care but does not
alone conclusively establish due care:
The reason is obvious. In spite of the consultation
the general practitioner still owes to the patient the
duty to exercise his powers of observation and that
degree of skill and learning possessed and exercised
under similar circumstances by competent general
practitioners. The case must be rare indeed in which
the advice of a consultant will be an absolute defense
to a doctor who closes his eyes completely and shelves
that skill and caution which even a general
practitioner must use.
The Pennsylvania Superior Court, in turn, stated, "Thus, the court in
Marchese held that a general practitioner who refers a patient to
specialists must comply with the same standard of care as in all other
circumstances: the reasonable man standard. We believe this holding is
correct." Jones at 432 n. 4, 418 A.2d at 1367 n. 4 (citations omitted).
We also believe that the converse of Marchese is
correct: A general practitioner is not necessarily
liable for failing to determine that the specialists
to whom he referred a patient did not adequately treat
the patient. Since [the plaintiffs] requested charge
implied that a general practitioner was necessarily
liable, it was properly rejected.
The discussion of Marchese in Jones is actually slightly inaccurate in
that the Marchese case involved a consultation, not a referral. However,
the point is the same: if a treating physician reasonably should be
expected to realize that a specialist's care is inadequate, based on the
standard of care of a general practitioner, then the general practitioner
may be liable for failing to take appropriate steps. Conversely, if the
general practitioner does not
realize that the specialist's care is inadequate, he or she is not
necessarily liable, but may be liable if a general practitioner (under
the same standard) should have recognized the inadequacy and taken
appropriate steps. This principle would apply whether the treatment is by
the general practitioner after consultation with a specialist or by the
specialist and the general practitioner is providing further care.
Considering this principle in conjunction with Hannis, the general
practitioner is not required to provide follow up care or otherwise to
continue treating the patient, but must exercise reasonable care if he or
she does. That reasonable care would extend to recognizing deficiencies
in the care provided by the specialist, if such recognition is within the
skill and knowledge of a general practitioner.
Given these principles, we believe that a reasonable physician would
not refer a patient to a specialist that the physician knows or has
reason to know is not competent. We recognize, as did the Commonwealth
Court in Hannis, that the specialist has an independent duty to diagnose
the patient and to recommend treatment. However, the initial physician's
ability to delegate this duty of care is based on a presumption that the
specialist (or, as in Strain, a covering physician) is competent. We do
not believe that the rule would apply when the referring physician knows
or should know the specialist to be incompetent. This conclusion is based
on a straightforward application of the standard of reasonable care.
In setting forth this conclusion, we think it important to note several
observations. First, we do not know that Dr. Hinkle knew or had reason to
know that Dr. Brown was not competent, and we certainly make no comment
on Dr. Brown's actual competence. The motion filed by Dr. Hinkle was one
to dismiss, so that there is no factual record before us related to these
matters. We will not convert the motion to one for summary judgment
because the necessary documents supporting such a motion, see
Fed.R.Civ.P. 56(e), LR 56.1, are not before the court and directing the
filing of such would entail further delay of a case already pending for
We also note the difficulty in addressing this issue based on the
manner in which it was presented to the court. Dr. Hinkle moved to
dismiss the negligent referral claims because Thompson did not extend
liability to a referring physician, instead holding that a hospital may
be liable under a theory of corporate liability for care provided in the
hospital. The short brief in support of the motion is limited to that
issue. Plaintiff's somewhat longer brief indicates that Dr. Hinkle simply
misconstrues the theory of recovery, that general negligence principles
apply, and that there is a factual basis for the contention that there
were shortcomings in Dr. Brown's training and experience of which Dr.
Hinkle was aware. Only in his reply brief does Dr. Hinkle address the
legal merits of a claim for negligent referral, making the argument
rather one-sided. In addition, as noted, most of the authority cited (and
therefore the related argument) is not directly on point.
Based on all of this, we limit our holding. We do not conclude that
Dr. Hinkle knew or had reason to know that Dr. Brown was not competent to
perform Mrs. Tranor's surgery, nor do we hold that such a shortcoming
actually existed. Moreover, we do not conclude that every referring
physician is liable for negligence on the part of a specialist to whom the
patient is referred. We conclude only that negligent referral to a
specialist, i.e. when the referring physician knows or has reason to know
the specialist is incompetent, may be a basis for liability under general
negligence principles. We further limit this holding to the motion to
dismiss, and make no comment on whether the argument put forward by
plaintiff would survive a motion for summary judgment or a motion for
judgment as a matter of law, if such a motion were fully developed.
An order consistent with this memorandum will issue.
For the reasons stated in the accompanying memorandum, IT IS ORDERED
1. The motion (record document no. 58) by defendants Hinkle and Vickers
for summary judgment on Count III of the complaint is denied as moot.
2. The motion (record document no. 62) by defendants Hinkle and Vickers
for summary judgment on Count III of the complaint is granted.
3. The motion (record document no. 65) by defendant Vickers for summary
judgment regarding the negligent referral claims, Count I at ¶ 38
(a)-(c), is granted.
4. The motion (record document no. 69) by defendant Hinkle for summary
judgment regarding negligence in the performance of the surgery on
October 5, 1993, Complaint at ¶ 38(d)-(l), (n), (q), (t), is
5. The entry of judgment is deferred pending entry of final judgment on
all remaining claims.
6. The motion (record document no. 67) by defendant Hinkle to dismiss
the negligent referral claims is denied.