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McCloskey v. Valley Pain Center

April 19, 2010

CLIFFORD MCCLOSKEY AND FRANCES MCCLOSKEY
v.
VALLEY PAIN CENTER, LLC ET AL.
CLIFFORD MCCLOSKEY AND FRANCES MCCLOSKEY
v.
VALLEY PAIN CENTER, LLC ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

In this medical malpractice action, plaintiff Clifford McCloskey alleges that he suffered a seriously disabling infection from a negligently performed discogram procedure on his lower back.*fn1 His wife, plaintiff Frances McCloskey alleges a loss of consortium. The plaintiffs allege that Mr. McCloskey's infection was caused by bacteria that entered his spine when his lower back was injected as part of the discogram. In their complaint, the plaintiffs suggest that the infection occurred when the doctor performing the discogram, defendant Dr. Jeffrey Selk, D.O., who was not wearing a surgical mask, coughed during the procedure.

Three groups of defendants remain in the case: Dr. Selk and his corporation, Clinical Pain Management Association; Valley Pain Center, LLC ("Valley Pain"), the medical facility where Dr. Selk performed the procedure; and Crozer Chester Medical Center and Crozer Keystone Health System (collectively "Crozer Chester"), the facilities which provided treatment when Mr. McCloskey was hospitalized with severe back pain several days after the discogram and which allegedly failed to diagnose his infection.

Both Valley Pain and Crozer Chester have filed motions for summary judgment. The Court held oral argument on the motions on April 15, 2010. At the conclusion of the argument, the Court stated that the Court would grant both motions for summary judgment. The Court incorporates by reference its statements on the record at the oral argument into this memorandum.

Valley Pain and Crozer Chester's arguments for summary judgment both turn on whether the plaintiffs have produced expert reports that sufficiently establish the required elements of negligence on the part of the moving defendants and their employees. Although the issues raised in the motions are similar, the Court will address them separately.

I. Valley Pain's Motion for Summary Judgment

At oral argument, the plaintiffs clarified the scope of their claims against Valley Pain, mooting several of the issues raised in Valley Pain's summary judgment motion. The plaintiffs agreed that their experts had not opined that Valley Pain had violated a standard of care that the corporation owed to Mr. McCloskey and that they were therefore not seeking, in that sense, to hold Valley Pain directly liable for Mr. McCloskey's injury.*fn2

The plaintiffs also agreed that they could not hold Valley Pain liable for the alleged negligence of Dr. Selk. The plaintiffs conceded that Dr. Selk was not an employee of Valley Pain, but was instead an independent contractor. In their opposition to the summary judgment motion, the plaintiffs argued that they could nonetheless hold Valley Pain responsible for Dr. Selk's alleged negligence under a theory of ostensible agency.*fn3

After filing their response to Valley Pain's motion, however, the plaintiffs reached a settlement with Dr. Selk. On the basis of that settlement, Valley Pain filed a supplement to their summary judgment motion, arguing that by settling their claims with Valley Pain's alleged ostensible agent, the plaintiffs had necessarily extinguished any derivative claims against Valley Pain. At oral argument, the plaintiffs agreed that, under Pennsylvania law, the settlement with Dr. Selk had extinguished any vicarious liability claims against Dr. Selk's principal, Valley Pain, based on Selk's negligence.*fn4

With these concessions, the plaintiffs' counsel affirmed at oral argument that the only theory of liability that the plaintiffs were pursuing against Valley Pain was to seek to hold it responsible for the allegedly negligent acts of its employees, the nurses and radiology technicians involved in Mr. McCloskey's discogram procedure. Under Pennsylvania law, an employer is vicariously liable for negligent acts of its employees that cause injury to third parties, as long as such acts were committed during the course of and within the scope of the employment. Sutherland v. Monongahela Valley Hosp., 856 A.2d 55, 625 (Pa. Super. 2004) (citing R.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa. Super. Ct. 2000)). Here, Valley Pain has not disputed that the nurses and radiology technicians involved in Mr. McCloskey's treatment were acting in the scope of their employment.

To establish negligence on the part of a Valley Pain employee, the plaintiffs must establish that the employee at issue owed a duty to the plaintiff, that the employee breached that duty, and that the breach of duty was the direct and proximate cause of the plaintiff's injury. Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070 (Pa. 2006); Griffin v. Univ. of Pittsburgh Med. Ctr., 950 A.2d 996, 999-1000 (Pa. Super. Ct. 2008).

Because the plaintiffs' claims involve medical negligence, expert testimony is required to establish the elements of duty, breach and causation, unless the issue "is so simple or the lack of skill or care is so obvious as to be within the range of experience and comprehension of even non-professional persons." Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa. 1997); see also Quinby, 907 A.2d at 1070. Pennsylvania requires expert testimony not just for medical malpractice claims against physicians, but also to claims of medical negligence against nurses and other medical professionals. See Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 591 (Pa. Super. Ct. 2002) ("In order to meet her burden of proof, Appellant was required to provide expert testimony to establish, to a reasonably degree of medical certainty, that the acts of the internists and nurses deviated from acceptable medical standards and that such deviation was a proximate cause of the harm suffered.").

Valley Pain argues that the plaintiffs have not met their burden of establishing a prima facie case of negligence on the part of its employees because the plaintiffs' expert reports do not give an opinion that such negligence occurred or that it caused harm to Mr. McCloskey. The plaintiffs have identified and produced reports for two experts, Gregory J Przybylski, M.D., a neurosurgeon, and Richard L. Rauck, M.D., an anesthesiologist and pain management specialist. Both of the reports focus primarily on the actions of Dr. Selk.*fn5

Dr. Przybylski's report states that it is his opinion that Mr. McCloskey suffered "multilevel streptococcus viridians and oralis discitis and osteomyelitis" as a result of the discogram performed by Selk. He states that the sterile field was contaminated throughout the discogram procedure and prior to Mr. McCloskey being injected and that this contamination occurred with oral bacteria rather than skin bacteria. He concludes that "the performance of the discography procedure at five ...


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