Article by Kenneth H. Rafferty, II, Esq.
Pennsylvania Courts have adopted the doctrine of corporate negligence as a theory of hospital liability. Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991).
In 1978, Plaintiff Linda Thompson was injured in an accident when her car collided with a school bus. She was taken by ambulance to the emergency room at Defendant Nason Hospital in critical condition. Although she suffered multiple injuries, physicians advised against aggressive treatment until her critical medical condition improved. Unfortunately, it did not. The following morning, a general surgeon on Nason’s staff examined Thompson and found her unable to move her left foot and toes. Later, Thompson had complete paralysis on her left side. Eventually, she was discharged with paralysis to her left side.
In Thompson, the Superior Court of Pennsylvania adopted this theory of liability, which creates a non-delegable duty, which the hospital owes directly to a patient. Importantly, in a major turn in prior jurisprudence, an injured party no longer had to rely on and establish the negligence of a third party.
Specifically, the Thompson Court delineated four specific duties:
- a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
- a duty to select and retain only competent physicians;
- a duty to oversee all persons who practice medicine within its walls as to patient care; and
- a duty to formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients.
Although Thompson was decided in 1991, there is still considerable confusion as to the extent that which hospitals are liable. The Thompson held that for a hospital to be charged with negligence, it is necessary to show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm. Further, the hospital’s negligence must have been a substantial factor in bringing about the harm to the injured party. However, what constitutes actual or constructive knowledge on the part of a brick-and-mortar hospital, and what exactly is a substantial factor, are still disputed points.
However, the Thompson Court provided some guidance, as it explained that a hospital staff member or employee has a duty to recognize and report abnormalities in the treatment and condition of its patients. When there is a failure to report changes in a patient’s condition and/or to question a physician’s order that is not in accord with standard medical practice and the patient is injured as a result, the hospital will be liable for such negligence.
In sum, for a plaintiff to prevail on a corporate negligence claim, the plaintiff must plead and prove that the hospital (1) breached one of the above four categories of duties; (2) that the hospital had actual or constructive knowledge of the defect or procedures which created the harm, and (3) that the hospital’s negligence was a substantial factor in bringing about the plaintiff’s harm. See Stroud v. Abington Mem’l Hosp., 546 F. Supp. 2d 238, 245 (E.D. Pa. 2008).
However, a plaintiff must also provide a certificate of merit. Essentially, a certificate of merit is a statement from another physician agreeing that there was negligence in the care of the Plaintiff. Under the Pennsylvania Rules of Civil Procedure Rule 1042.3(a), all cases “based upon an allegation that a licensed professional deviated from an acceptable professional standard” require a certificate of merit. A certificate of merit is required as to corporate negligence claims that are premised on allegations that a hospital’s actions fell below the applicable medical or professional standard, i.e., where the claim is predicated upon facts constituting medical treatment. See Stroud, supra. Pennsylvania Rules of Civil Procedure Rule 1042.3(a) further makes it clear that the certificate of merit must be filed with the complaint or within sixty days after the filing of the complaint.
A plaintiff may also be required to present an expert witness. Unless a hospital’s negligence is obvious, an expert witness is required to establish two of the three prongs of a corporate negligence action: that the hospital deviated from the standard of care and that the deviation was a substantial factor in bringing about the harm. See 3 Summ. Pa. Jur. 2d Torts § 37:45 (2d ed.).
An expert may be required because what constitutes constructive notice is a point of contention in most cases. For constructive notice of a patient’s condition to be imposed upon a hospital, there must be a failure to receive actual notice caused by the absence of supervision, and the failure to enforce adequate rules and policies. For example, a hospital will be charged with constructive notice of a patient’s condition for the purposes of claim of corporate negligence when its nurses should have known about a patient’s adverse condition but failed to act. Id.
However, there are limits to liability. An entity that owns or manages a nursing home facility cannot be liable simply because of its ownership or management. See Hopkins v. Compass Pointe Healthcare Sys., LLC, 262 A.3d 471 (Pa. Super. Ct. 2021). However, nursing homes and affiliated entities are subject to potential direct liability for negligence where the requisite resident-entity relationship exists to establish that the entity owes the resident a duty of care. See Scampone v. Highland Park Care Ctr., LLC, 618 Pa. 363, 366, 57 A.3d 582, 584 (2012).