Opinion
Civil Action No. 01-CV-5429.
April 28, 2004
MEMORANDUM
Presently before the Court is Defendant's Motion for Summary Judgment (Dkt. No. 13). For the reasons stated below, Defendant's Motion is GRANTED.
I. Factual Background and Procedural History
On July 16, 1997, Plaintiff Phyllis Acadia ("Plaintiff") was admitted to Defendant Graduate Hospital ("Graduate Hospital") for an angioplasty, a procedure involving the insertion of a catheter through a blood vessel in the groin and guided to the affected artery. Plaintiff underwent a second angioplasty on July 17, 1997. Following the procedure, Plaintiff was advised that she should not move for seven hours because the blood thinning medications she had been given placed her at an increased risk for injury. Plaintiff was further advised that if she needed to move, she should call a nurse.Roughly three hours later, Plaintiff called for a nurse to move her. Two unidentified male nurses moved Plaintiff by lifting her under the chest. This lifting caused her considerable pain and, by the time she was released from Graduate Hospital, she had black and blue marks on her chest and sides. Subsequent x-rays, however, were unremarkable.
On September 10, 1997, Plaintiff visited Dr. Marvin H. Soalt and complained of rib and chest wall pain. Doctor Soalt diagnosed Plaintiff with a chest contusion, chest bruising, a bilateral rib sprain, intercostal neuralgia and slipping rib syndrome. Plaintiff saw Doctor Soalt several more times over the next six years. Her treatment consisted of anti-inflammatory and muscle relaxing medications, together with costal-sternal joint injections, costotransverse facet injections and intercostal nerve block injections.
Prior to her visit with Doctor Soalt, Plaintiff sought treatment from her primary physician and an orthopedist. She also underwent physical therapy.
On October 25, 2001, Plaintiff filed this action seeking damages in excess of $100,000, alleging that Defendants Graduate Hospital, Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow (said names being fictitious) were negligent in failing to properly move Plaintiff and, as a result, she sustained serious injuries. On May 6, 2002, pursuant to a Notice of Liquidation filed by Graduate Hospital, and after a teleconference during which Plaintiff agreed that this case should be stayed, Judge Mary A. McLaughlin ordered the case stayed subject to further order from the court. Shortly thereafter, Judge McLaughlin transferred the case to this Court.
On January 9, 2003, the Court entered a scheduling order, requiring Plaintiff to submit expert reports by March 28, 2003. On April 22, 2003, the Court extended Plaintiff's deadline for submitting expert reports to September 26, 2003. On October 15, 2003, the Court once again extended the deadline, this time to November 25, 2003. Plaintiff, however, failed to present any expert reports.
In November 2003, then Plaintiff's counsel, Joseph O'Donnell, Esq. was seriously injured in an automobile accident. Unable to maintain his practice, a conservator was appointed and his files were assigned to various members of the Mercer County Bar. This matter was assigned to Plaintiff's current counsel, Bernard A. Campbell, Jr, Esq.
Accordingly, on December 22, 2003, Graduate Hospital moved for summary judgment, arguing that Pennsylvania law requires a plaintiff in a medical malpractice case to present expert testimony as to the appropriate standard of care and causation. Plaintiff concedes that she will not present any expert testimony on the issue of negligence, but instead wishes to rely on the doctrine of res ipsa loquitur.
On April 8, 2004, the Court entered an Order directing Plaintiff to show cause why Defendants Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow should not be dismissed from this action pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff, however, did not respond.
II. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The moving party bears the burden of showing that the record discloses no genuine issues as to any material fact and that he or she is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings to set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348 (1986). There is a genuine issue for trial "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 249. "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. Borough of W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989).
III. Analysis
Federal Rule of Civil Procedure 4(m) requires the plaintiff to serve the summons and complaint upon the defendant within 120 days after the complaint is filed. "If service of the summons and complaint is not made upon a defendant within 120 days after filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time." Fed.R.Civ.P. 4(m). On April 8, 2004 — more than three years after Plaintiff filed this suit — the Court informed Plaintiff that Defendants Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow would be subject to dismissal if she failed to show good cause for her failure to serve them within 120 days. Plaintiff offered no reasons for failing to attempt to identify or serve Defendants Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow. See McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998) (When a plaintiff's compliance with Rule 4(m) is in question, the court must first determine whether plaintiff has shown good cause for the delay.). Indeed, Plaintiff did not even respond to the Court's Order to show cause. Accordingly, Defendants Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow are dismissed without prejudice from this action pursuant to Federal Rule of Civil Procedure 4(m), leaving Graduate Hospital as the only remaining defendant in the case.
The Pennsylvania Supreme Court has held that because "the corporate hospital of today has assumed the role of a comprehensive health center," it may be subject to liability under the theories of respondeat superior, ostensible agency, and/or corporate negligence. Thompson v. Nason Hosp., 527 Pa. 330, 338-40, 591 A.2d 703, 706-707 (1991). The dismissal of Defendants Thomas Smith, R.N., Richard Roe, R.N., Tom Doe, L.P.N., and Sam Snow, however, extinguishes the claims against Graduate Hospital based on respondeat superior and ostensible agency. Absent the agent's presence in the lawsuit, derivative claims against the principal are extinguished. See Walls v. Hazleton State Gen. Hosp., 157 Pa. Commw. 170,177-78, 629 A.2d 232, 236 (1993) (citing Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380 (1989).
With respect to corporate negligence, the Pennsylvania Supreme Court opined:
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. This theory of liability creates a nondelegable duty which the hospital owes directly to the patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.Thompson, 527 Pa. at 338, 591 A.2d 707 (footnote omitted). The hospital's duties have been classified into four categories:
(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.Id. (citations omitted).
To establish a prima facie case of corporate negligence, the plaintiff must prove: (1) one or more of the aforementioned duties of care; (2) the hospital had actual or constructive notice of the defects or procedures that created the harm; and (3) that the conduct was a substantial factor in bringing about the harm. See Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149-50 (Pa.Super. 2001). The plaintiff is also required to present "expert testimony that [the] hospital's acts deviated from an accepted standard of care and that the deviation was a substantial factor in causing plaintiff's harm." Welsh v. Bulger, 548 Pa. 504, 51214, 698 A.2d 581, 585 (1997). Expert testimony is not, however, required to establish a breach of duty "'where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons.'" Id. at n. 11, 698 A.2d at 585 n. 11 (quotingChandler v. Cook, 438 Pa. 447, 451 n. 1, 265 A.2d 794, 796 n. 1 (1970)). In such case, courts apply the doctrine of res ipsa loquitur. See Toogood v. Rogal, 573 Pa. 245, 256-57, 824 A.2d 1140, 1146-47 (E.D. Pa. 2003); Hightower-Warren v. Silk, 548 Pa. 459, 463-64, 698 A.2d 52, 54-55 (1997).
As adopted by the Pennsylvania Supreme Court, res ipsa loquitur permits the inference that an injury suffered by the plaintiff was caused by the negligence of the defendant if (1) the injury-causing event is of a kind which does not ordinarily occur in the absence of someone's negligence, and (2) other responsible causes, including the conduct of the plaintiff and third parties, are sufficiently eliminated by the evidence, and (3) the inferred negligence is within the scope of the duty owed the plaintiff by the defendant. See Gilbert v. Korvette, 457 Pa. 602, 327 A.2d 94 (1975) (quoting Restatement (Second) of Torts § 328D (1965)). Res ipsa loquitur is neither a rule of procedure nor one of substantive law.Jones, 496 Pa. at 471, 437 A.2d at 1137. It is "only a shorthand expression for circumstantial proof of negligence" — a reasonable conclusion rationally deduced from the evidence presented. Id. For example, proof that a barrel of flour dropped from a warehouse window and fell on a passerby is prima facie evidence that the barrel was negligently stored. See Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863).
This is not the type of case that lends itself to the use of the doctrine of res ipsa loquitur. In the Court's judgment, it was essential to present expert testimony regarding Graduate Hospital's policies and procedures for, inter alia, supervising nurses and moving patients. Even if this were an appropriate case for res ipsa loquitur, Plaintiff in any event has failed to make out a prima facie case for corporate negligence. There is no evidence in the record that Graduate Hospital had actual or constructive knowledge of the defects or procedures that caused harm to Plaintiff. See Whittington, 768 A.2d at 1149-50 ("In order to present a prima facie case of corporate negligence, [the plaintiff is] required to introduce evidence [that] . . . [the hospital] had actual or constructive notice of the defects or procedures which created the harm. . . ."); Thompson, 527 Pa. at 340, 591 A.2d at 708 (same). Accordingly, Graduate Hospital's Motion for Summary Judgment is granted. An appropriate order will be entered.