Shannon v. Mcnulty

718 A.2d 828 (1998)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P was a subscriber of the HealthAmerica HMO and they gave her a list of six doctors from which she could select an OB/GYN. She chose D from the list. P's HealthAmerica membership card instructed her to contact either D or HealthAmerica in the event she had any medical questions. The HealthAmerica emergency phone number was manned by registered nurses. It was confusing trying to figure out when to call D and when to call HealthAmerica. P saw D monthly but also called HealthAmerica for advice and to schedule appointments with their in-house doctors. She called D on October 2, 1992, with complaints of abdominal pain. D saw her on October 5, 1992, and examined her for five minutes. P was told she had a fibroid uterus and was prescribed rest. P took her off of work for one week. D did no testing to confirm his diagnosis and did not advise her of the symptoms of pre-term labor. P called D twice again 5 and 6 days later with abdominal pain, back pain, constipation, and being unable to sleep. P queried D about pre-term labor because her symptoms were similar to those described in a reference book she had on labor. Her pains were irregular and about ten minutes apart, but she had never been in labor so she did not know what it felt like. D said she was not in labor. The October 9th call and D became impatient with her. On October 10th, she called HealthAmerica's emergency phone line and told them about her severe irregular abdominal pain, back pain, that her pain was worse at night, that she thought she may be in pre-term labor, and about her prior calls to D. She was told to call D again. P did not because she did not feel there was anything new she could tell him to get him to pay attention to her condition. P called HealthAmerica again on October 11, 1992, said her symptoms were getting worse and D was not responding. The nurse told her to call D. When she did D was again short with her and angry and insisted that she was not in pre-term labor. On October 12, 1992, she again called the HealthAmerica phone service and told the nurse about her symptoms, severe back pain and back spasms, legs going numb, more regular abdominal pain, and D was not responding to her complaints. HealthAmerica's in-house orthopedic physicians spoke with her on the phone and directed her to go to West Penn Hospital to get her back examined. At West Penn, she was processed and taken to the obstetrics wing as a formality because she was over five (5) months pregnant. She delivered a one and one-half pound baby that night. He survived only two days and then died due to his severe prematurity. Ps sued Ds for malpractice. Ps' expert, Stanley M. Warner, M.D., testified he had experience in a setting where patients would call triage nurses. He opined that HealthAmerica deviated from the standard of care following the phone calls to the triage line on October 10, 11, and 12, 1992, by not immediately referring P to a physician or hospital for a cervical exam and fetal stress test. If D had taken those precautions it would have led to her labor being detected and increased the baby's chance of survival. P did not receive appropriate advice, and further, if HealthAmerica's triage nurses intended for the referrals back to D to be their solution, they had a duty to follow up P's calls by calling D to insure P was actually receiving the proper care from him. The trial court concluded that Ps failed to present sufficient evidence to establish negligence on the part of HealthAmerica under either a corporate or vicarious liability theory. As to HealthAmerica, the court stated there was no discussion of how HealthAmerica selected participating physicians or the criteria used in monitoring the physicians' performance. Ps produced no evidence regarding the formulation, adoption, or enforcement of rules or policies by HealthAmerica in carrying out its duty to provide adequate care to its subscribers. Without this evidence Ps failed to meet their burden of establishing the necessary elements to maintain a cause of action for corporate negligence, thereby justifying the granting of a compulsory nonsuit. P appealed.