Yesterday, my wife called me on her way back from the Pennsylvania Supreme Court’s oral arguments to tell me about Green v. Pennsylvania Hospital et al., a medical malpractice case. She swiftly assigned me two tasks: first, I had to figure out who the appellate lawyer for the plaintiff was (because they had done an excellent job), and, second, I had to write about the case.

I had a hunch about the excellent lawyer, and the docket confirmed it was indeed Howard Bashman, proprietor of the impossibly productive How Appealing. I’ve admired Bashman’s appellate work before, including referencing his briefs in my post on Lance v. Wyeth back in 2011, in which his client subsequently prevailed, 85 A.3d 434 (Pa. 2014), making good law for every consumer of prescription drugs in Pennsylvania — which of course includes virtually every Pennsylvanian at one point or another.

Bashman posted yesterday, “The oral argument seemed to go very well.” I don’t think that’s a fair description; the first-hand account I received said his argument was “fabulous.”

Here’s the underlying Superior Court panel opinion and dissent and Bashman’s petition to the Pennsylvania Supreme Court, which lay out the two issues, one relating to “ostensible agency” (i.e., when a hospital can be held liable for a doctor that isn’t formally their employee) and one relating to whether an expert witness nurse can testify that a defendant nurse ‘caused’ the patient’s harm. Both revolve around interpretations of Pennsylvania’s MCARE statute (PDF copy here), specifically 40 Pa. State. Ann. §§ 1303.516 & 1303.512.

If I just re-wrote my thoughts about the legal issues, I’d be doing a disservice to Bashman’s clear and concise petition, with which I entirely agree and which I recommend to anyone with a passing interest in these subjects. But there’s still plenty of interesting issues to raise: the case is a reminder of just how frustrating, cruel, tragic, irrational and stupid the law can be if we don’t stop to think about the purpose of the laws we have in the first place.

We begin with a stupid tragedy. Joseph Fusco was admitted to Pennsylvania Hospital for shortness of breath, rapid breathing, and wheezing, sent to the Intensive Care Unit, and intubated. A week later, to try to wean him off the ventilator, Fusco was given a tracheostomy. A nurse later noticed the tracheostomy was “squirting” blood, so an emergency team was called, including an Ear, Nose and Throat physician. The ENT negligently tried to reinsert an endo-tracheal tube through the trach, rather than through his mouth; the tube ended up in his thorax, forcing pressurized air that collapsed his trachea. Fusco asphyxiated.

Fusco died in 2009 with no next-of-kin. He was in a dedicated same-sex relationship, but same-sex marriage wasn’t legal in Pennsylvania until just last year, so his partner had no rights whatsoever to compensation: no loss of consortium claim and no wrongful death act damages. In the eyes of Pennsylvania law, their relationship was literally worthless, a cruelty that we have thankfully stopped perpetuating. Thus, the only claim in the case was the estate’s “survival” claim for the pain and suffering Fusco endured the two or three hours after the negligence began and before he died.

Then the case gets even more frustrating. Hospitals are required by federal law to keep all of their records for five years (under 42 CFR 482.24(b)(1)), but Pennsylvania arbitrarily imposes a two-year statute of limitations on malpractice claims. Within those two years, Fusco’s estate had sued Pennsylvania Hospital, but hadn’t specifically sued the ENT involved, Dr. Malaisrie. (It’s unclear to me why not. Bashman’s brief says “unfortunately, the medical experts consulting on Mr. Fusco’s case did not identify the negligence of Dr. Malaisrie as the cause of Mr. Fusco’s injuries, suffering, and death until after the statute of limitations.” Maybe they dropped the ball, or maybe the records were unclear — either way, without such expert support in advance of filing suit, there was no way for Fusco’s estate to bring their claim.)

Although Mr. Fusco never had any say in who treated him — he went to a hospital and then, as hospitals require patients to do, he accepted care from whomever they provided — Pennsylvania Hospital denied any connection to Dr. Malaisrie, as if their state-of-the-art hospital was just a temporary bazaar where itinerant doctors occasionally wandered into the Intensive Care Unit to peddle their wares to patients who happened to be choking on their own blood. This argument was, at best, a pure legal fiction, the type of “argument” that not one sane person would believe unless their cerebrum had been warped by years of legal education and experience, but that argument carried the day, and the trial court didn’t even let the jury consider whether Dr. Malaisrie was an “ostensible agent” of Pennsylvania Hospital.

To make matters worse, the trial court also precluded the Fusco Estate from calling an expert witness nurse to testify that the defendant nurse’s negligence had ‘caused’ Fusco harm. “Causation” is a funny thing in the law. The law demands far more proof of “causation” from a plaintiff in a civil lawsuit than medicine demands of a doctor or nurse trying to figure out the cause of a patient’s ailments, far more than even science demands of a medical researcher trying to figure out the cause of a disease. And so it was in the Fusco case: the trial court held that a nurse wasn’t qualified to testify about the effects of another nurse’s alleged negligence. To put it another way, we trust nurses to prevent patients from getting hurt, but we don’t trust that they understand why.


I don’t think the MCARE Act compelled this unfair result. Ostensible agency is a simple jury question over whether a “reasonably prudent person in the patient’s position” would believe the care was being rendered by the hospital or its agents, and nurses are generally qualified to give opinions about the care rendered by other nurses and the effects of that care. But we shouldn’t let the text of the MCARE Act blind us to the reality here, which is that, outside of the narrow confines of statutory interpretation and precedent, the outcome of this case makes no sense whatsoever: of course every patient in the ICU believes that every doctor who comes to them is the “agent” of the hospital, and of course a nurse should be able to testify about the effects of another nurse’s negligence. See Church of Holy Trinity v. United States, 143 US 457, 460 (1892)(“If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.”) Let’s hope that the Pennsylvania Supreme Court agrees.