                                  [J-6-2015]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

                SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.


RONALD GREEN AS THE EXECUTOR       :        No. 36 EAP 2014
OF THE ESTATE OF JOSEPH FUSCO,     :
                                   :        Appeal from the Judgment of the Superior
                  Appellant        :        Court entered on January 30, 2014 at No.
                                   :        2858 EDA 2012, affirming the Order of the
                                   :        Court of Common Pleas of Philadelphia
           v.                      :        County, Civil Division, entered on August
                                   :        21, 2012 at No. 4093 June Term, 2009
                                   :
PENNSYLVANIA HOSPITAL AND          :        ARGUED: March 10, 2015
CONTRIBUTORS TO PENNSYLVANIA :
HOSPITAL AND STELLA BARBER, RN :
AND SYLVIA AQUINO, RN AND LORI     :
YAKISH, RN AND KELLY A. CARR, RRT :
AND JAMES KEARNEY, MD AND          :
STEVEN A. GLASSER, MD AND JOHN :
D. SPRANDIO, JR., MD AND BORA LIM, :
MD AND EUGENE M. LUGANO, MD        :
AND ANTHONY GIORGIO                :
                                   :
                  Appellees        :


                                       OPINION


MADAME JUSTICE TODD                                   DECIDED: September 3, 2015
      In this negligence action, Ronald Green, Executor of the Estate of Joseph Fusco

(hereinafter “Appellant”), appeals the order of the Superior Court affirming the trial

court’s grant of a nonsuit in favor of Appellees Pennsylvania Hospital (the “Hospital”),

Contributors to Pennsylvania Hospital, Stella Barber, R.N., Sylvia Aquino, R.N., Lori

Yakish (formerly Lori Rhoades), R.N., Kelly A. Carr, R.R.T., James Kearney, M.D.,

Steven A. Glasser, M.D., John D. Sprandio, Jr., M.D., Bora Lim, M.D., Eugene M.
Lugano, M.D., and Anthony Giorgio.          For the reasons that follow, we reverse and

remand for further proceedings.

                          I. Factual and Procedural Background

         On December 30, 2008, Joseph Fusco (hereinafter “Decedent”) arrived at the

emergency department of the Hospital, complaining of shortness of breath, rapid

breathing, and wheezing. He was admitted to the Intensive Care Unit (“ICU”) and given

medication, which failed to alleviate his symptoms. As a result, Decedent, who suffered

from a number of pre-existing conditions, including chronic obstructive pulmonary

disease, was intubated and placed on a ventilator in order to assist with his breathing.

Decedent remained on a ventilator in critical condition for ten days.

         On January 9, 2009, in an attempt to wean Decedent from the ventilator, a

physician at the Hospital performed a tracheotomy, a surgical procedure in which an

opening is made through the neck into the trachea,1 and a tube is inserted through the

opening in order to provide an airway. Because Decedent was going to be placed back

on a ventilator after the tracheotomy, a tracheotomy cuff, which is an inflatable device

that secures the tracheotomy tube to the sides of a patient’s trachea, was placed

around the tube and inflated.

         On January 10, 2009, Decedent was seen by his pulmonary physician, Dr.

Eugene Lugano, who documented a plan to wean Decedent off the ventilator and use a

“trach collar,” which would allow Decedent to receive oxygen through an aerosol mask

instead of a mechanical ventilator.          The plan was implemented that day at

approximately 12:30 p.m., at which time the tracheotomy cuff was deflated.           At

approximately 4:30 p.m. that afternoon, Nurse Lori Yakish noticed a moderate to large



1
    The trachea is also referred to as the windpipe.



                                        [J-6-2015] - 2
amount of blood coming from the site of Decedent’s tracheotomy2 and reported this to

the attending physician, Dr. John Sprandio. Dr. Sprandio advised Nurse Yakish to

monitor the situation. Approximately one-half hour later, Nurse Yakish rolled Decedent

over so she could clean his back, at which time a large amount of fresh blood began to

squirt from the tracheotomy site.

         A team of medical personnel, including anesthesiologist Dr. Stephen Glasser,

immediately responded to Decedent’s room, and determined that Decedent’s

tracheotomy tube had become blocked, depriving Decedent of an airway. Dr. Glasser

testified that, when he arrived, other medical professionals were attending to

Decedent’s tracheotomy site, and Decedent appeared stable. At approximately 5:00

p.m., Dr. Nora Malaisrie, an ear, nose, and throat (“ENT”) physician, arrived in

Decedent’s room. At this time, Dr. Glasser received another page, requiring him to

leave the room, but he asked two of the nurse anesthesiologists to remain.            Dr.

Malaisrie attempted to ascertain the location of Decedent’s blockage using a

bronchoscope. She observed clotted blood near the bottom of the tracheotomy tube,

and attempted to clear it using a saline lavage. Unable to clear the blockage, Dr.

Malaisrie inserted a tube into Decedent’s mouth and used an “ambu bag” to try and

force air through the tube into Decedent’s lungs.        When those measures failed to

remedy Decedent’s inability to breathe, Dr. Malaisrie removed the tube from Decedent’s

mouth and attempted to reinsert another tube through the existing site in Decedent’s

neck; however, the tube went into Decedent’s thorax, rather than into his trachea, as

intended.     As a result, when medical personnel began to force air through the

improperly-placed tube, the air accumulated outside of Decedent’s lungs, causing his

lungs and trachea to collapse. At this point, Dr. Glasser returned to Decedent’s room,

2
    A small amount of blood around the site of the incision post-surgery is normal.



                                        [J-6-2015] - 3
and determined that Decedent was not getting air into his lungs. Dr. Glasser instructed

that the improperly-placed tube be removed, and that Decedent again be intubated

through his mouth. Once properly intubated, Decedent began to receive air into his

lungs; however, by this time, Decedent had suffered cardiac arrest, and he was

pronounced dead at 6:36 p.m.

        Appellant, as executor of Decedent’s estate, commenced a negligence action

against the Hospital and several individual defendants, including Nurse Yakish, in June

2009.    Appellant alleged that Nurse Yakish was negligent and deviated from the

appropriate standard of care by failing to properly care for and treat Decedent following

his tracheotomy procedure; by moving Decedent too soon after his tracheotomy

procedure; and by failing to properly monitor, observe, and oversee Decedent following

his tracheotomy procedure. See Fourth Amended Complaint, at Count IV. Appellant

further alleged that the Hospital was vicariously liable, inter alia, for the negligence of

Dr. Malaisrie.3 Id. at Count XIII.

        Relevant to the instant appeal, the Hospital filed a motion in limine challenging,

inter alia, the testimony of Appellant’s expert, Nurse William K. Pierce, to the extent

Nurse Pierce intended to offer any opinion that Nurse Yakish’s negligent acts caused

Decedent’s pain, suffering, or ultimate death.4 The trial court prohibited Nurse Pierce

from offering an opinion as to whether Nurse Yakish’s actions were the cause of

3
   In his brief, Appellant asserts that medical experts did not identify Dr. Malaisrie’s
negligence as the cause of Decedent’s injuries until after the statute of limitations on
medical claims against Dr. Malaisrie had expired, which is the reason Dr. Malaisrie was
not named individually as a defendant. Appellant’s Brief at 8.
4
  As Decedent did not have any next of kin, but was in a same-sex relationship for
which Pennsylvania, at the time, did not afford legal status, the damages claim was
limited to recovery for the pain and suffering Decedent experienced during the 2 to 3
hour period preceding his death. For purposes of this opinion, we will use the term
“injuries” to describe Decedent’s pain and suffering.



                                      [J-6-2015] - 4
Decedent’s injuries, but did allow Nurse Pierce to offer an opinion as to whether certain

actions of Nurse Yakish were negligent.

       At the close of Appellant’s case, the Hospital moved for a nonsuit as to all

defendants, with the exception of Nurse Yakish.         The following day, the trial judge

granted a nonsuit as to all defendants, including Nurse Yakish. With regard to Dr.

Malaisrie, the trial court acknowledged that Appellant presented expert testimony that

Dr. Malaisrie had deviated from the standard of care, but concluded Appellant failed to

establish that Dr. Malaisrie was an ostensible agent of the Hospital, as required under

the Medical Care Availability and Reduction of Error Act, 40 P.S. §§ 1303.101-1303.910

(“MCARE Act”). Specifically, the trial court determined that Appellant failed to offer any

evidence that a reasonably prudent person in Decedent’s position would have been

justified in the belief that the care in question was rendered by the Hospital or its agents.

Id. § 1303.516(a)(1).    The trial court highlighted that Appellant did not present any

witnesses to testify regarding “how the agency structure of the hospital was set up

regarding ENT physicians . . . in the Hospital’s facilities,” nor did Appellant present the

testimony of Appellant’s brother “as to how Dr. Malaisrie presented herself as to

agency, or whether a reasonable patient would believe she was an agent of the

hospital.” Trial Court Opinion, 4/15/13, at 3-4. With regard to Nurse Yakish, the trial

court opined that Appellant “failed to demonstrate that any action taken by or

attributable to Nurse Yakish was the cause of Decedent’s death.” Id. at 5.

       Appellant’s subsequent motion to remove the nonsuit and his request for other

post-trial relief were denied. On appeal to the Superior Court, Appellant argued that the

trial court erred in removing the question of the ostensible agency of Dr. Malaisrie from

the jury, and, additionally, erred in precluding Nurse Pierce from offering an opinion as




                                       [J-6-2015] - 5
to whether Nurse Yakish’s negligence was a medical cause of Decedent’s death. A

split three-judge panel of the Superior Court affirmed the trial court’s order.

       Judge Platt, writing the lead opinion, agreed with the trial court’s conclusion that

Appellant failed to present any evidence which would suggest that a “reasonably

prudent person in Decedent’s position would have been justified in believing that Dr.

Malaisrie’s care was being rendered by the hospital or its agents.”               Green v.

Pennsylvania Hosp., 2858 EDA 2012, unpublished memorandum at 7 (Pa. Super. filed

Jan. 30, 2014). Specifically, Judge Platt concluded that Appellant failed to offer any

evidence “as to the extent of Dr. Malaisrie’s duties or responsibilities at Pennsylvania

Hospital, let alone the manner in which she presented herself to Decedent while treating

him.” Id. at 8-9. Acknowledging Appellant’s argument that Decedent sought care from

the Hospital, rather than from a specific physician, Judge Platt noted that Appellant “fails

to acknowledge that, throughout the litigation, the Hospital denied that Dr. Malaisrie was

its agent, nor did Appellant present evidence to establish the extent of Dr. Malaisrie’s

relationship with Pennsylvania Hospital.” Id. at 9.

       Judge Platt further rejected Appellant’s contention that the trial court erred in

precluding Nurse Pierce from testifying that Nurse Yakish’s actions were a cause of

Decedent’s injuries, noting that the case on which Appellant relied in support of his

argument, Freed v. Geisinger Med. Ctr., 971 A.2d 1202 (Pa. 2009), gives a trial court

discretion to allow a nurse to testify as an expert on matters other than the standard of

care if the court determines that the expert is otherwise competent to do so, but does

not require it do to so. Judge Platt further observed that the trial court specifically found

that Nurse Pierce could not testify “outside the area of his expertise,” a determination

Appellant failed to acknowledge.      Green, 2858 EDA 2012, at 15.         President Judge

Gantman concurred in the result.




                                       [J-6-2015] - 6
        Judge Shogan also concurred in the result with respect to the proffered testimony

of Nurse Pierce.     However, regarding the ostensible agency issue, Judge Shogan

dissented, concluding that the facts, when viewed in the light most favorable to

Appellant, indicated that Dr. Malaisrie was involved in Decedent’s care as part of the

emergency team that responded to the Hospital’s page when blood began to discharge

from Decedent’s tracheotomy site, and that, because Dr. Malaisrie attended Decedent

at the request of the Hospital, not Decedent himself, the question of whether a prudent

person in Decedent’s position would have been justified in the belief that the care he

received was rendered by the Hospital or its agents should have been decided by the

jury.

        Appellant filed a petition for allowance of appeal with this Court, and we granted

review to consider: (1) whether the question of the Hospital’s liability for the negligence

of its treating physician, Dr. Malaisrie, under a theory of ostensible agency should have

been presented to the jury; and (2) whether this Court’s decision in Freed, supra, allows

a nurse to provide expert testimony as to causation on a claim against another nurse, in

an action where the plaintiff raised additional claims against doctors based on their

alleged acts of negligence.

                                       II. Analysis

                    A. Vicarious Liability for a Physician’s Negligence

        In order to state a cause of action for negligence, a plaintiff must allege facts

which prove the breach of a legally recognized duty or obligation of the defendant that is

causally related to actual damages suffered by the plaintiff. Scampone v. Highland Park

Care Ctr., LLC., 57 A.3d 582, 596 (Pa. 2012). To prove the elements of a duty and the

breach thereof, a plaintiff must show that the defendant’s act or omission fell below the

standard of care, and, therefore, increased the risk of harm to the plaintiff. Id. The




                                      [J-6-2015] - 7
plaintiff then must demonstrate “the causal connection between the breach of a duty of

care and the harm alleged: that the increased risk was a substantial factor in bringing

about the resultant harm.” Id.

       A plaintiff may pursue a negligence action against a defendant on the theory of

direct liability or vicarious liability. Under a direct liability theory, a plaintiff “seeks to hold

the defendant responsible for harm the defendant caused by the breach of a duty owing

directly to the plaintiff.” Id. at 597. Vicarious liability, on the other hand,

               is a policy-based allocation of risk. Crowell v. City of
               Philadelphia, 531 Pa. 400, 613 A.2d 1178, 1181 (1992).
               “Vicarious liability, sometimes referred to as imputed
               negligence, means in its simplest form that, by reason of
               some relation existing between A and B, the negligence of A
               is to be charged against B although B has played no part in
               it, has done nothing whatever to aid or encourage it, or
               indeed has done all that he possibly can to prevent it.” Id.
               (quoting Prosser and Keeton on Torts § 69, at 499 (5th Ed.
               1984)). Once the requisite relationship (i.e., employment,
               agency) is demonstrated, “the innocent victim has recourse
               against the principal,” even if “the ultimately responsible
               agent is unavailable or lacks the ability to pay.” Mamalis v.
               Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380, 1383
               (1989); accord Crowell, 613 A.2d at 1182 (vicarious liability
               is policy response to “specific need” of how to fully
               compensate victim).
Id.

       At one time, hospitals enjoyed absolute immunity from tort liability. The basis of

that immunity was the perception that hospitals functioned as charitable organizations.

Thompson v. Nason Hosp., 591 A.2d 703, 706 (Pa. 1991).                     As we recognized in

Thompson, however, “hospitals have evolved into highly sophisticated corporations

operating primarily on a fee-for-service basis.         The corporate hospital of today has

assumed the role of a comprehensive health center with responsibility for arranging and

coordinating the total health care of its patients.” Id. (footnote omitted).


                                          [J-6-2015] - 8
      Thus, in 1965, this Court abolished the doctrine of charitable immunity for

hospitals in Flagiello v. Pennsylvania Hosp., 208 A.2d 193 (Pa. 1965). Thereafter,

             [t]he concept of hospital liability in Pennsylvania further
             evolved in Tonsic v. Wagner, [329 A.2d 497 (Pa. 1974),]
             when we held that the hospital was not as a matter of law
             immunized from any liability for negligence of its personnel
             during an operation, thereby recognizing respondeat
             superior as a basis for hospital liability. Subsequently,
             Superior Court in Capan v. Divine Providence Hospital, [430
             A.2d 647 (Pa. Super. 1980),] adopted the theory of
             ostensible agency, when it held that the trial court erred in
             failing to instruct the jury that it could find the hospital
             vicariously liable for negligence of a physician, despite the
             fact the physician was an independent contractor. See also
             Simmons v. St. Clair [Memorial] Hospital, [481 A.2d 870 (Pa.
             Super. 1984)].
Thompson, 591 A.2d at 707. We also went on to recognize that a hospital could be

held liable under the doctrine of corporate negligence, if the hospital fails to uphold the

proper standard of care owed to a patient. Id. at 707.

      The ostensible agency theory adopted in Capan, supra, is based on Section 429

of the Restatement (Second) of Torts, which provides:

             One who employs an independent contractor to perform
             services for another which are accepted in the reasonable
             belief that the services are being rendered by the employer
             or by his servants, is subject to liability for physical harm
             caused by the negligence of the contractor in supplying such
             services, to the same extent as though the employer were
             supplying them himself or by his servants.
Restatement (Second) of Torts § 429.      Under the theory of ostensible agency, a

hospital could be held liable for the negligence of an independent contractor physician

where (1) the patient looked to the institution, rather than the individual physician, for

care, or (2) the hospital “held out” the physician as its employee. Capan, 430 A.2d at

650; Simmons, 481 A.2d at 875.


                                      [J-6-2015] - 9
       In 2002, the Pennsylvania legislature enacted the MCARE Act, codifying the

vicarious liability of hospitals under the doctrine of ostensible agency:

              (a) Vicarious liability.−A hospital may be held vicariously
              liable for the acts of another health care provider through
              principles of ostensible agency only if the evidence shows
              that:

                (1) a reasonably prudent person in the patient’s position
              would be justified in the belief that the care in question was
              being rendered by the hospital or its agents; or

                (2) the care in question was advertised or otherwise
              represented to the patient as care being rendered by the
              hospital or its agents.

              (b) Staff privileges.−Evidence that a physician holds staff
              privileges at a hospital shall be insufficient to establish
              vicarious liability through principles of ostensible agency
              unless the claimant meets the requirements of subsection
              (a)(1) or (2).

40 P.S. § 1303.516.
       As noted above, in the instant case, the trial court granted a compulsory nonsuit

based on its finding that Appellant failed to establish that Dr. Malaisrie was the

ostensible agent of the Hospital because he did not demonstrate under Section

1303.516(a)(1) that a reasonably prudent person in Decedent’s position would have

been justified in the belief that the care in question was rendered by the Hospital or its

agents.5 A trial court may enter a compulsory nonsuit on any and all causes of action:

              if, at the close of the plaintiff’s case against all defendants on
              liability, the court finds that the plaintiff has failed to establish
              a right to relief. Absent such finding, the trial court shall
              deny the application for a nonsuit. On appeal, entry of a
5
  The parties do not dispute that subsection (a)(1) of Section 1303.516 is the only
subsection at issue in the case.



                                        [J-6-2015] - 10
              compulsory nonsuit is affirmed only if no liability exists based
              on the relevant facts and circumstances, with appellant
              receiving “the benefit of every reasonable inference and
              resolving all evidentiary conflicts in [appellant’s] favor.” The
              compulsory nonsuit is otherwise properly removed and the
              matter remanded for a new trial.
Scampone, 57 A.3d at 595-96 (citing, inter alia, Pa.R.C.P. No. 230.1).

       On appeal, Appellant maintains that the question of what a reasonably prudent

person in Decedent’s position would have been justified in believing is best determined

by a jury.   Further, relying on Capan and Simmons, wherein the Superior Court

determined that the evidence presented was sufficient to raise a jury question as to

whether the doctors were ostensible agents of the respective hospitals, Appellant offers

the following facts as evidence which would support a jury finding that a reasonably

prudent person in Decedent’s position would have been justified in believing that Dr.

Malaisrie’s care was being rendered by the hospital or its agents: (1) Dr. Malaisrie first

became involved in treating Decedent as part of an emergency response team at the

hospital; (2) Dr. Malaisrie had no prior doctor/patient relationship with Decedent; and (3)

Dr. Malaisrie rendered emergency treatment to Decedent at the request of the hospital,

and not at the request of Decedent or Decedent’s family. Appellant’s Brief at 18-19.

       The Hospital responds that the “facts” now offered by Appellant are “new” in that

they were not established at trial, Appellees’ Brief at 17-18, and, to the extent Appellant

relies on statements made during Appellant’s counsel’s opening statement, the Hospital

avers that statements by counsel are not evidence. According to the Hospital, the

totality of evidence established at trial relevant to the issue of whether Dr. Malaisrie was

an ostensible agent of the Hospital was: (1) after Nurse Yakish observed increased

bleeding from Decedent’s tracheotomy site, “she paged anesthesia”; (2) “ENT was also

contacted”; (3) Dr. Glasser, the anesthesiologist, arrived first; (4) Dr. Malaisrie, the ENT

physician, arrived approximately ten minutes after Dr. Glasser; and (5) Dr. Glasser


                                      [J-6-2015] - 11
testified at trial that he was an independent contractor, not an agent of the hospital. Id.

at 19-20.    Additionally, the Hospital asserts: “The patient had been ‘awake and

cooperative’, and remained awake when Dr. Glasser arrived, and when Dr. Malaisrie

arrived. The patient was ‘stable’ and continued to be conscious until ‘sometime in the

middle’ of the subsequent procedure.” Id. at 20 (record citations omitted). Based on

this summary of the evidence, the Hospital contends that Appellant failed to offer any

evidence upon which a jury could conclude that a reasonably prudent person in

Decedent’s position would be justified in the belief that Dr. Malaisrie rendered care as

the Hospital’s agent.

      The Hospital further maintains that the cases upon which Appellant relies,

including Capan and Simmons, do not support Appellant’s position because they are

factually distinguishable and predate the enactment of the MCARE Act. The Hospital

contends:

             Permitting a jury to impose liability on this record would
             effectively nullify the legislature’s enactment of section 516
             (and would violate the public policy concerns underlying it)
             because any hospital could potentially be subject to
             “ostensible agent” liability for any provider, based on no
             evidence other than the barest fact of emergency treatment
             by a doctor authorized to practice in the hospital - exactly
             what section 516(b) prohibits.         The ostensible agency
             “exception” would become the rule, and section 516(a)(1)
             would be rendered meaningless.
Appellees’ Brief at 28-29.6




6
 The Pennsylvania Medical Society and the Pennsylvania Defense Institute filed a joint
amicus brief, and the Hospital & Healthsystem Association of Pennsylvania filed a
separate amicus brief, in support of the Hospital. The Pennsylvania Association for
Justice filed an amicus brief in support of Appellant.



                                     [J-6-2015] - 12
      Initially, we cannot agree with the Hospital’s argument that allowing a jury to

determine whether Decedent was justified in believing that Dr. Malaisrie was acting as

an agent of the Hospital when she treated Decedent will undermine and/or obviate

Section 516 of the MCARE Act by subjecting a hospital to ostensible agent liability

“based on no evidence other than the barest fact of emergency treatment by a doctor

authorized to practice in the hospital.” Appellees’ Brief at 29. As noted above, Section

1303.516(b) provides that evidence that a physician holds staff privileges at a hospital

“shall be insufficient to establish vicarious liability through principles of ostensible

agency unless the claimant meets the requirements of subsection (a)(1) or (2).” 40 P.S.

§ 1303.516(b) (emphasis added). In order for a hospital to be held vicariously liable

under Section 1303.516(a)(1), a plaintiff must establish that “a reasonably prudent

person in the patient’s position would be justified in the belief that the care in question

was being rendered by the hospital or its agents.” 40 P.S. § 1303.516(a)(1). We fail to

see how allowing a jury to determine whether Appellant has demonstrated that a

reasonably prudent person in Decedent’s position would be justified in the belief that the

care in question was being rendered by the hospital − a basis for liability specifically

contemplated by the MCARE Act itself − undermines or obviates the Act, as the

Hospital suggests.

      Turning to the underlying question of whether a reasonably prudent person in

Decedent’s position would be justified in the belief that the care in question was being

rendered by the Hospital or its agents pursuant to 40 P.S. § 1303.516(a)(1), as noted

above, Appellant cites the Superior Court’s decisions in Capan and Simmons.              In

Capan, the decedent was admitted to the hospital via the emergency room for treatment

of a severe nosebleed. While in the hospital, the decedent developed delirium tremens

and became violent. The nursing staff summoned the doctor who was on-call to answer




                                     [J-6-2015] - 13
emergencies, and the on-call doctor administered a series of drugs to the decedent in

an effort to calm him.      After the on-call doctor left the hospital that evening, the

decedent suffered cardiac arrest and died. The decedent’s estate filed a wrongful death

and survival action against the hospital and several physicians, and the trial court, inter

alia, granted a nonsuit as to the survival action in favor of the hospital.

       On appeal, the Superior Court held that the trial court erred in failing to instruct

the jury that it could find the hospital vicariously liable for the negligence of the on-call

doctor based on ostensible agency, despite the fact that the on-call doctor was an

independent contractor. The Superior Court reasoned:

                       The conception that the hospital does not undertake
              to treat the patient, does not undertake to act through its
              doctors and nurses, but undertakes instead simply to
              procure them to act upon their own responsibility, no longer
              reflects the fact. Present-day hospitals, as their manner of
              operation plainly demonstrates, do far more than furnish
              facilities for treatment. They regularly employ on a salary
              basis a large staff of physicians, nurses and interns, as well
              as administrative and manual workers, and they charge
              patients for medical care and treatment, collecting for such
              services, if necessary, by legal action.

                     Thus, a patient today frequently enters the hospital
              seeking a wide range of hospital services rather than
              personal treatment by a particular physician. It would be
              absurd to require such a patient to be familiar with the law of
              respondeat superior and so to inquire of each person who
              treated him whether he is an employee of the hospital or an
              independent contractor. Similarly, it would be unfair to allow
              the “secret limitations” on liability contained in a doctor’s
              contract with the hospital to bind the unknowing patient.
430 A.2d at 649 (citations omitted).        The Superior Court concluded that, as the

decedent had entered the hospital through the emergency room and the on-call doctor

had treated the decedent in his capacity as house physician, not as the decedent’s



                                       [J-6-2015] - 14
personal physician, “the jury could have concluded that [the decedent] relied upon the

hospital rather than the [on-call doctor] himself for treatment. Additionally, the jury could

have found that [the hospital] held out [the on-call doctor] as its employee by providing

his services for dealing with emergencies within the hospital.” Id. at 650.

       In Simmons, the decedent was admitted to the hospital after he was taken to the

emergency room following a suicide attempt. Hospital personnel contacted Dr. Alan

Wright, the on-call psychiatrist, and Dr. Wright arranged for the decedent’s admission to

the psychiatric unit. The decedent remained in the hospital for approximately 18 days,

during which time he was treated by Dr. Wright. The decedent was readmitted to the

hospital by Dr. Wright after another suicide attempt approximately five months later and

placed in the “general observation” level of the psychiatric unit, where patients are

observed every 30 minutes. Several days after he was admitted, the decedent used

ties from hospital robes to hang himself from the plumbing fixtures in the bathroom

adjoining his assigned room. The decedent’s father filed suit against the hospital, and

at trial attempted to introduce evidence to prove that Dr. Wright was an actual or

ostensible agent of the hospital. The trial court instructed the jury that Dr. Wright was

not an employee, agent, or servant of the hospital and that the hospital was not

responsible for his actions.     The jury returned a verdict in favor of the hospital.

Following argument on post-trial motions, an en banc panel of the trial court granted a

new trial, determining, inter alia, that the trial court erred in withdrawing the question of

Dr. Wright’s agency from the jury. The hospital appealed.

       The Superior Court affirmed, concluding “there was evidence of record from

which the jury may have determined that Dr. Wright was either an actual or ostensible

agent” of the hospital. 481 A.2d at 873. Citing Capan, the Superior Court noted:

              Decedent herein was first admitted to [the hospital] through
              the emergency room and decedent first came in contact with


                                      [J-6-2015] - 15
                 Dr. Wright at that time because he was the “on call”
                 emergency physician. Decedent’s parents were told that Dr.
                 Wright was the head of the psychiatry department at the
                 hospital and that he was “qualified”. Dr. Wright was the
                 admitting physician when decedent entered the hospital the
                 second time. Under these circumstances, we find that the
                 jury could have concluded that decedent looked to the
                 hospital for care and that the hospital “held out” the doctor as
                 its employee. Thus, we find that the court en banc properly
                 determined that it was error to withdraw the issue of
                 ostensible agency from the jury.
Id. at 874-75.

       The high courts of several of our sister states have taken a similar approach. For

example, in Jackson v. Power, 743 P.2d 1376 (Ak. 1987), the Alaska Supreme Court

held that a hospital has a non-delegable duty to provide non-negligent emergency care

physicians on a 24-hour basis, and cannot “shield itself from liability by claiming it is not

responsible for the results of negligently performed health care when the law imposes a

duty on the hospital to provide that health care.”         Id. at 1385. The court limited its

holding “to those situations where a patient comes to the hospital, as an institution,

seeking emergency room services and is treated by a physician provided by the

hospital,” and declined to extend its holding “to situations where the patient is treated by

his or her own doctor in an emergency room provided for the convenience of the doctor.

Such situations are beyond the scope of the duty assumed by an acute care hospital.”

Id.

       In Gatlin v. Methodist Med. Ctr. Inc., 772 So. 2d 1023 (Miss. 2000), the

Mississippi Supreme Court reversed the trial court’s directed verdict in favor of the

hospital, holding that the question of whether the hospital was vicariously liable for the

negligence of an anesthesiologist, who failed to make sure there was sufficient blood

available for surgery on a patient who arrived at the hospital’s emergency room with

several gunshot wounds, was for the jury. In doing so, the Court emphasized that the


                                         [J-6-2015] - 16
appropriate focus in determining whether a hospital may be held vicariously liable for

the negligence of an independent contractor physician is the relationship between the

patient and the health care provider, not the relationship between the hospital and its

physicians:

              Where a hospital holds itself out to the public as providing a
              given service, in this instance, emergency services, and
              where the hospital enters into a contractual arrangement
              with one or more physicians to direct and provide the
              service, and where the patient engages the services of the
              hospital without regard to the identity of a particular
              physician and where as a matter of fact the patient is relying
              upon the hospital to deliver the desired health care and
              treatment, the doctrine of respondeat superior applies and
              the hospital is vicariously liable for damages proximately
              resulting from the neglect, if any, of such physicians. By way
              of contrast and distinction, where a patient engages the
              services of a particular physician who then admits the patient
              to a hospital where the physician is on staff, the hospital is
              not vicariously liable for the neglect or defaults of the
              physician.
772 So. 2d at 1027 (quoting Hardy v. Brantly, 471 So. 2d 358, 369 (Miss. 1985)). The

Gatlin Court observed that, although there may be exceptions, a patient’s non-selection

of his physician is often the rule in the case of anesthesiologists, radiologists, and

emergency room physicians. 772 So. 2d. at 1028; see also Paintsville Hosp. Co. v.

Rose, 683 S.W.2d 255, 256-57 (Ky. 1985) (noting expansion of ostensible agency

theory from anesthesiologists to other physicians who are not employed by the hospital

but are furnished through the institutional process, such as pathologists, radiologists,

and emergency room physicians).

      In Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312 (S.C. 2000), the South

Carolina Supreme Court, adopting Section 429 of the Restatement (Second) of Torts,

held “a hospital owes a nondelegable duty to render competent service to its emergency



                                     [J-6-2015] - 17
room patients.”      Id. at 322.   Although the Tuomey case involved emergency room

physicians, the court did not limit its holding to the emergency room setting, but instead

restricted it:

                 to those situations in which a patient seeks services at the
                 hospital as an institution, and is treated by a physician who
                 reasonably appears to be a hospital employee. Our holding
                 does not extend to situations in which the patient is treated
                 in an emergency room by the patient’s own physician after
                 arranging to meet the physician there. Nor does our holding
                 encompass situations in which a patient is admitted to a
                 hospital by a private, independent physician whose only
                 connection to a particular hospital is that he or she has staff
                 privileges to admit patients to the hospital. Such patients
                 could not reasonably believe his or her physician is a
                 hospital employee.
Id. at 323.

        We recognize, as the Hospital points out, that the Superior Court decisions in

both Capan and Simmons predate the enactment of the MCARE Act. However, the

language of the MCARE Act specifically provides that “[a] hospital may be held

vicariously liable for the acts of another health care provider through principles of

ostensible agency.”       40 P.S. § 1303.516(a) (emphasis added).          In our view, the

requirement for establishing ostensible agency under Section 1303.516(a)(1) − where

the evidence must show that a reasonably prudent person in the patient’s position

would be justified in the belief that the care in question was being rendered by the

hospital or its agents − is substantially the same as the requirement for establishing

ostensible agency under Section 429 of the Restatement (Second) of Torts − where the

recipient of services must demonstrate a reasonable belief that the services were

rendered by the employer or by his servants. Accordingly, Capan, Simmons, and the

cases from our sister states are instructive on the underlying question of whether, and

under what circumstances, a reasonably prudent person in Decedent’s position would


                                        [J-6-2015] - 18
be justified in believing the care in question was being rendered by the Hospital or its

agents.

       Guided by these cases, and based on our review of the record, we conclude

there was sufficient evidence to create a jury question concerning whether a reasonably

prudent person in Decedent’s position would be justified in the belief that Dr. Malaisrie

was acting as the Hospital’s agent when she rendered care to Decedent.                 It is

undisputed that Decedent first entered the Hospital through the emergency room, and

ultimately was admitted to the ICU. The Hospital does not dispute that, after Nurse

Yakish observed blood “squirting” from Decedent’s tracheotomy site, anesthesiology

and ENT services were paged. See N.T., 6/5/12, at 60 (Dr. Salgo testifying that “the

ENT service and anesthesiology services were asked to help. Anesthesiology showed

up and so did ENT after anesthesiology.”); N.T., 6/6/12, at 7 (Dr. Glasser testifying that

at approximately 4:30 p.m. on January 10, 2009, “there was a page for anesthesia

services to come to the Intensive Care Unit. The page we get on our beeper or an

overhead page.”). Dr. Glasser testified that he remained in Decedent’s room “until the

ENT physician arrived, and whose patient it primarily was.” Id. at 11. He estimated that

Dr. Malaisrie arrived in Decedent’s room ten minutes after he did. Id. at 12.           Dr.

Glasser further testified that, shortly after Dr. Malaisrie arrived, he received another

page and left the room. Id. at 42 (“I was paged to go to the other area. I wouldn’t have

gone to the other area, but the Doctor had arrived and she was the primary service for

that patient for the tracheotomy so I did leave, yes.”). When Dr. Glasser returned

approximately 15 minutes later, he observed that Decedent was “stable,” but coughing

and “breathing on his own, possibly intermittently. They were assisting him with the

bag, but it wasn’t at all times. And he was stable at that time, but he was still having the

coughing and bleeding a little bit.” Id. at 12.




                                      [J-6-2015] - 19
      In this Court’s view, when a hospital patient experiences an acute medical

emergency, such as that experienced by Decedent in the instant case, and an attending

nurse or other medical staff issues an emergency request or page for additional help, it

is more than reasonable for the patient, who is in the throes of medical distress, to

believe that such emergency care is being rendered by the hospital or its agents.

Accordingly, we hold that the trial court’s grant of a nonsuit under Section 1303.516(a)

was erroneous in the instant case, and that the question of whether a reasonably

prudent person in Decedent’s position would be justified in his belief that the care

rendered by Dr. Malaisrie was rendered by her as an agent of the Hospital should have

proceeded to the jury.   We, therefore, reverse the Superior Court’s decision affirming

the trial court’s grant of a nonsuit in favor of the Hospital on this issue, and remand the

matter for further proceedings.

                           B. Preclusion of Expert Testimony

      In his second issue, Appellant concedes that the trial court’s entry of a nonsuit in

favor of Nurse Yakish based on a lack of causation evidence tying Nurse Yakish’s

alleged negligence to Decedent’s injuries was “undeniably correct,” but contends that

the absence of such evidence was the result of the trial court erroneously granting the

Hospital’s motion in limine precluding the causation testimony of Appellant’s expert

witness, Nurse Pierce.    Appellant’s Brief at 25-26.     The trial court permitted Nurse

Pierce to offer testimony regarding the quality of care offered by the nurses that treated

Decedent, but prohibited Nurse Pierce from opining as to whether Nurse Yakish’s

actions were a cause of Decedent’s injuries, reasoning:

             [B]ecause this was a medical professional liability action[]
             against a physician and Pierce did not possess an
             unrestricted physician’s license, he was properly precluded
             [from offering causation testimony] under the MCARE Act’s
             requirements under § 1303.512(b)(1). If this had been a


                                     [J-6-2015] - 20
              case, such as Freed, [supra,] involving the causation of
              bedsores and whether poor nursing was a (sic) the cause of
              the bedsores[,] Pierce would have been free [to] testify as an
              expert as to causation. However, since it involved liability
              against multiple physicians and nurses, it would have
              created an anomalous result to allow Pierce to testify as to
              causation as to the nurses, but claim he was incompetent to
              testify against the physicians for care that was in many
              places indivisible as to who was providing it. As this was the
              case, Pierce was properly allowed to testify regarding his
              expert opinion of the quality of care provided by the
              Defendant nurses but not as to causation of Decedent’s
              death.
Trial Court Opinion, 4/15/13, at 9.

       In arguing that the trial court erred in precluding Nurse Pierce from offering

causation testimony against Nurse Yakish, Appellant suggests that the trial court based

its decision on a “legally erroneous understanding of an inapplicable provision of the

MCARE statute,” specifically Section 1303.512.           Appellant’s Brief at 26.   We find

Appellant’s argument to be without merit.

       Section 512 sets forth the requisite qualifications for an expert witness testifying

in a medical malpractice action against a physician:

              (a) General rule.—No person shall be competent to offer an
              expert medical opinion in a medical professional liability
              action against a physician unless that person possesses
              sufficient education, training, knowledge and experience to
              provide credible, competent testimony and fulfills the
              additional qualifications set forth in this section as applicable.

              (b) Medical testimony.—An expert testifying on a medical
              matter, including the standard of care, risks and alternatives,
              causation and the nature and extent of the injury, must meet
              the following qualifications:

                     (1) Possess an unrestricted physician's license to
              practice medicine in any state or the District of Columbia.




                                       [J-6-2015] - 21
                   (2) Be engaged in or retired within the previous five
            years from active clinical practice or teaching.

            Provided, however, the court may waive the requirements of
            this subsection for an expert on a matter other than the
            standard of care if the court determines that the expert is
            otherwise competent to testify about medical or scientific
            issues by virtue of education, training, or experience.

            (c) Standard of care.—In addition to the requirements set
            forth in subsections (a) and (b), an expert testifying as to a
            physician's standard of care also must meet the following
            qualifications:

                   (1) Be substantially familiar with the applicable
            standard of care for the specific care at issue as of the time
            of the alleged breach of the standard of care.

                   (2) Practice in the same subspecialty as the
            defendant physician or in a subspecialty which has a
            substantially similar standard of care for the specific care at
            issue, except as provided in subsection (d) or (e).

                   (3) In the event the defendant physician is certified by
            an approved board, be board certified by the same or a
            similar approved board, except as provided in subsection
            (e).

                                         ***
            (e) Otherwise adequate training, experience and
            knowledge.—A court may waive the same specialty and
            board certification requirements for an expert testifying as to
            a standard of care if the court determines that the expert
            possesses sufficient training, experience and knowledge to
            provide the testimony as a result of active involvement in or
            full-time teaching of medicine in the applicable subspecialty
            or a related field of medicine within the previous five-year
            time period.
40 P.S. § 1303.512.

      Appellant maintains that the MCARE Act does not preclude Nurse Pierce from

offering causation testimony against Nurse Yakish, and, in support of his argument,



                                   [J-6-2015] - 22
cites a portion of a footnote in this Court’s decision in Freed.                  Therein, we

acknowledged that our holding that the Professional Nursing Law did not prohibit an

otherwise competent and properly qualified nurse from giving expert testimony

regarding medical causation based on substandard nursing procedures might have

limited impact in light of the legislature’s enactment of the MCARE Act, but noted:

               there are certainly situations in which it is questionable
               whether the MCARE Act will apply and thus we conclude our
               decision today retains its vitality. For example, the MCARE
               Act, by its terms, appears to apply only to medical
               professional liability actions against physicians, and not to
               other professional liability actions, or to actions against non-
               physician health care providers.
Freed, 971 A.2d at 1212 n.8 (emphasis added).

         Regardless of the requirements for expert witnesses in medical malpractice

actions against physicians under the MCARE Act, or the language of Freed, the

MCARE Act does not mandate the admission of a given expert’s testimony. Rather,

decisions regarding the admission of expert testimony are left to the trial court’s

discretion, and will not be disturbed absent an abuse of discretion. Commonwealth v.

Towles, 106 A.3d 591, 605 (Pa. 2014). Further, and critically herein, a trial court may

exclude expert opinion testimony if the probative value of the testimony is outweighed

by the potential to cause confusion or prejudice. Houdeshell v. Rice, 939 A.2d 981, 986

(Pa. Super. 2007); Pa.R.E. 403 (court may exclude relevant evidence if its probative

value is outweighed by a danger, inter alia, of confusing the issues or misleading the

jury).

         As the trial court noted, the instant case involved negligence claims against both

nurses and physicians. The trial court determined that allowing Nurse Pierce to offer

causation testimony as to Nurse Yakish, but not the physicians (which he was not

qualified to do), might confuse the jury, and the Superior Court affirmed the trial court’s


                                       [J-6-2015] - 23
ruling, rejecting Appellant’s suggestion that, pursuant to Freed, supra, the trial court was

required to allow Nurse Pierce to offer expert causation testimony. Appellant fails to

argue, let alone establish, that the trial court abused its discretion in this regard.

Indeed, in his expert report, Nurse Pierce opined that Nurse Yakish “failed to adequately

assess/follow up bleeding from [Decedent’s tracheotomy],” and that “[t]he team

attending to [Decedent] during his crisis failed to react promptly to the need for the

[tracheotomy] cuff to be inflated and failed to adequately assess airway placement. As

a result of this negligence, Mr. Fusco suffered a cardiopulmonary arrest and died.”

Expert Report of William K. Pierce, 6/1/11, at 5 (R.R. at 303a). Thus, based on the

expert report, the proffered expert causation testimony of Nurse Pierce was based on a

course of conduct by nurses and physicians, and, as the trial court observed, had the

potential to confuse the jury. Accordingly, we hold that Appellant is not entitled to relief

on this issue.

                                       III. Conclusion

       For the reasons set forth above, we affirm the Superior Court’s decision to the

extent it affirmed the trial court’s grant of a nonsuit in favor of Nurse Yakish. However,

we reverse the Superior Court’s order affirming the trial court’s grant of a nonsuit in

favor of the Hospital, and remand the matter to the Superior Court, for remand to the

trial court, for further proceedings consistent with this opinion.

       Order affirmed in part and reversed in part. Case remanded.

       Mr. Chief Justice Saylor, Messrs. Justice Eakin, Baer and Stevens join the

opinion.




                                       [J-6-2015] - 24
