## Facts

- Chardella Boyd and her husband enrolled in the Health Maintenance Organization of Pennsylvania (HMO) through an employer plan.
- The HMO provided a directory/brochure of participating physicians and restricted members (except in emergencies) to using listed primary care physicians and the referral system for specialists.
- Boyd selected participating primary care physicians, Dr. David Rosenthal and Dr. Perry Dornstein, from the HMO’s directory.
- After reporting a breast lump, Rosenthal ordered a mammogram, recommended a biopsy, and referred Boyd to Dr. Erwin Cohen, a participating surgeon.
- Cohen performed a biopsy at Albert Einstein Medical Center and allegedly perforated Boyd’s chest wall, causing a left hemothorax and hospitalization.
- After discharge, Boyd repeatedly reported symptoms including chest wall pain, belching, hiccups, and fatigue to Rosenthal and Dornstein.
- Boyd later presented to the hospital emergency room after contacting her primary physicians and being advised to go there to be examined; she was evaluated, discharged, and later died the same day from a myocardial infarction.
- Boyd’s estate and family sued, alleging medical negligence and seeking to hold the HMO liable, including vicariously for participating physicians’ negligence under an ostensible-agency theory.
- The trial court granted summary judgment for the HMO on the ground that no genuine issue of material fact supported agency/vicarious liability; the plaintiff appealed as to the HMO.

## Issues

1. Whether the record presented a genuine issue of material fact that participating physicians were the HMO’s ostensible agents, permitting vicarious liability for alleged malpractice.
2. Whether the HMO’s representations and plan structure could support findings that the HMO “held out” physicians as its agents and that Boyd justifiably relied on that appearance.

## Decision

- The Superior Court reversed the grant of summary judgment in favor of the HMO.
- The court held that a genuine issue of material fact existed as to whether participating physicians were the HMO’s ostensible agents.
- The case was remanded for further proceedings.

## Legal Principles

- Ostensible agency (apparent authority) may impose vicarious liability when:
  - the principal, by words or conduct, holds out another as its agent or permits that appearance; and
  - the injured party justifiably relies on the apparent agency in seeking or accepting services.
- Summary judgment is improper where the right to judgment is not clear and free from doubt and material factual disputes exist.
- In evaluating ostensible agency, practical realities and the entity’s presentation to consumers can matter more than contractual labels such as “independent contractor.”
- An HMO’s marketing of comprehensive care, limits on patient choice of physicians, and required referral pathways can constitute evidence of “holding out” participating physicians as the HMO’s agents.
- Reliance may be inferred from a member’s use of the HMO’s directory, compliance with mandated selection and referral mechanisms, and receipt of care within the plan’s controlled network.

## Conclusion

The court held that the HMO’s plan design and representations, together with the decedent’s use of the HMO’s required physician-selection and referral system, could allow a jury to find ostensible agency and justifiable reliance; accordingly, summary judgment for the HMO was reversed and the case was remanded.


Boyd v. Albert Einstein Med. Ctr., 547 A.2d 1229 (Pa. Super. Ct. 1988)