## Facts

- Sheena Shannon, an HMO subscriber, selected Dr. Larry P. McNulty (OB-GYN) from the HMO’s physician list during her pregnancy.
- Over about ten days, she repeatedly reported abdominal/back pain and symptoms she believed indicated pre-term labor.
- Dr. McNulty briefly examined her, advised rest, and did not order testing to confirm or rule out pre-term labor; he later dismissed her concerns during multiple calls.
- Shannon called the HMO’s emergency telephone number and spoke with triage nurses, reporting her symptoms and McNulty’s advice.
- The triage nurses repeatedly advised her to call McNulty again rather than directing her to prompt emergency evaluation.
- On a later call, an HMO-affiliated physician advised her to go to a more distant hospital.
- At the hospital, Shannon was found to be in pre-term labor; she delivered a severely premature infant who died two days later.
- The parents, individually and as co-administrators of the child’s estate, sued McNulty for negligent failure to diagnose/treat pre-term labor and sued the HMO for (1) vicarious liability for negligent telephone advice by its employees and (2) corporate negligence for inadequate supervision and deficient triage procedures/protocols.

## Issues

1. Whether plaintiffs presented sufficient evidence for a jury to consider the HMO’s vicarious liability for alleged negligence by its triage nurses and other employees providing telephone advice.
2. Whether plaintiffs presented sufficient evidence for a jury to consider the HMO’s direct corporate negligence based on alleged deficient policies/protocols and supervision relating to telephonic triage and medical decision-making.
3. Whether a compulsory nonsuit may be granted after the defendant begins presenting evidence, and, if not, whether the error required reversal.

## Decision

- The Superior Court reversed the order refusing to remove the compulsory nonsuit entered for the HMO and remanded for a new trial as to the HMO.
- The trial court erred by granting a compulsory nonsuit after the HMO had begun presenting evidence in its case-in-chief.
- The procedural error was not harmless because plaintiffs’ evidence was sufficient to establish prima facie claims against the HMO under both vicarious liability and corporate negligence theories.
- The court held that corporate negligence principles may apply to an HMO when it plays a significant role in delivering care by interjecting itself into medical decision-making, including through emergency telephone triage.

## Legal Principles

- Compulsory nonsuit procedure: a nonsuit is generally limited to the close of the plaintiff’s case-in-chief and is improper after the defendant has introduced evidence.
- Standard on nonsuit: evidence must be viewed in the light most favorable to the plaintiff; nonsuit is improper where reasonable jurors could find for the plaintiff.
- Vicarious liability: an entity may be liable for negligent acts of its employees acting within the scope of their duties, including employees providing medical triage advice.
- Undertaking liability (Restatement (Second) of Torts § 323): one who undertakes to render services necessary for another’s protection may be liable if lack of reasonable care increases the risk of harm or harm results from reliance on the undertaking.
- Corporate negligence beyond hospitals: when an HMO goes beyond financing care and undertakes functions affecting patient care decisions (e.g., emergency triage services), it must perform those functions in a medically reasonable manner and may be directly liable for deficient policies, procedures, or oversight that cause injury.

## Conclusion

The court reinstated the claims against the HMO and ordered a new trial, holding that the trial court improperly granted a nonsuit after the defense presented evidence and that the plaintiffs had presented enough evidence for a jury to consider both vicarious liability for triage staff and direct corporate negligence based on the HMO’s role in telephonic medical decision-making and related oversight.


Shannon v. McNulty, 718 A.2d 828 (Pa. Super. Ct. 1998)