Professional Negligence Law Reporter

Verrastro v. Bayhospitalists, LLC, 2019 WL 1510458 (Del. Apr. 8, 2019).

The Delaware Supreme Court ruled that a medical negligence plaintiff may hold a hospital liable under a vicarious liability theory where several physicians named in the suit were dismissed on limitations grounds.

Bridget Verrastro went to Milford Memorial Hospital, experiencing breathing problems. She was later discharged with instructions to see a thoracic surgeon. She went to Kent General Hospital, where she was examined by two physician employees of Bayhealth Hospitalists, LLC, and Bayhospitalists, LLC. Despite attempted treatment, Verrastro’s condition deteriorated, and she soon died. An autopsy revealed that a mediastinal mass in Verrastro’s chest had constricted her breathing and caused her death from heart failure.

After the two-year limitations period for medical negligence actions had run, Verrastro’s daughter brought a medical malpractice suit against several doctors and Bayhealth, alleging that the doctors had failed to timely diagnose and treat the tumor and that the hospital was vicariously liable. The trial court granted the doctors’ motion to dismiss on limitations grounds. After discovery, Bayhealth moved for summary judgment, asserting it was not liable under respondeat superior because all of the plaintiff’s claims against the doctors had been dismissed. The trial court granted the motion.

Reversing, the state high court noted that generally, a viable cause of action against an employee is a condition precedent to imputing vicarious liability for negligence against an employer under respondeat superior. Citing case law, the court held that the dismissal of an agent who asserts defenses personal to him or her does not automatically preclude the principal’s vicarious liability. The court pointed out that it is the employee’s negligence, not the employee’s liability, that is imputed to the employer, and that courts must focus on employee negligence in making vicarious liability determinations. To hold otherwise would lead to situations where meritorious lawsuits against
certain parties would turn on the order in which they were named in a plaintiff’s suit.

Applying these principles here, the court remanded the case for trial against Bayhealth or other proceedings.

Plaintiff counsel: Ben T. Castle and Bruce L. Hudson, both of Wilmington, Del.