Shannon v. McNulty

Sheena Shannon (plaintiff) was a subscriber of the HealthAmerica’s Health Maintenance Organization (HMO). She telephoned HealthAmerica because she learned she was pregnant and sought an ob/gyn physician. HealthAmerica (defendant) provided Shannon with a list of six physicians she could choose from and Shannon chose Dr. McNulty (defendant). Shannon called McNulty complaining of abdominal pain and requested an appointment. Three days later, McNulty briefly examined Shannon and informed her that she just needed rest and to take a week off work. McNulty did not perform any tests to confirm a diagnosis or rule out other possibilities. A couple of days later, Shannon again telephoned McNulty complaining of worsening abdominal and back pain and other symptoms and asked him whether she could be experiencing pre-term labor. McNulty dismissed Shannon’s concern and insisted she was not in labor. Shannon called the emergency telephone number listed on the back of her card and spoke with a triage nurse from HealthAmerica. Shannon explained to the nurse her symptoms and McNulty’s recommendation. The triage nurse simply advised her to call McNulty again. Thereafter, Shannon made numerous calls to both McNulty, who was noticeably frustrated and angry with Shannon’s calls, and to HealthAmerica who merely advised that she continue to call McNulty. During the last call to HealthAmerica, Shannon was told by an in-house orthopedic physician to go to a distant hospital to be examined. While at the hospital, Shannon prematurely gave birth to a one and one-half pound baby who died two days later. Shannon brought suit against McNulty for negligence in failing to timely diagnose and treat her pre-term labor. Shannon sued HealthAmerica for negligence under both a vicarious liability theory and corporate negligence theory. Shannon alleged HealthAmerica was vicariously liable for its nursing staff’s failure to refer her to a physician or hospital for diagnosis and proper treatment. Shannon alleged HealthAmerica was corporately liable for its negligent supervision of McNulty’s care and lack of appropriate procedures when dispensing medical advice over the telephone. The trial court granted McNulty’s motion for a compulsory nonsuit. Shannon appealed.