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P and his wife were participants in D. P became eligible for participation in a group plan provided by HMO through his employer. The decedent and P were provided with a directory and benefits brochure that listed the participating physicians. Restricted to selecting a physician from this list, decedent chose Doctor David Rosenthal and Doctor Perry Dornstein as her primary care physicians. Decedent contacted Doctor David Rosenthal regarding a lump in her breast. Doctor Rosenthal ordered a mammogram. He recommended that decedent undergo a biopsy and referred her to Doctor Erwin Cohen for that purpose. Doctor Cohen is also a participating HMO physician. The referral to a specialist in this case was made in accordance with the terms and conditions of HMO's subscription agreement. Doctor Cohen performed a biopsy and during the procedure, perforated decedent's chest wall with the biopsy needle, causing decedent to sustain a left hemothorax. Decedent was hospitalized for treatment of the hemothorax at Albert Einstein Hospital for two days. In the weeks following decedent complained to her primary care physicians, Doctor David Rosenthal and Doctor Perry Dornstein, of pain in her chest wall, belching, hiccoughs, and fatigue. On August 19, 1982, decedent awoke with pain in the middle of her chest. P contacted her primary care physicians, Doctors Rosenthal and Dornstein, and was advised to take decedent to Albert Einstein hospital where she would be examined by Doctor Rosenthal. Upon arrival decedent related symptoms of chest wall pain, vomiting, and stomach and back discomfort. Doctor Rosenthal diagnosed Tietz's syndrome. Decedent underwent x-rays, EKG, and cardiac ioenzyme tests. She was then sent home and told to rest. She continued to experience chest pain, vomiting, and belching. Doctors Rosenthal and Dornstein prescribed by phone, without further examination, Talwin, a pain medication. At 5:30 that afternoon decedent was discovered dead in her bathroom by her husband, having expired as a result of a myocardial infarction. P's complaint states that the HMO advertised that its physicians and medical care providers were competent and that they had been evaluated for periods of up to six months prior to being selected to participate in the HMO program as a medical provider. P claimes that decedent and he relied on these representations in choosing their primary care physicians. The complaint then avers that HMO was negligent in failing to 'qualify or oversee its physicians and hospital who acted as its agents, servants, or employees in providing medical care to the decedent nor did HMO of Pa. require its physicians, surgeons, and hospitals to provide adequate evidence of skill, training, and competence in medicine and it thereby failed to furnish the decedent with competent, qualified medical care as warranted.' P's theory was primarily one of vicarious liability under the ostensible agency theory. The trial court found that P had failed to establish either of the two factors on which the theory of ostensible agency, as applied to hospitals is based. D got the summary judgment and P appealed.

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