Rockwell v. Kaplan , 404 Pa. 574 ( 1961 )

Opinion by

Mb. Justice Bók,

The facts need not be repeated here, since they have been fully set forth in Mr. Justice Benjamin R. Jones’s opinion in Rockwell v. Stone, 404 Pa. 561 (1961), 173 A. 2d 48. Suffice it. to say that .plaintiff recovered a, verdict against both doctors, who have separately ap-. péáled. Dr. Kaplan, the subject of this opinion,- asks-judgment n.b.v. or, if he may nbt-have it, a new trial.-' Both requests were refused' below and this appeal is' from the ensuing judgment.

Since we are. considering a. motion for judgment n.o.v., the evidence must be seen in the light most favor?, able to the plaintiff, who has the verdict: Coradi v. Sterling Oil Co., 378 Pa. 68 (1954), 105 A. 2d 98; Beatty v. Hoff, 382 Pa. 173 (1955), 114 A. 2d 173.

Dr. Kaplan’s liability rests on two piers, either one of which will support-.it: his own negligence and._his responsibility as principal for ,Dr. Stone’s negligence;, which has been established' by -the companion case of Rockwell v. Stone, supra.

The following.facts-appear in the record: Dr. Kaplan said that he was “the boss of the surgical end of it” and that the plaintiff was his patient; he chose the hospital and arranged the plaintiff’s admission; he chose to use a minor elective surgical procedure to remove the bursa from plaintiff’s right arm, which procedure could be postponed or done at the patient’s convenience; he overruled his patient, who wanted local anesthesia, and -ordered a general one; if he did not choose Dr. Stone, who was the chief of the hospital’s anesthesiology department, he chose Dr. Stone’s hospital and was satisfied with him and with his choice of sodium pentothal as the induction agent and a gas for the general anesthesia; that when an alkali like sodium pentotiial is injected in an artery the artery contracts by spasm-and if the blood is shut off entirely by spasm it stagnates, a condition known as stasis; that clotting occurs about twenty minutes after stasis; that if stasis is corrected before clotting there will be no complications; that plaintiff was presented to Di*. Kaplan for surgery fifteen minutes after.the injection; that the injection in plaintiff’s left arm missed the vein and went in or around an artery; that although Dr. Stone chose not to tell Dr. Kaplan .of the “catastrophe” that had occurred at induction with the sodium pentothal, which is a very dangerous drug, Dr. Kaplan could and did see that the plaintiff’s left arm was extended on the intravenous board when the patient entered the operating room; that he assumed that when the patient was presented to him in the operating room he was ready for surgery; that he made no inquiry about the plaintiff’s reaction to the anesthesia, although Dr. Stone and his assistants did the unusual thing of remaining in the operating room and watching the left arm; that the arm visibly deteriorated during the operation and the pulse vanished while'in the recovery room afterwards; and that he left the operating room and the hospital without seeing the plaintiff in the recovery room and until after he was summoned back to the hospital by the plaintiff’s emergency condition.

Hence the basic question of fact was whether Dr. Kaplan should have seen the condition of the arm or should have asked about it and having found out should have refused to operate until it had been taken care of. In leaving such matters generally to the jury on the ground of negligence, the trial judge gave Dr. Kaplan more than he deserved when he said: “There is no testimony in the record that I can recall whereby such a standard of care is required under those circumstances of a surgeon in attendance. Therefore, if you find that there has been no violation of his duty in that regard there would be no basis for a finding of responsibility on the part of Doctor Kaplan on the first ground alone, namely negligence.”- ..

There is no dispute that the misuse of sodium pentothal caused the condition of plaintiff’s arm, which in turn caused its amputation. The jury needed no expert testimony of what Dr. Kaplan’s duty was: it was, so far as they were concerned, to. do something quickly for a dangerous condition which the evidence shows was visible and urgent. Something specific was done, though too late, and the jury had the advantage of knowing what it was. But it was not necessary that they understand the remedy,, only that there was something in Materia Medica that was not done but that needed doing and doing with dispatch. There was no conflict of testimony over this.

Plaintiff’s personal negligence was therefore properly left to the jury under the full range of the circumstances. Certainly summary judgment should be given only in clear cases: Pantuso v. Pittsburgh Motor Coach Co., 360 Pa. 464 (1948), 62 A. 2d 56.

As for Dr. Kaplan’s responsibility for Dr. Stone’s negligence, Dr. Stone testified that a surgeon could use the hospital’s anesthesiologist or bring in his own. Dr. Kaplan testified that he was “the boss of the surgical end of it”, and that “as long as Dr. Stone had anything to do with the anesthesia I was perfectly satisfied.” He chose the hospital in which Dr. Stone worked and chose a general rather than a local anesthetic. Dr. Stone testified that Dr. Kaplan had the authority to ask or tell him what sort of anesthesia he wanted, although it was not the practice at the Graduate Hospital to do so. Dr. Kaplan said that if it was best for his patient’s safety he could discontinue the operation and tell the anesthesiologist to stop giving anesthetic, particularly in minor elective surgical procedure. His words were, on the latter point: “Q. Suppose you felt that anesthesia should stop and the anesthetist felt that it should continue, and you felt that continuation would create a critical condition for your patient?, A. I would stop immediately, regardless of what he had to say, if I felt strongly that this should stop, I would stop it. Q. And you would tell the anesthetist to stop it, wouldn’t you? A. I would. Q. And he would stop, wouldn’t he? A. I think he would have to.”

The foregoing is very different from the independent contractor-like language of Dr. Kaplan’s brief. We think it points clearly to the language concerning borrowed employes in Mature v. Angelo, 373 Pa. 593 (1953), 97 A. 2d 59: “A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not.”

And to McConnell v. Williams, 361 Pa. 355 (1949), 65 A. 2d 243, where, in addition to the now famous analogy of the ship captain, Mr. Justice Stern (later Chief Justice) said: “But for the period of the opei’ation itself the situation is entirely different, and if operating surgeons were not to be held liable for the negligent performance of the duties of those then working under them, the law would fail in large measure to afford a means of redress for preventable injuries sustained during the course of such operations.”

Nor was there a conflict of evidence on the question of right of control. Dr. Kaplan and Dr. Stone did not disagree in their testimony as it has been condensed above, nor can there be doubt based on common sense that Dx\ Stone acted on Dr. Kaplan’s business; he had to or the surgeon could not operate. The undisputed evidence clearly shores up the instruction of the trial judge: “And in the eyes of the law, in this case, Dr. Stone was the agent for a step in the operative procedure, the anesthesia step. He was the agent of Dr. Kaplan.”

It is clear, under Yorston v. Pennell, 397 Pa. 28 (1959), 153 A. 2d 255, that doctors are subject to the law of agency and may at the same time be agent both of another physician and of a hospital, even though the employment is not joint.

This establishes the theory of respondeat superior and also answers the heart of defendant’s motion for a new trial. We have carefully read the charge and see no error in it when looked at in the round. We have also examined defendant’s makeweight arguments and find them without merit.

Judgment affirmed.