Yorston v. Pennell , 397 Pa. 28 ( 1959 )

Opinion by

Me. Justice McBride,

This is an appeal by defendant from the judgment on a verdict in favor of the plaintiff in a malpractice action against a staff surgeon at Episcopal Hospital, Philadelphia.

Originally plaintiff included the hospital as a party defendant but, upon preliminary objection that as a charitable institution it was immune from liability for the torts of its servants, the suit against the hospital was discontinued.

In the court below defendant abandoned his motion for new trial and contends only that he is entitled to judgment n.o.v.

It is clear, therefore, that we must consider only the evidence which supports the verdict and reject any evidence to the contrary, Acchione v. Acchione, 376 Pa. 36, 101 A. 2d 642; Beatty v. Hoff, 382 Pa. 173, 114 A. 2d 173, 178.

Plaintiff based his claim of negligence on two separate grounds: (1) defendant’s personal negligence; and (2) defendant’s responsibility for the negligence of his agents in accordance with the principle of respondeat superior. At the trial, the court below submitted the case to the jury only on the second ground. However, in considering defendant’s motion for judgment n.o.v. the court en banc relied on both theories.

If the evidence justified submission to the jury on the basis of respondeat superior then the action of the court below must be affirmed. However, if the judgment of the court below can be supported only on the evidence of direct negligence of defendant then the judgment cannot stand since this issue was not submitted to the jury. In that event, however, it would be improper for us to decide this appeal on the sole issue of whether defendant is entitled to judgment n.o.v. notwithstanding the fact that neither party has asked for the grant of a new trial.

On September 13, 1956, plaintiff was working for the Baton Construction Company, when a nail ricocheted from a ramset gun he was using, entered his right leg and fractured the fibula. He was brought to the receiving ward of Episcopal Hospital between 2 and 3 p.m. The gist of his complaint is that thereafter he became the patient of defendant, Dr. Edgar L. Pennell, Jr., who negligently permitted Ms agents and servants to prescribe penicillin for plaintiff although they knew or should have known that plaintiff was allergic to this drug, as a result of which plaintiff sustained serious permanent injuries. The injuries were clearly proved and there is no contention but that they were caused by the penicillin. The real question is whether the defendant, who denied agency and put negligence in issue under Buie 1045, is responsible.

The surgical staff of Episcopal Hospital was, at this time, divided into two sections, A and B. They alternated, for periods of six weeks, in the duties of attending patients such as plaintiff brought into the hospital for surgery. Surgical Service B was composed of approximately ten persons who were either surgeons, residents or interns. Dr. Pennell, like the other staff surgeons or associates, received his appointment to Surgical Service B from the Board of Managers of Episcopal Hospital. Neither he nor the other associates were paid any compensation by the hospital. Hr. Pennell maintained his principal office at the hospital, for which he paid rent. He was entitled to charge fees from patients who could afford to pay them and from insurance companies in cases involving workmen’s compensation, such as that of plaintiff.

Resident physicians, among them Hr. Mohammad Hatemazadeh, usually referred to as Dr. Hatemi, were appointed by the Board of Managers and were paid a full time employee’s salary by the hospital and were assigned by the hospital to a particular service. An associate surgeon had no power to discharge any resident. No surgical resident could perform operations without the permission of a staff surgeon of his service. Dr. Hatemi regarded Dr. Pennell as being more active than any other one of the associates under whom he served and spoke of him as his “whole boss” and as his “teacher”. Interns were appointed by the Board of Managers, were paid a salary, and were full time employees of the hospital. They could not be discharged by an associate surgeon. Junior interns, including a Mr. Rex, were hired by the assistant to the director of the hospital and were paid by the hospital. These were fourth year medical students who substituted for and performed the duties of interns.

A few months before his accident plaintiff had contracted a virus condition. His family physician, Dr. Katzman, had given him one injection of penicillin in treating him for it. Plaintiff developed a skin rash resulting from an allergy to this drug, whereupon Dr. Katzman discontinued its use and wrote a note on one of his prescription blanks which stated that plaintiff was allergic to penicillin and that he was never to receive that drug under any circumstances. Plaintiff put the note in his wallet and on Dr. Katzman’s instructions kept it with him. He had it with him when he arrived at the hospital on September 13, 1956.

While plaintiff was in the receiving ward he showed the note to one of the nurses and to Rex, the junior intern. Plaintiff’s wife, who had arrived shortly after plaintiff, also showed the note to one of the nurses, and she told Dr. Washington, an intern, that there was a note about an allergy which she had given to the nurse and also that plaintiff was allergic to tetanus antitoxin.

Since plaintiff also advised Rex about an allergy to tetanus antitoxin, a skin test was made which proved negative. Tetanus antitoxin was therefore administered. No test was made for allergy to penicillin although there is testimony in the record from Dr. Gottlieb, an allergy specialist, that tests can be made for allergies to various types of penicillin.

Plaintiff remained in the receiving ward about four hours. During this time Dr. Pennell came there and plaintiff’s wife spoke to him, complaining about the long time plaintiff was kept waiting to have the nail taken out of his leg.

While plaintiff was still in the receiving ward, Dr. Hatemi was called to the ward. Dr. Hatemi was at that time a graduate of a medical school in Iran; had spent a one year internship in Quonset City Hospital in Boston, Massachusetts; and then had come to Philadelphia and been appointed a surgical resident at Episcopal Hospital. Upon his appointment he had applied, on July 4, 1956, for a license to pursue postgraduate study in general surgery at the Episcopal Hospital. Prior to the grant of such a license an interview is required with a representative of the Board of Medical Licensure of the Commonwealth. That interview took place on August 20, 1956. The application was approved by the Board, in regular session, at a meeting held on October 20, 1956, retroactively for a period commencing July 4, 1956 (the date of the application) to July 3, 1957. Therefore, on September 13, 1956, the date of plaintiff’s accident, Dr. Hatemi’s application had not yet been approved.

When he was called to the receiving ward Dr. Hatemi examined plaintiff, took a brief history of the manner in which the accident had happened and ordered x-rays. The x-rays disclosed the fracture and the presence of the nail in the fibula. He took the x-ray plates to Dr. Pennell in his private office in the hospital. Dr. Pennell examined the plates and reviewed with Dr. Hatemi the plan of treatment to be followed in repairing the injury to plaintiff’s leg. This plan included a general discussion of post-operative care in which antibiotics were mentioned but no specific reference to penicillin was made. A witness called by plaintiff, however, testified that during his investigation on behalf of plaintiff’s employer’s compensation insurance carrier Dr. Pennell told him that after the operation he had advised penicillin but at the time had no knowledge of plaintiff’s allergy, and that as soon as he found out about it he stopped the use of that drug. While Dr. Hatemi was discussing the matter with Dr. Pennell the junior intern, Bex, was making a physical examination and taking a history of the case. It was specifically by virtue of Dr. Hatemi’s order that Bex took this history, for otherwise his duties in the receiving ward did not require him to take histories of patients admitted to the hospital for surgery. Part of the history was taken in the receiving ward and part in the corridor outside the operating room.

After Dr. Pennell and Dr. Hatemi had agreed on the proper procedures and Dr. Pennell had approved of Dr. Hatemi’s operating, the latter examined the plaintiff’s heart and pnlse while he was in the corridor. Plaintiff was then brought into the operating room. At that point Rex, remembering that although he had been informed that plaintiff was allergic to penicillin he had neglected to note this fact in the written history, thereupon went to the door of the operating room. But since he was improperly attired hospital procedures prevented his entering the room. He called the nurse anesthetist to the door and asked her to make a notation on the history that plaintiff was allergic to penicillin. She said she would. Prior to the operation Dr. Hatemi read the history. The history produced at the trial shows the notation “Allergic to Penicillin”. Rex denied that he made it. There is no evidence in the record to show who made it, or when it was made.

Plaintiff testified Dr. Pennell was in the operating room prior to the operation and lifted his leg by his big toe. Dr. Hatemi personally administered the spinal anesthesia. The nail was extracted and later given to plaintiff in accordance with his request. A cast was placed on the leg and the operation was completed. Dr. Hatemi, as the operation was drawing to a close, dictated the post-operative orders in which he prescribed 600,000 units of penicillin every four hours. After that plaintiff was taken to the ward and prior to the administration of penicillin he advised the nurse on duty that he was allergic to it. Nevertheless, between 8:15 p.m. and 9:00 p.m. she administered penicillin in accordance with the directions contained on the chart. She testified that when the plaintiff arrived in the ward after the operation and as late as 11 o’clock that night there was no notation of a penicillin allergy on the chart. Plaintiff was again given 600,000 units of penicillin at midnight by the succeeding nurse, and again at 4:00 a.m. Plaintiff testified that he told all with whom he came into contact that he was allergic to penicillin, including two other men in the ward, and that on one occasion, when Dr. Hatemi and Dr. Pennell were present, the former said that he was giving plaintiff “oremycin” but Dr. Pennell told Dr. Hatemi to give plaintiff 25,000 units of penicillin. When plaintiff protested to Dr. Pennell that he was allergic to penicillin the latter merely walked away. Plaintiff insisted that he protested so much against the use of penicillin that the nurses considered him a pest, one of them even refusing to look at Dr. Katzman’s note advising against the use of penicillin.

On September 14th, the morning after the operation, when the nurse tried to administer penicillin, plaintiff objected whereupon the nurse called Dr. Pennell who came to the ward and cancelled the order for penicillin and directed that achromycin be given instead. Plaintiff was discharged from the hospital on September 18 th.

On the morning of September 20th he developed an allergic skin reaction and called his own physician, Dr. Katzman, who had plaintiff readmitted to the hospital as Dr. Pennell’s patient. The next morning plaintiff suffered a cerebrovascular accident followed by severe physical and personality changes as a direct result of the penicillin reaction.

The various charts and admission sheets for both the first and second admissions were signed by Dr. Pennell over the printed form at the place where the “Chief or Attending M.D.” should sign.

Plaintiff was discharged from the second admission to the hospital on October 4, 1956. Under date of November 6, 1956, Dr. Pennell submitted to the Pennsylvania Manufacturers Association Casualty Insurance Company, which was the carrier of plaintiff’s employer’s workmen’s compensation insurance, a medical voucher for charges for himself in the sum of $80 for daily visits from the date of plaintiff’s first admission on September 13 through September 18 and daily visits from his second admission on September 20 through October 4,1956, and $100 for the operation performed on September 13, 1956. Dr. Hatemi was not himself permitted to make any charge. The insurance company sent its check to Dr. Pennell in the sum of $180 which he deposited to his account.

The medical testimony shows that of all the antibiotics penicillin is the one most likely to cause allergic reactions and this has been known since 1943. Such reactions may occur immediately, that is, within a minute or two or as much as four weeks later, and can have serious consequences involving the brain, nerves, gastro-intestinal tract, skin and the blood.

We must decide then whether the doctrine of respondeat superior has been properly applied. It is clear that the relationship of physician and patient existed between Dr. Pennell and plaintiff commencing September 13 and continuing throughout plaintiff’s first and second admissions. Dr. Lucius Roy Wilson, Director of Episcopal Hospital, testified unequivocally that in accordance with the practice of the hospital plaintiff was Dr. Pennell’s patient. This is supported by the fact that Dr. Pennell signed the chart at the place reserved for the “Chief or Attending M.D.” and later submitted to the compensation carrier his bill, which was paid. In treating plaintiff Dr. Pennell therefore owed him the duty of employing such reasonable skill and diligence as is ordinarily exercised in his profession, giving due regard to the advanced state of the profession at the time of treatment. Powell v. Risser, 375 Pa. 60, 65, 99 A. 2d 454. It is equally clear that the Episcopal Hospital owed a duty toward plaintiff which it was bound to fulfill irrespective of whether its failure under present law permits recovery against it. The problem, of course, is whether the persons who administered to plaintiff may be properly said to be agents of Dr. Pennell or agents only of the hospital.

Physicians and surgeons, like other persons, are subject to the law of agency and a physician may be at the same time the agent both of another physician and of a hospital even though the employment is not joint. McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243. In determining whether a person is the servant of another it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it, but that this work is to be performed on the business of the master or for his benefit. McGrath v. Edward G. Budd Manufacturing Co., 348 Pa. 619, 623, 36 A. 2d 303, 305. Actual control, of course, is not essential. It is the right to control which is determinative. On the other hand, the right to supervise, even as to the work and the manner of performance, is not sufficient; otherwise a supervisory employee would be liable for the negligent act of another employee though he would not be the superior or master of that employee in the sense the law means it. Restatement, Agency 2d, §220(1) (1958); Commonwealth to the use of Orris v. Roberts, 392 Pa. 572, 141 A. 2d 393.

Dr. Tlatemi was a paid employee of Episcopal Hospital. In his capacity as a resident he was duty-bound to act on behalf of the hospital. In accordance with that duty he was called upon to see plaintiff upon admission. He made an examination or partial examination of plaintiff. However, under the law, in view of the fact that he was not a licensed surgeon, he could not himself undertake operative surgery without first consulting and receiving approval of the chief or an associate of Surgical Service B. He therefore consulted with Dr. Pennell who authorized him to proceed with the operation. At this time, in accordance with the rules of the hospital an'd as demonstrated by Dr. Pennell’s later conduct, the plaintiff became the patient of Dr. Pennell. Dr. Pennell had the choice of operating himself or of designating another qualified person to do it for him. He chose Dr. Hatemi to operate in his stead. But when he did so he did not abandon, in contemplation of law, either the right of control or his own interest and duty in the premises. From this moment onward Dr. Hatemi was the agent of Dr. Pennell. His negligence thereafter, if any, is in the light of the verdict imputable to Dr. Pennell. What did Dr. Hatemi do? He directed Rex, the junior intern, to take a history of the case. The evidence is clear that the general duties of Rex qualified him to take case histories. However, in the normal course of events, since the hospital had assigned him to the receiving ward, he would not have taken this history had he not been selected by Dr. Hatemi to do so. In this sense, therefore, Rex was “borrowed” from the hospital. While remaining a general employee of the hospital he became a sub-agent of Dr. Pennell. See McConnell v. Williams, supra. He took the history and although informed of the plaintiff’s allergy to pencillin, failed to note it on the chart. While defendant’s chosen agent, Dr. Hatemi, was performing the operation and therefore in full command of all persons in the operating room to the exclusion of hosjfital control during that period (see McConnell v. WilUams, supra), Rex informed the nurse anesthetist of the fact that the history was incomplete. Exactly what followed is not known. If the nurse did as Rex asked and noted the allergy on the chart before Dr. Hatemi read it, or told him of it, a jury could find that Dr. Hatemi himself was negligent. If the nurse failed to correct the history or inform Dr. Hatemi her negligence is apparent. If Dr. Pennell had been in charge of the operation in place of Dr. Hatemi would lie have been responsible for disregarding the correction or for Rex’s and the nurse’s failure? If so, then he is equally responsible here since his chosen agent, Dr. Hatemi, was acting for him. The knowledge of Rex and the nurse anesthetist and that imputable to Dr. Hatemi was imputable to Dr. Pennell.

We conclude that the harm suffered by plaintiff was caused by the post-operative orders given by Dr. Hatemi during the surgery itself at a time when he was responsible for the acts of both Rex and the nurse anesthetist. It follows from a proper application of the principles of respondeat superior that the jury were justified in finding that Dr. Pennell was therefore responsible.

In this case as in McConnell v. Williams, supra, “It may well have been in contemplation that [Dr. Pennell] might need help in taking care of [plaintiff], . . . but the necessity of employing assistants is one of the ordinary circumstances of both business and professional life; it is to regulate just such situations that the law of agency exists.5’ What Dr. Pennell chose to do through Dr. Hatemi “was to call for and borrow from the hospital an interne [and a nurse] who thereby became — or so at least a jury might find — Ms temporary servant or employee for the purpose for which he was engaged.” Neither Dr. Pennell nor Dr. Hatemi would be responsible for the acts of agents of the hospital, such as nurses who administered penicillin post-operatively on their own or at the instance of other physicians. Here, the penicillin was administered specifically because of the directions of Dr. Hatemi given while in the operating room and so recorded on the chart. See Jordan v. Touro Infirmary, 123 So. 726, 730 (La.); Aderhold v. Bishop, 94 Okla. 203, 206, 221 P. 752, 754; Emerson v. Chapman, 138 Okla. 270, 280 P. 820; Simons v. Northern Pacific Rwy. Co., 94 Mont. 355, 366, 367, 22 P. 2d 609, 613; Ales v. Ryan, 8 Cal. 2d 82, 105, 64 P. 2d 409, 420; Ybarra v. Spangard, 25 Cal. 2d 486, 492, 154 P. 2d 687, 690.

Defendant was present in contemplation of law since Ms personally chosen agent performed the operation. When that personally chosen agent performed the operation the hospital employees assisting in it who ordinarily would not be servants either of Dr. Hatemi or Dr. Pennell became, during that operation at least, the agents of Dr. Pennell through the agency of Dr. Hatemi. Indeed, plaintiff testified that for at least a part of the operative procedure in the operating room Dr. Pennell was personally present. During the operation the intern, nurses, etc., were not acting “in the regular course of services furnished by a hospital” as in Powell v. Risser, 375 Pa. 60, 99 A. 2d 454. The hospital was not performing the operation. They were present and acting on behalf of the operating physician whether or not they were still acting on behalf of the hospital.

In Benedict v. Bondi, 384 Pa. 574, 122 A. 2d 209, a student nurse filled two hot water bottles with water that was too hot, turned them over at the direction of Dr. Bondi to a graduate nurse, who applied them to the feet of a three year old child. We reversed a non-suit as to Dr. Bondi on the ground that even though a surgeon is not ordinarily responsible for pre-operative preparation or post-operative care, Shull v. Schwartz, 364 Pa. 554, 73 A. 2d 402; Scacchi, Administrator v. Montgomery, 365 Pa. 377, 75 A. 2d 535, the negligence of the nurse occurred during the operation itself. Here the instructions were given during the operation itself. In Shull v. Schwartz, 364 Pa. 554, 73 A. 2d 402, we affirmed a judgment for defendant upon a jury’s verdict where, after a successful operation, a hospital intern, in the absence of the operative surgeon, negligently removed stitches as part of the post-operative treatment. This decision turned on the fact that the surgeon did not personally participate in the act which caused the injury.

In Scacchi v. Montgomery, 365 Pa. 377, 75 A. 2d 535, we said: “There was no evidence that the hospital intern or nurse were negligent in their post-operative care of the patient, but even if they had been, the defendant under the facts in this case would not have been liable: Stewart v. Manasses, 244 Pa. 221, 90 A. 574; McConnell v. Williams, 361 Pa. 355, 65 A. 2d 243.” In the instant case, however, there is no contention that post-operatively the nurse who administered penicillin did so negligently. She acted in strict accordance with the post-operative care prescribed by Dr. Hatemi.

The defendant had the requisite right of control and supervision over the conduct of the persons acting for him. I-Te was required by law to supervise any operation by Dr. Hatemi and Dr. Hatemi was similarly required to submit to his supervision. Defendant actually assumed the supervision of the plaintiff’s treatment and, as he himself testified, he consulted with Dr. Hatemi not only with respect to the surgical procedure but the pre and post-operative procedures as well. He testified indeed that their discussion did cover the question of postoperative antibiotics though penicillin was not specifically mentioned. The defendant’s area of concern and control was not limited simply to the extraction of the nail and reduction of the fracture. His power and his duties did not end at the door of the operating room. His own testimony proves this. A further indication that this is so is found in the fact that when plaintiff complained to the nurse on the following morning she called Dr. Pennell and he exercised his undoubted power by ordering discontinuance of the pencillin.

As we said in McConnell v. Williams, 361 Pa. 355, 360, 65 A. 2d 243, “Where one person lends his servant to another for a special employment the test is whether, in the particular service he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired: . . .

“When different inferences can fairly be drawn from the evidence as to who is the controlling master of the borrowed employee at the time of the commission of the negligent act, it is for the jury, not the court, to determine the question of agency: . . .”

It is inferrable from the evidence in this record that Mr. Rex and Dr. Hatemi were made available to the defendant by the hospital and that the care and treatment of the plaintiff was defendant’s business; and further, that the resident and junior intern were subject to the defendant’s control precisely in respect of the actions which caused the plaintiff’s injury.

The judgment is affirmed.