Beeck v. Tucson General Hospital

Decision Date19 September 1972
Docket NumberCA-CIV,No. 2,2
Citation500 P.2d 1153,18 Ariz.App. 165
PartiesElly BEECK and Herman Beeck, her husband, Appellants, v. TUCSON GENERAL HOSPITAL, Appellee. 1043.
CourtArizona Court of Appeals

Paul G. Rees, Jr., and Richard M. Davis, Tucson, co-counsel, for appellants.

Spaid, Fish, Briney & Duffield by Richard Briney, Tucson, for appellee.

HATHAWAY, Judge.

Appellants, Elly Beeck and Herman Beeck, brought a medical malpractice action against the appellee, Tucson General Hospital, and against other defendants, doctors of Osteopathy, who are not appellees herein. This appeal is from an order of the trial court granting Tucson General Hospital's motion for summary judgment. The court ruled, in essence, that the hospital could not be liable for the acts of a radiologist, who was held to be an independent contractor, or for the acts of an x-ray technician employed by the hospital, who was held to be a 'borrowed servant' of the radiologist. Both rulings are challenged on this appeal.

In 1968, Elly Beeck experienced back pains and consulted Dr. Louis Brickler who arranged for her admission to Tucson General Hospital and subsequently referred her to Dr. Willard Brown, a specialist in orthopedic surgery. Dr. Brown was of the opinion that she might be suffering from a herniated lumbar disc, and recommended she undergo a lumbar myelogram to determine the exact nature of her ailment.

Arrangements were made to conduct the myelogram in an x-ray room at Tucson General. Dr. Brown, Dr. Frederick Rente, who was to perform the fluoroscopic examination, and Lester Henry, an x-ray technician were present and participated in the examination. During the examination, the screen of the x-ray machine, operated by Dr. Rente, descended to a point where it struck a needle which Dr. Brown had inserted in the subarachnoid space of Mrs. Beeck's spine, where the spinal fluid is located, for purposes of injecting a fluid dye. The x-ray machine collided with the needle because of the failure to place the descent-arresting stop on the machine. Fluid dye escaped from the desired area, and the attempt to perform the myelogram was abandoned. Subsequently, Mrs. Beeck began having respiratory difficulties. It was Dr. Brown's opinion that '. . . she had contracted pneumonia from the extravasation of the dye from the myelographic procedure.' He further opined that the extravasation of the dye may have resulted from his inserting the needle too deeply when additional dye was injected. He indicated, however, that it was 'just as probable' that the extravasation was caused by the x-ray screen striking the needle.

Suit was filed alleging negligence by Drs. Brickler, Brown, Rente and Tucson General. Dr. Brickler's motion for summary judgment on the pleadings was granted, and is not being appealed. Tucson General moved for summary judgment and after considering the pleadings, depositions, answers to interrogatories and admissions, the trial court found there was no genuine issue as to any material fact and concluded that Lester Henry was a 'loaned servant' and that as a matter of law, Dr. Rente was an independent contractor, and Tucson General's motion for summary judgment was granted.

Appellant contends a factual issue is presented with reference to Tucson General's liability under the doctrine of Respondeat superior as to both Henry and Dr. Rente. Answers to interrogatories and admissions must, of course, be viewed most favorably in support of the party opposing the motion. Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (1969), supplemented on rehearing, 105 Ariz. 198, 461 P.2d 675 (1969); Peterson v. Valley National Bank, 90 Ariz. 361, 368 P.2d 317 (1962). Appellee's position is that any factual dispute is inconsequential, that the significant centers of disagreement are on points of law. We agree with appellee's analysis--that a question of law is presented. We disagree, however, with the trial court's resolution of the question.

DOES THE RECORD COMPEL THE CONCLUSION THAT THE RADIOLOGIST WAS AN INDEPENDENT CONTRACTOR?

'Respondeat superior' or, 'let the master answer,' Black's Law Dictionary 1475 (4th ed. 1968), is the phrase used to express the area of the master's liability for torts of servants arising out of service to the masters. Rationale for the doctrine has been explained as follows:

'The expansion of the master's activity by use of the activity of others inevitably leads to wreckage caused by it, and it is proper for him to pay for this when tortiously caused in return for the benefits he receives from his servant's proper conduct.' W. A. Seavey, Law of Agency, § 83, at 141 (1964).

Another basis for vicarious liability in the area of medical malpractice has been given:

'. . . the enterprise which occasions negligent injury is best able to distribute its burdens by public liability insurance or otherwise--seems at least as true of medical situations as of other tort cases. Doubtless the basic trend in malpractice law, as in tort law generally, in the field of vicarious liability is toward rules which facilitate broad distribution of the loss.' Medical Malpractice, Vol. 1, p. 485.

Application of the doctrine of Respondeat superior to professional and technically skilled personnel, has frequently bogged down in the question of the right of the employer to control the conduct of the employee. The physician's vocation is viewed in some cases as requiring such high skill and learning that the layman is deemed incapable of directing him in the practice of his calling. Thus, even salaried medical employees have been held, on the basis of impossibility of control, incapable of occupying the status of servant. Runyan v. Goodrum, 147 Ark. 481, 228 S.W. 397 (1921). See 69 A.L.R.2d 322 (1960).

The non-applicability of Respondeat superior to physician employees apparently had its genesis in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). (Nurses carrying out physicians' medical orders, to whose authority they were subject, held not servants of hospital). The New York court distinguished, for purposes of Respondeat superior, the type of conduct in question. If the duties fell within an area calling upon the professional expertise of the wrongdoer, the right to direct and control professional conduct being absent, Respondeat superior would not apply. If the conduct fell within the area of administrative or managerial duties, directable by the master in their performance, then Respondeat superior would apply. Prior to Schloendorff, the rule seems to have been broadly accepted that a physician could be the servant or employee of a hospital, and the proposition that the institution became liable under the Respondeat superior doctrine was accepted in many cases. Brown v. La Societe Francaise De Bienfaisance Mutuelle, 138 Cal. 475, 71 P. 516 (1903); See Annot., 69 A.L.R.2d 288 (1960) at 310 for collection of cases holding hospitals liable under the doctrine of Respondeat superior before and after the 1914 Schloendorff opinion. Schloendorff was, we believe wisely, overruled in 1957 in Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1951). A number of other jurisdictions have also rejected the Schloendorff rule. Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364 (1952). The California Supreme Court specifically rejected the theory in Rice v. California Lutheran Hosp., 27 Cal.2d 296, 163 P.2d 860 (1945). The California court stated:

'It should be noted that a nurse or physician may be the servant of a hospital, thus requiring the application of the doctrine of respondeat superior even though they are performing professional acts.' 163 P.2d at 865.

See also Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718 (Del.1970); Klema v. St. Elizabeth's Hosp., 170 Ohio St. 519, 166 N.E.2d 765 (1960); Sepaugh v. Methodist Hosp., 30 Tenn.App. 25, 202 S.W.2d 985 (1946).

In Bing, an inflammable alcoholic antiseptic fluid, reddish in color, had been swabbed on a patient's back prior to surgery. Hospital nurses, aware that the antiseptic was potentially dangerous, were instructed to see that it did not spill on the linen and to carefully inspect and remove any linen on which the antiseptic may have spilled. The nurses did not discover that sheeting under the patient had become soaked with the fluid, and the patient was severely burned when it caught fire. The hospital attempted to invoke the Schloendorff rule, contending that the conduct in controversy occurred during the performance of a medical act. The court noted the difficulty that had been encountered in attempts to apply the rule, and the ensuing confusion resulting from its application, E.g. improperly capped hot water bottle placed on patient is administrative, Iacono v. New York Polyclinic Medical School and Hosp., 296 N.Y. 502, 68 N.E.2d 450 (1946); keeping hot water bottle on too long is medical, Sutherland v. New York Polyclinic Medical School and Hosp., 298 N.Y. 682, 82 N.E.2d 583 (1948). Blood transfusion to wrong patient is administrative, Necolayff v. Genesee Hosp., 296 N.Y. 936, 73 N.E.2d 117 (1947); transfusion of wrong blood to right patient is medical, Berg v. New York Society for Relief of Ruptured and Crippled, 1 N.Y.2d 499, 154 N.Y.S.2d 455, 136 N.E.2d 523 (1956). Use of improperly sterilized hypodermic needle is administrative, Peck v. Charles B. Towns Hosp. Inc., 275 App.Div. 302, 89 N.Y.S.2d 190 (1949); improperly administered hypodermic injection is medical, Bryant v. Presbyterian Hosp., 304 N.Y. 538, 110 N.E.2d 391 (1953). Failing to place bed sideboard is administrative, Ranelli v. Society of New York Hosp., 295 N.Y. 850, 67 N.E.2d 257 (1946); when sideboards are needed and the decision to use them is not made, the failure to act is medical, Grace v. Manhattan Eye, Ear and Throat Hosp., 301 N.Y. 660, 93 N.E.2d 926 (1950). The Bing court observed:

'From distinctions...

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