Adamski v. Tacoma General Hospital, 2484-II

• Decision Date: 16 May 1978
• Docket Number: No. 2484-II,2484-II
• Citation: 579 P.2d 970,20 Wn.App. 98
• Parties: Richard D. ADAMSKI, Appellant, v. TACOMA GENERAL HOSPITAL, a Washington Corporation, Tacoma Care Physicians, Inc., P. S., John Doe Tsoi and Jane Doe Tsoi, husband and wife, Respondents.
• Court: Washington Court of Appeals

Page 98

20 Wn.App. 98

579 P.2d 970

Richard D. ADAMSKI, Appellant, v. TACOMA GENERAL HOSPITAL, a Washington Corporation, Tacoma

Care Physicians, Inc., P. S., John Doe Tsoi and

Jane Doe Tsoi, husband and wife, Respondents.

No. 2484-II.

Court of Appeals of Washington,Division 2.

May 16, 1978.

William J. Rush, Rush & Hayes, Tacoma, for appellant.

William R. Hickman, Reed, McClure, Moceri & Thonn, Seattle, Allan R. Billett, Comfort, Dolack, Hansler, Hulscher, Rosenow, Burrows & Billett, Tacoma, for respondents.

REED, Acting Chief Judge.

Plaintiff Richard D. Adamski appeals from a Pierce County Superior Court order which granted the motion of defendant Tacoma General Hospital (Tacoma General) for summary judgment and dismissed plaintiff's medical malpractice action against the Hospital. We reverse because we find genuine issues of material fact as to (1) whether the emergency room physician who treated plaintiff was Tacoma General's agent, and (2) whether the Hospital's emergency room nurses were negligent in their treatment of plaintiff.

On January 9, 1974, plaintiff injured his finger while playing basketball. According to plaintiff the bone had broken and was protruding from a gash on the palmar surface of the finger. Plaintiff, aided by a friend, forced the bone back into position, applied a crude splint, covered the wound with a makeshift bandage and continued the game. Later that evening he presented himself for treatment at the emergency room of Tacoma General. Plaintiff first explained his injury to an emergency room nurse, who had his finger x-rayed, and then to the physician in charge, Dr. Tsoi. The doctor irrigated, debrided and cleansed the wound with saline solution and the cut was closed completely with nylon sutures and bandaged. Plaintiff was told to consult his personal physician in 5 to 6 days for removal of the stitches, or sooner if swelling should occur. Plaintiff was also given a copy of Tacoma General's form which reads as follows:

TACOMA GENERAL HOSPITAL EMERCENCY CARE

PHYSICIAN: DATE:

INSTRUCTION FOR: Care for Wounds After Suturing

------------------------------ All sutures should be removed in your Doctor's office within 5-6 days unless otherwise advised. For your convenience, call the office for an appointment.

(Emphasis added.)

That evening plaintiff's hand began to swell and was somewhat tender; the next day the swelling had increased and he experienced severe pain. According to plaintiff, he called Tacoma General's emergency room for advice; plaintiff avers he talked with the nurse on duty, who told him that pain and swelling were not an unusual aftermath of his treatment. The next day, January 11, plaintiff avers he again called the Hospital and explained to the emergency room nurse that his situation had worsened and that he wished to be seen by the emergency room physician. He claims he was again told his symptoms were not unusual and that he should see his personal physician.

Plaintiff then attempted to contact Dr. R. Marx, an orthopedic specialist with whom he had previously treated. Dr. Marx was not available, however, and his office referred plaintiff to Lakewood General Hospital, where he was examined by its emergency room physician, Dr. North, who tentatively diagnosed a deep infection of the hand and referred him to Dr. Dale Hirz, a private physician. Plaintiff told Dr. Hirz how the injury had been sustained and how he had reduced the fracture so that the bone was not exposed. Based on this history, Dr. Hirz suspected that a staphylococcus infection had entered the joint sheath and determined that immediate treatment was needed to halt the spread of infection. Plaintiff was admitted to Lakewood General Hospital, placed on antibiotics and the next day, because his condition had not improved, Dr. Hirz surgically opened the little finger; the adjacent ring finger and wrist were also opened to permit a thorough flushing of purulent material from the infected area. The wound on the little finger was left open for drainage it eventually healed naturally without suturing and plaintiff was placed on specific antibiotics.

Plaintiff brought this action for damages against Dr. Tsoi, Tacoma Emergency Care Physicians, Inc., P.S. (TECP), a group of physicians who had contracted with Tacoma General, and Tacoma General, alleging as to the latter that (1) Dr. Tsoi was negligent in his diagnosis and treatment, (2) Dr. Tsoi was acting as the Hospital's agent, and (3) the Hospital's nurse-employees were negligent.

Tacoma General moved for summary judgment in its favor, asserting it could not be held liable for Dr. Tsoi's negligence upon the theory of respondeat superior because the doctor was not acting as its agent (employee-servant). Tacoma General argued the doctor was an independent contractor over whose actions it neither had nor exercised any right of control. In support of its motion Tacoma General filed (1) the affidavit of Dr. Tsoi; (2) the affidavit of Bruce Yeats, its assistant administrator; (3) a copy of the contract between Tacoma General and TECP; and (4) excerpts from Dr. Tsoi's deposition. In his affidavit Dr. Tsoi denied negligence and averred that he had treated plaintiff in accordance with the appropriate standard of care. In his deposition the doctor further stated that the TECP physicians exercised complete control over the emergency room facilities and personnel and the diagnosis and treatment of patients therein.

According to the other supporting documents, on January 1, 1973 the Hospital contracted with TECP, a group of 5 licensed physicians, among them Dr. Tsoi, to furnish emergency room physicians on a 24-hour basis. The contract specifically classifies the emergency room doctors as "independent contractors" and not "agents or employees" of the Hospital. The agreement further provided inter alia that (1) Tacoma General alone is to bill patients for the fees of the physicians, who agree to charge going rates; (2) the Hospital undertakes to collect from the patient, by suit if necessary ; (3) Tacoma General guarantees TECP $10,000 per month; (4) after certain deductions TECP is to be credited with 85 percent of all doctor fees collected, less the $10,000 guaranty; the Hospital retains 15 percent for its collection services; (5) the emergency room doctors must be members of Tacoma General's staff and may not carry on a private practice in Pierce County, although they are not prohibited from (a) providing emergency room service to other hospitals, (b) assisting private physicians with surgery upon request, (c) teaching medical subjects and (d) providing medical laboratory consulting services; (6) emergency room physicians are precluded from utilizing the emergency room as a "source of private practice"; (7) if TECP desires to furnish a physician other than one of the five named in the contract, Tacoma General's Board must first consent; (8) Tacoma General and TECP will each procure and maintain "professional liability, negligence, errors and omissions, and public liability" policies with limits of $1 million.

On this record, the trial court concluded that Dr. Tsoi was an independent contractor and not an employee of the Hospital, and thus refused to hold the Hospital liable on a respondeat superior theory. In addition the court found there was no proof Tacoma General's nurses acted negligently. Accordingly, Tacoma General's motion for summary judgment was granted and it was dismissed from the lawsuit.

On appeal we are asked to decide if the trial court should have submitted to the jury (1) the issue of Dr. Tsoi's agency, and (2) the issue of negligence on the part of the nurses. A summary judgment may be granted only when the record before the trial court presents no genuine issues of material fact and entitles the moving party to judgment as a matter of law. Morris v. McNicol, 83 Wash.2d 491, 519 P.2d 7 (1974). In ruling upon a request for summary judgment the trial court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, George D. Poe & Co. v. Stadium Way Prop., 7 Wash.App. 46, 498 P.2d 324 (1972). In determining whether the movant has satisfied his burden of excluding any real doubt as to the existence of any genuine issue of material fact, the movant's papers must be closely scrutinized, while those of the nonmovant should be treated with indulgence. Finally, summary judgment will be denied if there appears to be any reasonable hypothesis under which the nonmoving party may be entitled to the relief sought. Fleming v. Smith, 64 Wash.2d 181, 390 P.2d 990 (1964).

Tacoma General relies upon the law as summarized at Annot., 69 A.L.R.2d, Hospital Liability Neglect of Doctor 307, 315 (1960):

The general principle that the employer of an independent contractor is not liable for the torts of such contractor or his servants has frequently been recognized with respect to the liability of a hospital for the negligence or malpractice of a physician or surgeon. In other words, putting aside the difficult question whether, under particular circumstances, a particular medical practitioner was an independent contractor so far as the hospital in which a patient was injured through his carelessness is concerned, the conclusion that, assuming such practitioner was an independent contractor in relation to the hospital, the hospital is not liable for such injury, is supported by many decisions.

(Footnote omitted.) See also 40 Am.Jur.2d Hospitals and Asylums § 14, p. 860, et seq. (1968).

We have found no Washington cases addressing the problems inherent in the application of the doctrine of respondeat superior to the hospital-physician relationship. Tacoma General argues that the ordinary rules of agency must be applied and that if this is done, Dr. Tsoi must be held to be an independent contractor for whose negligent acts the Hospital is not responsible. We are referred to the case of Hollingbery...