Alden v. Providence Hospital, 20011.

• Decision Date: 07 July 1967
• Docket Number: No. 20011.,20011.
• Citation: 382 F.2d 163
• Parties: Vincent A. ALDEN, Appellant, v. PROVIDENCE HOSPITAL, George W. Ware, and Habeeb Bacchus, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

382 F.2d 163 (1967)

Vincent A. ALDEN, Appellant, v. PROVIDENCE HOSPITAL, George W. Ware, and Habeeb Bacchus, Appellees.

No. 20011.

United States Court of Appeals District of Columbia Circuit.

Argued December 20, 1966.

Decided July 7, 1967.

Petition for Rehearing Denied September 15, 1967.

Mr. Robert E. Miller, Washington, D. C., for appellant.

Mr. J. Harry Welch, Washington, D. C., for appellee Ware.

Mr. Jeremiah C. Collins, Washington, D. C., for appellees Providence Hospital and Habeeb Bacchus.

Before BURGER, WRIGHT and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied September 15, 1967.

J. SKELLY WRIGHT, Circuit Judge:

The appeal in this malpractice case presents only one question: Did the trial court err in directing the verdict of the jury for the defendants at the close of the plaintiff's case? We conclude that it did as to the hospital and its chief medical resident, Dr. Bacchus. We therefore reverse for a new trial as to them. We affirm as to Dr. Ware.

Appellant was admitted to Providence Hospital in August 1956 with a condition diagnosed as bulbar poliomyelitis. On March 17, 1957, he was transferred from Providence Hospital to the Polio Rehabilitation Hospital at Warm Springs, Georgia, for further care and treatment. Medical examinations, including x-ray studies, at the Warm Springs Hospital on March 18, 1957, and at the Emory University Hospital, to which appellant was transferred from Warm Springs, on March 19, 1957, disclosed that, in addition to his polio problems, he had been suffering from chronic empyema for several months and that the empyema had resulted in a collapse of the right lung. No diagnosis of empyema had been made prior to his arrival at Warm Springs, and as a result of the empyema appellant's fifth and sixth ribs on the right side had to be removed by surgery. The basis of appellant's claim is that the appellees were negligent in failing to discover, diagnose and treat the chronic empyema while he was a patient at Providence Hospital, and that his transfer from that hospital while suffering from this disease exacerbated his condition.

The test to be applied in ruling on a motion for a directed verdict made at the close of the plaintiff's case is clear and uncontested in this litigation. Unless the evidence, along with all inferences reasonably to be drawn therefrom, when viewed in the light most favorable to the plaintiff is such that reasonable jurors in fair and impartial exercise of their judgment could not reasonably disagree in finding for the defendant, the motion must be denied.¹ With this test in mind, we first briefly review the evidence.

Empyema is an infection of the pleura, the membrane covering the lung, characterized by pus in the pleural cavity often leading to collapse of the lung. The Providence Hospital record in evidence here shows that for months prior to appellant's transfer from that hospital on March 17, 1957, the pleural fluid in his right lung was presenting a problem. Indeed the x-rays showed continued "opacity of the right lung field which could be due to excess pleural fluid and pleural thickening." On one occasion a thoracentesis was performed in which 600 cc's of cloudy yellow fluid was drawn from appellant's lung. The hospital record shows that time and again there were "no breath sounds and dullness to percussion over the right lung lobe," indicating pleural fluid and pleural thickening around the lung.

These symptoms, in addition to continuous coughing and temperature, were present throughout appellant's stay at Providence Hospital, according to its own records. Yet the hospital transfer form outlining his physical condition on transfer, signed by Dr. Bacchus as chief medical resident for the hospital, showed "chest, heart and lungs negative." The hospital record also showed, and indeed appellant testified, that Dr. Bacchus had on numerous occasions examined, treated and otherwise acted as a physician with reference to appellant during his stay at Providence Hospital. Appellant also testified that Dr. Bacchus advised him to transfer to Warm Springs. The record in this case also contains evidence from a practicing physician in the District of Columbia that on March 17, 1957, appellant had chronic empyema, and that it was not in accordance with good medical practice for a hospital or a doctor in the District of Columbia to transfer a patient in this condition.

The inferences reasonably to be drawn from this evidence are, of course, that the appellant did indeed have chronic empyema during the months he was at Providence Hospital, that the hospital's chief medical resident had failed to use the same degree of care which a physician practicing in the District of Columbia would normally be expected to use in diagnosing and treating that condition, and that the hospital through its employees, including Dr. Bacchus, had not exhibited that degree of care in diagnosing and treating appellant's empyema that would reasonably be expected of a hospital in the District of Columbia. Consequently, the case was one for the jury as to Dr. Bacchus and the hospital.²

Unlike other jurisdictions which have been plagued by confusion in their malpractice jurisprudence, particularly as to hospitals, the law in the District of Columbia in this area has been clear for some years. In general it is the duty of a hospital here to give the patient such reasonable care and attention as his condition requires. "This duty is measured by the degree of care, skill and diligence customarily exercised by hospitals generally in the community, and by the express or implied contract with the patient." Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725, 37 A.L.R.2d 1270 (1953). Moreover, "if a hospital undertakes to render services customarily performed by physicians, it must perform such services with the same degree of care to which a private physician is held * * *." Ibid.

Actually, even though a patient has an attending physician selected by him, when that patient goes to a hospital, the service rendered by the hospital ordinarily includes medical care from the doctors and nurses employed by the hospital as well as access to any laboratory facilities maintained by the hospital. While it may be that an attending physician remains in charge of the case, the hospital and its agents remain responsible for those services it performs, or should perform, under the circumstances of the case and according to good medical practice.³

We affirm as to Dr. Ware because his contact with appellant's case ended on November 10, 1956, four months before the transfer to Warm Springs. No expert evidence was produced to show that during the time Dr. Ware was associated with appellant's case the empyema should have been diagnosed and treated, if indeed it then existed.

Reversed as to Providence Hospital and Dr. Bacchus; affirmed as to Dr. Ware.

BURGER, Circuit Judge (concurring in part and dissenting in part):

I concur in the action of the Court as it relates to Dr. Ware and I dissent from the grant of a new trial as to the hospital and its resident physician. In my view the majority misreads the record and misconceives the respective roles of physicians and hospitals in their relationships with patients. I agree with the statements of law recited by the majority as they are plainly applicable to attending physicians, but I do not believe that any of them have relevance on this record as to the hospital and its employees. The majority opinion confuses the duty of the hospital and private attending physicians by equating them. Nothing could be further from the true situation where these functions are properly understood.

A hospital, as its name implies, is a hostel with special services, but it is nonetheless essentially a custodial institution, albeit a very high form of custody. Obviously this does not mean that it is sufficient for a hospital to admit a patient to its premises and then close its eyes to whatever befalls him. "It may be liable, in the first instance, if it has failed adequately to screen the members of its medical staff nurses, attendants and physicians or if it has permitted them to act beyond the scope of their competence."¹ Similarily, under the doctrine of respondeat superior, a hospital may be liable for its agent's negligence in the performance of specialized services customarily rendered by a hospital,² the failure of its agents to carry out the instructions of, or the agent's negligence in assistance to, the patient's private physician,³ or in its agent's failure to attend to the safety of the patient as his condition requires.⁴ And, of course, the hospital is liable for failure to maintain its premises or equipment in proper condition to insure safety as judged by prevailing local standards.⁵

Hospital liability predicated on respondeat superior is a relatively new concept. See Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3 (1957).⁶ This change in the law is a reflection of the fact that the hospital of today "conducts a highly integrated system of activities," Ybarra v. Spangard, 25 Cal.2d 486, 493, 154 P.2d 687, 691 (1944). I agree with the majority that

Part of the service furnished to the patient and charged for by the hospital is the assistance of nurses, interns and attendants in caring for the patient after the operation pursuant to instructions given by the operating surgeon.

Hohenthal v. Smith, supra note 3, 72 App.D.C. at 345, 114 F.2d at 496. The hospital assumes the duty to carry out the instructions of the doctor; but a hospital does not render treatment except pursuant to a doctor's order.

I suggest that Judge Wright's opinion falls into the same error as that of Appellant who failed to understand the difference between the role of the physician and that of the hospital. It is not the function of a private hospital to diagnose or treat patients except as the agent of the patient's private...