Brickner v. Normandy Osteopathic Hosp., Inc.

• Decision Date: 19 January 1988
• Docket Number: 51842,Nos. 51820,s. 51820
• Citation: 746 S.W.2d 108
• Parties: Cynthia J. BRICKNER, and Candace J. Brickner, a minor, by her next friend Rowell E. Burt, Plaintiffs-Appellants/Cross-Respondents, v. NORMANDY OSTEOPATHIC HOSPITAL, INC., Defendant-Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 108

746 S.W.2d 108

Cynthia J. BRICKNER, and Candace J. Brickner, a minor, by her next friend Rowell E. Burt Plaintiffs-Appellants/Cross-Respondents, v. NORMANDY OSTEOPATHIC HOSPITAL, INC. Defendant-Respondent/Cross-Appellant.

Nos. 51820, 51842.

Missouri Court of Appeals,

Eastern District,

Division Five.

Jan. 19, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 2, 1988.

Mark I. Bronson, Newman & Bronson, St. Louis, plaintiffs-appellants/cross-respondents.

Kenneth C. Brostron, Amy Rehm Hinderer, Tina A. Odo, Lashly, Baer & Hamel, P.C., St. Louis, for defendant-respondent/cross-appellant.

CARL R. GAERTNER, Judge.

Upon retrial of a wrongful death claim on the issue of liability only, the jury found in favor of plaintiffs and the trial court entered judgment against defendant in the amount of $340,717.00. Plaintiffs appeal arguing that the trial court erred in failing to allow pre-judgment interest on the damages held in abeyance. Defendant, Normandy Osteopathic Hospital, cross-appeals contending that: (1) the trial court erred in holding the hospital vicariously liable for the alleged negligence of its employee, Dr. Smith, because Smith was the borrowed servant of the attending surgeon at the time of the alleged negligence; (2) the trial court erred in holding the hospital vicariously liable for an error in the medical judgment of a physician/employee; (3) plaintiffs released their claim against the hospital by dismissing their claim against Dr. Smith; (4) the verdict director was improper because it confused and misled the jury on the issue of agency; and (5) the trial court improperly calculated the present value of the outstanding settlements with Doctors Olson and Bean when it entered judgment against the hospital. We affirm.

This is the second appeal from a wrongful death action involving a failure to diagnose testicular cancer. Decedent, James Brickner, at the direction of his family physician, Dr. Bean, entered Normandy Osteopathic Hospital on May 31, 1978. Dr. Bean suspected that Mr. Brickner had testicular cancer. On June 2, 1978, decedent underwent exploratory surgery of his left scrotum. The operation was performed by Dr. Smith, a second year surgical resident, at the hospital. Dr. Smith was supervised during the operation by Dr. Olson, a surgeon with staff privileges at the hospital who participated in its teaching program. After surgery, Dr. Smith informed decedent that he did not have cancer and that it had not been necessary to remove his left testicle during surgery.

On February 23, 1979, after continued pain and swelling, decedent went to the emergency room at Condell Memorial Hospital in Libertyville, Illinois. He again underwent exploratory surgery of his left testicle. During this second operation, the doctors discovered testicular cancer and removed decedent's left testicle. After further examination, doctors discovered that decedent was in an advanced stage of cancer. James Brickner died on December 1, 1980 of metastatic testicular carcinoma.

Decedent's wife and daughter filed suit for wrongful death against Normandy Osteopathic Hospital, David K. Bean, D.O., a family practitioner, J. P. Smith, D.O., a second year surgical resident at Normandy Osteopathic Hospital, and John Olson, D.O., a surgeon and urologist. Plaintiffs alleged that Doctors Smith, Olson, and Bean negligently failed to diagnose decedent's testicular cancer. Specifically, plaintiffs charged that Dr. Smith and Dr. Olson negligently failed to perform a biopsy or remove decedent's testicle during exploratory surgery of decedent's left scrotum.

Prior to trial, Dr. Olson settled with plaintiffs for $200,000.00. Plaintiffs then voluntarily dismissed their claim against Dr. Smith with prejudice before the case was submitted to the jury. Considering only the remaining claims against Dr. Bean and Normandy Osteopathic Hospital, the jury found in favor of the hospital and against Dr. Bean. They assessed plaintiffs' damages at $1,000,000.00. Due to instructional error, however, the trial court granted plaintiffs a new trial as to the hospital. Both the hospital and Dr. Bean appealed the decision in the first trial.

While the first appeal was pending, Dr. Bean and plaintiffs agreed to a structured settlement. Thereafter, we affirmed the trial court's decision to grant plaintiffs a new trial, but limited the new trial to the issue of liability. Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910 (Mo.App.1985). Should the second jury find the hospital liable, we instructed the trial court to enter judgment in the amount of $1,000,000.00 less the present value of the outstanding settlements with doctors Bean and Olson.

Upon re-trial the jury found the hospital liable and the trial court entered judgment in the amount of $340,717.00. The Brickners and the hospital both appeal the decision. We turn first to the hospital's cross-appeal.

APPEAL OF NORMANDY OSTEOPATHIC HOSPITAL

The hospital contends that the trial court erred in denying its motion for judgment notwithstanding the verdict because plaintiffs failed to establish liability on the part of hospital. We note at the outset that plaintiff did not allege any direct negligence against the hospital, but sought only to hold the hospital liable for the acts of its employee, Dr. Smith. The hospital argues that it cannot as a matter of law be vicariously liable for the acts of Dr. Smith because: (1) at the time of the alleged negligence, Dr. Smith was the borrowed servant of the attending surgeon, Dr. Olson; and (2) the alleged negligence involved the exercise of a physician's medical discretion over which the hospital had no control.

In reviewing the issue of liability we look only to the evidence most favorable to the prevailing party below, disregarding all evidence and inferences to the contrary. Norris v. Jones, 687 S.W.2d 280 (Mo.App.1985). ¹ The evidence favoring plaintiffs was as follows: Dr. Smith was a second year resident employed by the hospital in a surgical residency program. As part of its residency program the hospital required Dr. Smith to be present at the hospital from 7:00 a.m. to 7:00 p.m., attend to his assigned patients prior to and after surgery, and either assist in surgery or perform surgery under supervision depending on the type of operation. Dr. Smith was forbidden to accept private patients.

On June 2, 1978, Dr. Smith performed surgery on James Brickner under the supervision of the attending surgeon, Dr. Olson. Under the guidelines established for its residency program, the hospital allowed second year residents to perform scrotal explorations under supervision. The surgery was performed in "teamwork" fashion. Although the supervising surgeon had the "most" decision-making authority, Dr. Smith was required to assist in the patient's diagnosis and could have taken a biopsy of decedent's testicle without an express instruction from Dr. Olson.

Plaintiff's expert, Dr. Milner testified that he believed with a reasonable degree of medical certainty that Dr. Smith failed to adequately examine the testicle while it was exposed during surgery and, therefore missed the cancer diagnosis. Dr. Hendricks, a second expert, testified that the type of surgery performed on decedent was typically done by surgical residents with a surgeon assisting. He stated that in his opinion had Dr. Smith performed a biopsy cancer would have been discovered. The hospital argues that, as a matter of law, Dr. Smith was the borrowed servant of the surgeon, Dr. Olson.

A general employer may use the borrowed servant doctrine as a defense when these elements are present: (a) consent upon the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of the special master pursuant to an express or implied contract to do so; and (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it will stop or continue. Ballard v. Leonard Brothers Transport Co., Inc., 506 S.W.2d 346, 350 (Mo.1974); Tractor-Trailer Supply Co. v. Wilbur Waggoner Equipment Rental and Excavating Co., Inc., 539 S.W.2d 465, 467 (Mo.App.1976). Although the evidence in this case supports a finding of each of these elements, our inquiry, does not end with this finding.

Where, as here, the borrowed servant doctrine is asserted by the general employer as a defense to an action by a third party to recover for damages caused by the negligence of the employee in performing the work of the special employer, it is encumbent upon the general employer to prove, in addition to the three elements enumerated above, a total relinquishment of any right of control over the conduct of the employee insofar as the particular work is concerned.

To escape liability the general employer must surrender full control of the employee in the performance of the particular work, it not being sufficient if the servant is partially under the control of a third party. Cases so holding include McFarland v. Dixie Machinery and Equipment Co., 348 Mo. 341, 153 S.W.2d 67; and Wills v. Belger, 357 Mo. 1177, 212 S.W.2d 736. See also Restatement, Second, Agency § 227, with.reference to factors to consider.

Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217, 219-20 (Mo.1971).

The factors pertinent to our inquiry set forth in the above-cited section of the Restatement include:

In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.... [A] continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that...