Brown v. Moore
| Citation | 143 F. Supp. 816 |
| Decision Date | 09 August 1956 |
| Docket Number | Civ. A. No. 9080. |
| Parties | Emma Jean BROWN, Executrix of the Estate of George R. Brown, Deceased, Plaintiff, v. Martha R. MOORE, William W. Richardson, Jr., Julia R. Corbin and Robert R. Richardson, Defendants, William R. INGRAHAM, Third-Party Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Edward O. Spotts, Jr., Theodore M. Tracy, Pittsburgh, Pa., Melvin Belli, San Francisco, Cal., for plaintiff.
Harold E. McCamey, of Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., for defendants.
Milton W. Lamproplos, of Smith, Burchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Pa., for third-party defendant.
The trial in this case resulted in verdicts of $35,000 in the survival action and $25,000 in the wrongful death action. Motions were made to enter judgment for defendants and third-party defendant in accordance with their motions for a directed verdict, on which judgment was reserved; or in the alternative to grant a new trial, or dismiss the action for lack of jurisdiction.
The motions contained reasons which can be classified as follows:
(1) denial of liability for malpractice of a physician in the exercise of professional services;
(2) denial that the owners of a private sanitarium had a non-delegable duty to provide proper medical care and treatment to a patient;
(3) the court lacked jurisdiction;
(4) the evidence was insufficient;
(5) the verdicts were excessive.
It is the opinion of the court that the motion for a directed verdict should have been granted, and the motion for a new trial should be denied.
The defendants, together with the third-party defendant, were the owners of Mercer Sanitarium at Mercer, Pennsylvania, which they conducted for profit. This institution accepted for treatment patients afflicted with mental and nervous diseases. The third-party defendant was the business manager, and the only owner residing at the Sanitarium during the period pertinent to this case. The defendants resided in foreign states; one was a medical doctor.
On September 5, 1949, George R. Brown, the plaintiff's decedent, was admitted to the Sanitarium by Dr. John L. Kelly,1 the medical director, as a patient for treatment of an anxiety neurosis. The verdict establishes that on September 13, 1949, he died as a result of malpractice on the part of Dr. Kelly.2
The jury could have found that several hours after an electro-shock treatment, Brown was negligently permitted to walk about unaccompanied and fell down a flight of steps, breaking his neck; that the doctor negligently diagnosed his condition as hysteria and treated him accordingly; and that the negligence was the proximate cause of Brown's death.
The undisputed evidence produced on behalf of plaintiff disclosed that the owners employed Dr. Kelly, a licensed medical doctor, registered nurses, practical nurses and nurses aids. The doctor was given a residence on the grounds and partial maintenance; he was paid an annual salary, subject to the usual withholding deductions. The doctor had broad managerial powers over the medical facilities, nursing personnel, diagnoses and treatment of patients. He was permitted to engage in private practice, but the Sanitarium had first call on his time twenty-four hours a day.
Prior to September 5th, Mr. Brown had undergone treatment at two Pittsburgh hospitals in the service of his family doctor. The latter referred him to Mercer Sanitarium, but neither he nor Mr. and Mrs. Brown were acquainted with Dr. Kelly who was its only physician at that time. The Browns met Dr. Kelly in his office at the Sanitarium when he admitted Mr. Brown as a patient. There they signed an admission card giving "The Mercer Sanitarium permission to administer any form of recognized medical treatment, including Electro-Shock Therapy, to George R. Brown which is deemed advisable by the Medical Staff of said Sanitarium, and does hereby release The Mercer Sanitarium and its employees from any damages on this account." Mrs. Brown, the plaintiff, also agreed "to indemnify The Mercer Sanitarium for any loss resulting from injury to or injury or damage caused by George R. Brown while a patient of Dr. J. L. Kelly and the said Sanitarium herein mentioned."
The plaintiff submitted her case of liability on the theory that a private sanitarium conducted for profit is liable for the torts of its hired physician and nurses in performing medical and professional services for Mr. Brown pursuant to the doctrine of respondeat superior. She relied on one Pennsylvania case decided by a court of common pleas in 1931, Ulbrich v. Boone County Coal Corp., 16 Pa.Dist. & Co. 315, and cases from several foreign jurisdictions.3
The facts relating to the employment of Dr. Kelly were proved by plaintiff and are not in dispute. The malpractice proved involved medical or professional skill and learning as distinguished from routine hospital duties directed administratively.4
It seems that the negligent performance of routine matters such as those mentioned in footnote 4 renders a private employer liable, because he retains the right to direct not only the manner in which the work is to be done but also the specific result to be accomplished. In those cases the technical employees, whether doctors or nurses, were hired to exercise their peculiar skill and technical knowledge to perform certain acts, and to produce certain definite and specific results which are known in advance of employment. Similar reasoning forms the basis for liability of masters who employ technicians such as pilots, chauffeurs, engineers and the like. Utterly dissimilar is the negligence occurring in the course of treatment where medical and professional services by doctors and nurses are required and over which the employer not only has no control, actual or potential, over either the result to be accomplished or how it is to be accomplished, but, indeed, such control is forbidden by law.5 In such circumstances, physicians and trained nurses exercise their own undirected judgment and discretion and act as independent contractors. Cf. Mracheck v. Sunshine Biscuit, Inc., 1954, 308 N.Y. 116, 123 N.E.2d 801; Runyan v. Goodrum, 1921, 147 Ark. 481, 228 S.W. 397, 13 A.L.R. 1403; Restatement, Agency, § 223, comment (a), (b).
Although no Pennsylvania case in point has been brought to our attention, except perhaps the Ulbrich case, it is fundamental in Pennsylvania that a principal cannot be held liable unless he is the master of the negligent party and as such controls or has the right to control the conduct of his servant. Control or potential control over the servant seems to be the essence of liability. Silveus v. Grossman, 1932, 307 Pa. 272, 161 A. 362.6, 7 The applicable Pennsylvania rules appear at page 638 in Joseph v. United Workers Ass'n, 1942, 343 Pa. 636, 23 A.2d 470, 472, with which the Restatement, Agency, § 2208 is in accord:
Dr. Kelly, hired by the owners and placed in charge of diagnoses and treatment of patients was engaged as a skilled professional man on the understanding that he was to function according to his own personal judgment, learning and skill. The owners undertook "`not to heal or attempt to heal through the agency of others, but merely to supply others who will heal or...
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