Brown v. Moore

• Decision Date: 27 June 1957
• Docket Number: No. 12062.,12062.
• Citation: 247 F.2d 711
• Parties: Emma Jean BROWN, Executrix of the Estate of George R. Brown, Deceased, Appellant, v. Martha R. MOORE, William W. Richardson, Jr., Julia R. Corbin and Robert R. Richardson (William R. Ingraham).
• Court: U.S. Court of Appeals — Third Circuit

247 F.2d 711 (1957)

Emma Jean BROWN, Executrix of the Estate of George R. Brown, Deceased, Appellant, v. Martha R. MOORE, William W. Richardson, Jr., Julia R. Corbin and Robert R. Richardson (William R. Ingraham).

No. 12062.

United States Court of Appeals Third Circuit.

Argued January 22, 1957.

Decided June 27, 1957.

Rehearing Denied August 16, 1957.

Writ of Certiorari Denied November 25, 1957.

COPYRIGHT MATERIAL OMITTED

Edward O. Spotts, Pittsburgh, Pa., Melvin M. Belli, San Francisco, Cal. (Theodore M. Tracy, Pittsburgh, Pa., on the brief), for appellant.

Harold E. McCamey, Pittsburgh, Pa. (Dickie, McCamey, Chilcote, Reif & Robinson, Pittsburgh, Pa., on the brief), for Martha R. Moore, William W. Richardson, Jr., Julia R. Corbin and Robert R. Richardson, appellees.

Milton W. Lampropolos, Pittsburgh, Pa. (Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Pa., on the brief), for William R. Ingraham, appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.

Writ of Certiorari Denied November 25, 1957. See 78 S.Ct. 148.

BIGGS, Chief Judge.

Jurisdiction in this case is based on diversity of citizenship and jurisdictional amount. Suit was brought in the United States District Court for the Western District of Pennsylvania. The operative facts occurred in Pennsylvania. There is no doubt that the substantive law of Pennsylvania governs. Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 and Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Our difficulty lies in trying to ascertain the law of Pennsylvania.

The plaintiff, the widow and executrix of George R. Brown (Brown), by her amended complaint, set up a cause of action arising under the Pennsylvania Wrongful Death Act, 12 P.S.Pa. §§ 1601, 1602, for the benefit of herself and her three minor children, and also a cause of action arising under the Pennsylvania Survival Act, 20 P.S.Pa. c. 3, Appendix, § 772. The defendants¹ are persons, who, with others, operated a private sanitarium for profit in Mercer, Pennsylvania under the style of "Mercer Sanitarium for the Treatment of Mental and Nervous Diseases" (Sanitarium) under the Pennsylvania Fictitious Names Act, 54 P.S.Pa. § 21. The Sanitarium is said to have been licensed to do business under Article II, Section 201(c) of Pennsylvania Public Law No. 414, Laws of Pennsylvania 1923, pp. 998, 1000, 50 P. S.Pa. § 1091(b).

The plaintiff contends that Brown's death, to employ the words of the amended complaint, resulted proximately from the "general, several and concurrent negligence" of the defendants acting "through their servants, agents and employees * * * within the scope of their agency and employment." In short, the plaintiff asserts that Brown was so negligently treated and with such a lack of professional skill by Dr. John L. Kelly, a neuro-psychiatrist, the "Medical Director" of the Sanitarium, and by its staff that his death resulted therefrom. The defendants assert that Dr. Kelly was "an independent contractor" and therefore the defendants themselves are not liable for any negligent or unskillful performance on his part. They also contend that they are relieved of all liability by reason of a release executed by the plaintiff and Brown and by an indemnification agreement executed by the plaintiff.

The case was tried to a jury which gave substantial damages to the plaintiff on both causes of action. The court below, however, granted motions made by the defendants for a directed verdict on the theory that Dr. Kelly was an independent contractor and that the defendants therefore could not be held liable for his negligence. See 1956, 143 F.Supp. 816. The court below directed in its final order that "judgment" be entered in favor of all the defendants including the third party defendant Ingraham. The appeal² followed.

The jury having found a verdict for the plaintiff all inconsistencies in the evidence must be resolved in her favor. So resolving them we state the following as the operative facts. Brown, a neurotic who believed that he was suffering from cancer, was sent to the Mercer Sanitarium for rest by his Pittsburgh neuro-psychiatrist, Dr. H. B. Finkelhor. While at the Sanitarium Brown was given at least two electro-shock treatments. The second treatment was administered apparently on the morning³ of September 9, 1949. Following the treatment Brown was permitted to become ambulatory. He went to the second floor of the main building of the Sanitarium for massage and, having had it, fell down a flight of steps in the afternoon of the same day. There was evidence from which the jury could have found that Dr. Kelly, the neuropsychiatrist and the individual "in charge" of the Sanitarium, failed to exercise reasonable care and professional skill in permitting Brown to descend the flight of steps unattended following the electro-shock treatment, and that Brown fell down the steps because of this lack of care and of reasonable exercise of professional skill.

The noise of Brown's fall alarmed the Sanitarium staff who ran to help him. There was evidence from which the jury could have found that Dr. Kelly was not present at the time that Brown was picked up and carried to a bed in the adjoining treatment room. It is clear that Brown was carried to a bed by at least four persons who improperly held him by his extremities, with his head hanging down. Brown complained that he had broken his neck in the fall and that he had suffered partial paralysis. He was removed to his own bed in his own room and by this time his arms and legs were paralyzed. Dr. Kelly and another doctor who was later called in from the town of Mercer to assist Dr. Kelly concluded that Brown had suffered no real or substantial injury and that his condition resulted simply from hysteria. Brown never received proper, adequate or skillful medical treatment. In fact the treatment accorded Brown was such as probably to aggravate his condition. There was evidence from which the jury was entitled to find that Dr. Kelly was guilty of malpractice. That malpractice involved "medical" acts requiring professional skill as distinguished from "administrative" acts.⁴ The jury was entitled to find, as it did, that Brown's death resulted from Dr. Kelly's improper and inadequate treatment.⁵

We point out that a person going to a doctor for treatment impliedly contracts with him for treatment and under the law of Pennsylvania if the doctor fails to afford proper treatment and care a malpractice suit sounding in tort can be maintained.⁶ It is also the law of Pennsylvania that partners are liable for trespass by themselves or by their employees in the legitimate course of the partnership business. 59 P.S.Pa. § 35, and Baxter v. Wunder, 1927, 89 Pa. Super. 585.

We come now to the central issue in the case. Can the defendants, partners in the operation of the Sanitarium as the court below correctly concluded them to be, be liable for Dr. Kelly's malpractice?⁷ There was evidence that the defendants had no control of Dr. Kelly in the performance of his professional duties, albeit one of the defendants, William W. Richardson, Jr., was a doctor. It is the defendants' contention and one that finds support in the law of some of the States, 19 A.L.R. p. 1183, § 5, that a doctor who is employed in a hospital to perform professional duties and is not subject to the control of the hospital is an independent contractor, and that the hospital which makes the doctor available is not liable to a third person for the doctor's negligence so long as the doctor has been selected with reasonable care by the hospital. This doctrine came into the law of some of the States, perhaps of a majority, following the decision of the Court of Appeals of New York, written by Judge (later Mr. Justice) Cardozo, in Schloendorff v. New York Hospital, 1914, 211 N.Y. 125, 105 N.E. 92. The Schloendorff decision was overruled very recently by the Court of Appeals of New York in Bing v. Thunig (St. John's Episcopal Hospital), 1957, 2 N.Y.2d 656, 163 N.Y. S.2d 3, 7, 143 N.Y.S.2d 3. New York had received the doctrine earlier from the Supreme Judicial Court of Massachusetts which had held in McDonald v. Massachusetts General Hospital, 1876, 120 Mass. 432, that a charity patient negligently operated on by a student doctor could not hold the hospital liable, the court stating in substance that the donations which supported the charitable institution constituted a trust fund which could not be diverted by a tort claim. As is pointed out by Judge Fuld in his brilliant opinion in the Bing case, supra, the Massachusetts court as its sole authority "relied on an English case (Holliday v. St. Leonard's, 11 C.B.N.S. 192, 142 Eng.Rep. 769), which in turn was based on a dictum in a case decided in 1839 (Duncan v. Findlater, 6 Cl. & Fin. 894, 7 Eng.Rep. 934), failing, apparently, to note case had been overruled (see Mersey Docks Trustees v. Gibbs, L.R. 11 H.L.Cas. 686) and that the decision in the other had been reversed. (See Foreman v. Mayor of Canterbury, L.R. 6 Q.B. 214.)."

Judge Fuld in note 1, cited to the text of his opinion in the Bing case, cogently quoted in part from the decision of the Supreme Court of Washington in Pierce v. Yakima Valley Memorial Hospital Ass'n, 1953, 43 Wash.2d 162, 167, 260 P.2d 765, 768, as follows: "Ordinarily, when a court decides to modify or abandon a court-made rule of long standing, it starts out by saying that `the reason for the rule no longer exists.' In this case, it is correct to say that the `reason' originally given for the rule of immunity never did exist." We agree with the view that the reason originally given for the rule of immunity never did exist but it has stood for some eighty years in State courts.⁸

In Gable v. Sisters of St. Francis, 1910, 227 Pa. 254, 75 A. 1087, the Supreme Court of Pennsylvania made it plain that a public charitable hospital was immune from...