Davis v. Trobough, 10214

• Citation: 139 Mont. 322,363 P.2d 727
• Decision Date: 19 July 1961
• Docket Number: No. 10214,10214
• Parties: Hazel Marie DAVIS, Plaintiff and Appellant, v. G. E. TROBOUGH, Defendant and Respondent.
• Court: United States State Supreme Court of Montana

Page 727

363 P.2d 727

139 Mont. 322

Hazel Marie DAVIS, Plaintiff and Appellant, v. G. E. TROBOUGH, Defendant and Respondent.

No. 10214.

Supreme Court of Montana.

Submitted June 8, 1961.

Decided July 19, 1961.

M. J. Doepker, Butte, for appellant.

J. B. C. Knight, Wade J. Dahood, Anaconda, Wade J. Dahood, argued orally, for respondent.

DOYLE, Justice.

This is an appeal from a judgment of nonsuit entered by the trial judge of the district court of Deer Lodge County. The plaintiff, appellant herein, instituted a malpractice action against the respondent, Dr. G. E. Trobough. The appellant alleges in her complaint that on or about December 11, 1956, she was injured in an automobile accident and that she employed the services of the respondent as a physician and surgeon to care for and treat her by reason of the injuries she had sustained. Appellant was brought to St. Ann's Hospital at Anaconda, Montana, where she remained for several days.

The record and exhibits disclose that the respondent carefully examined appellant, had X-rays taken of the portions of her anatomy where she stated she had pain and that serology tests were had. After the respondent had determined what treatment was indicated for appellant, he prescribed among other things, cold packs and warm packs on the right leg and ankle of the appellant. It is undisputed that the nurse in charge of the surgical ward was an employee of St. Ann's Hospital and was not an employee or agent of the respondent.

Respondent testified without contradiction 'I had no direct control, no, over what was done by the nurses * * *.'

On the following morning the respondent was informed by the Sister Supervisor that the appellant had a small burn or irritation on the back of the calf of the right leg which area was blistered and was about the size of a dollar.

The cause was tried before the Honorable Sid G. Stewart, the trial judge who granted a motion for nonsuit made by the respondent's attorneys.

From this judgment of nonsuit and the foregoing recitation of facts, the appellant appeals to this court, setting out as error the following specifications:

1. The court erred in granting the motion of the defendant and respondent for a nonsuit.

2. The court erred in entering judgment for dismissal and costs against the plaintiff and appellant.

3. The court erred in matters supplemental in its rulings and matters supplemental of the judgment herein concerning memorandum of costs filed by the defendant and respondent.

While the appellant argues earnestly that the doctrine of res ipsa loquitur applies in this case, we are forced to the conclusion from the evidence, or lack of evidence, that this doctrine is of doubtful application. It was not shown by competent expert testimony that it was a burn. Considering the accident and resulting injuries it is debatable whether the doctrine applies. It appears to us that the master servant doctrine does apply after a careful review of the testimony of the plaintiff's witnesses, Mrs. D. F. Clary and James H. Mix.

In Vonault v. O'Rourke, 97 Mont. 92, 106, 33 P.2d 535, 540, quoting from Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228, the court observed that 'The applicable doctrine of res ipsa loquitur furnishes prima facie evidence of any such negligence, entitling the plaintiff to have his case go to the jury, unless the circumstances are so satisfactorily explained by the defendant, as to cause the presumption of negligence to 'fade away in the face of contrary facts' (Welch v. All Persons, 85 Mont. 114, 278 P. 110, 115, or point to freedom from negligence 'with such certainty as to preclude any other reasonable hypothesis."

In Johnson v. Herring, 89 Mont. 420, 300 P. 535, 536, this court said that 'no case should ever be withdrawn from the jury, declared by statute to be the sole judges of the facts, unless the evidence is susceptible of but one construction by reasonable men, and that in favor of defendant, or where the evidence is in such a condition that, if the jury were to return a verdict in favor of the plaintiff, it would become the duty of the court to set it aside.'

Appellant contends that the defendant is responsible for the acts of the nurse and bases his contention on the following language from Ales v. Ryan, 8 Cal.2d 82, 105, 64 P.2d 409, 420:

'A physician is answerable for the acts of another, operating jointly, for the acts and omissions of the other which, exercising reasonable diligence, he should have observed. * * * The same rule would apply to nurses working under his direction.'

There, however, the failure of the nurses to count the sponges was during the operation and in the very presence of the surgeon operating. Certainly the surgeon has exclusive control of the nurses in surgery and while he is there. The same is true while the nurses are with the patient in his presence. But, distinguishing between that case and the instant cause, the nurses become the temporary servants or agents of the surgeon in charge while the operation is in progress.

The rule is thus laid down in 48 C.J., Physicians and Surgeons, P. 1137, Sec. 144: 'A physician is not liable for the negligence of hospital or other nurses, attendants, or internes, who are not his employees, if he has no knowledge thereof, or has no connection therewith, or if it is not discoverable by him in the exercise of ordinary care, or unless he is negligent in permitting them to attend the patient.' See also, 70 C.J.S. Physicians and Surgeons Sec. 54.

Appellant also cites the cases of Aderhold v. Bishop, 94 Okl. 203, 221 P. 752, 60 A.L.R. 137, which holds that where a hospital nurse, although not in the regular employ of an operating surgeon, is under his special surpervision and control during the operation, the relation of master and servant exists and the surgeon is liable under the doctrine of respondeat superior for the nurse's negligence.

In the instant...