Favalora v. Aetna Cas. & Sur. Co.

• Decision Date: 29 June 1962
• Docket Number: No. 5575,5575
• Citation: 144 So.2d 544
• Court: Court of Appeal of Louisiana — District of US
• Parties: Alma P. FAVALORA v. AETNA CASUALTY & SURETY COMPANY et al.

Page 544

144 So.2d 544

Alma P. FAVALORA v.AETNA CASUALTY & SURETY COMPANY et al.

No. 5575.

Court of Appeal of Louisiana, First Circuit.

June 29, 1962.

Rehearing Denied Sept. 25, 1962.

Certiorari Denied Nov. 8, 1962.

Frank W. Middleton, Jr.(of Taylor, Porter, Brooks, Fuller & Phillips), Baton Rouge, for defendant-appellant.

Kantrow, Spaht & Kleinpeter, by Robert L. Kleinpeter, Baton Rouge, for defendant-appellee.

Boris F. Navratil, Baton Rouge, for plaintiff-appellant.

Before LOTTINGER, LANDRY and REID.

LANDRY, Judge.

Having sustained personal injuries as the result of a fall in the radiology room of the Baton Rouge General Hospital, plaintiff, Alma P. Favalora, instituted this action against Dr. Richard C. Boyer, Radiologist; Aetna Casualty & Surety Company(sometimes hereinafter referred to as 'Aetna'), Boyer's insurer; The Baton Rouge General Hospital (sometimes hereinafter referred to as 'the Hospital'); and Hartford Accident and Indemnity Company(sometimes hereinafter referred to as 'Hartford'), liability insurer of the Hospital, to recover damages for the injuries thus sustained and related medical expense.An exception of no right and no cause of action (predicated on the ground of charitable immunity) was filed on behalf of the Hospital and sustained by the court below.After trial on the merits judgment was rendered in favor of plaintiff and against defendant Aetna in the aggregate of $20,659.28.Plaintiff's demand was rejected as to defendants Boyer and Hartford.

Aetna has appealed contending (1) that the judgment against it was erroneous because its insured, Boyer, was free of negligence; and (2) alternatively, judgment should be rendered against defendants Aetna and Hartford, in solido because a partnership allegedly existed between Boyer and the Hospital thereby rendering the Hospital's insurer liable.Plaintiff has appealed devolutively praying (1) that the award for personal injuries in her favor be increased from $12,500.00 to $15,000.00; (2) that she recover judgment against defendants, Boyer, Aetna and Hartford, in solido and (3) that the fees of certain medical experts who testified on the trial of this matter be increased.It is conceded by all parties that the Hospital may not be cast in judgment because of its exemption from tort liability under the doctrine of charitable immunity.Hartford also concedes that the immunity of its said insured may not be plead in defense of plaintiff's claim against said insurer.

The issues presented by these appeals are as follows:

(1) Aetna and Hartford contend that the accident and resulting injury to plaintiff did not occur by virtue of any negligence or lack of ability, care, skill or diligence on the part of the radiologist (Dr. Boyer) or any of the hospital personnel; (2)Plaintiff maintains the injury sustained resulted from the negligence of both the radiologist and certain hospital personnel thereby rendering the hospital liable in solido with Dr. Boyer and the latter's insurer, Hartford; alternatively, plaintiff maintains solidary liability existed between the radiologist Boyer and the Hospital; (3) Hartford contends that if a partnership relationship existed between the radiologist and the Hospital it was not of the type which imposed solidary liability upon its members; (4) The question of quantum; plaintiff seeks an increase in the award while defendants alternatively pray for a reduction therein; and (5) An increase in the fees awarded the medical experts, Doctors Tanna and Halley.

On July 15, 1959, plaintiff, who was then 71 years of age and engaged in the operation of a small mercantile establishment, consulted her regular physician, Dr. Jerome F. Tanna, whose field is general surgery, complaining of stomach pains, general fatigue and an episode of fainting or 'passing out'.Believing that plaintiff was in need of a general check up, Dr. Tanna admitted her to the Baton Rouge General Hospital on the evening of July 15, for X-ray and fluoroscopic examination of the chest, gall bladder and gastrointestinal tract (known as a G. I. Series) the following day.Hospitalization was required because the gall bladder and G.I. series examinations desired by Dr. Tanna necessitated preparations consisting of fasting from the previous evening meal until the examination the ensuing morning and the ingestion of six dye tablets the night before the examination to enable the taking and interpretation of the X-rays ordered by plaintiff's said physician.At the time plaintiff entered the Hospital she was fully ambulatory.Her hospitalization was in no way due to physical incapacity nor was she institutionalized for treatment of any nature.

The morning following her admission to the hospital, Mrs. Favaloro though ambulatory was taken from her room in a wheel chair to the X-ray or radiology department.Chest and gall bladder X-rays were made the last of which, according to normal practice and procedure was taken with plaintiff in a prone position on a stretcher which device the record shows to be in reality a wheeled cart.Plaintiff was then taken into the hall outside where she remained lying on the stretcher while the radiology room was readied for the G.I. series scheduled by Dr. Tanna.When preparations for the G.I. series were completed, two technicians, whose duty it was to assist the radiologist, brought plaintiff into the X-ray room on the stretcher and helped plaintiff off the stretcher by means of a footstool.Plaintiff then walked a few feet to a nearby chair on which she sat to await the arrival of the radiologist.One of the technicians left the room taking the stretcher with him.

The radiologist, Dr. Richard C. Boyer, then entered the room and was introduced to plaintiff by the technician.Plaintiff was then instructed to walk to the X-ray table and stand on the footboard.The record shows an X-ray table to be a mechanical device upon which the patient either stands or lies while undergoing X-ray examination.It is so constructed that it can be tilted at any angle from horizontal to vertical.It has a footboard or step on one end to support the weight of the patient when X-rays are taken in a vertical position.With the table aligned for a vertical picture or X-ray, the patient stands upon the footboard which in this position is approximately one and one-half inches above the floor.In the vertical position the patient stands with his back to the table facing the radiologist who is normally seated facing the fluoroscopic screen which is placed between the patient and the radiologist.The examination procedure does not require that the radiologist keep his hands on the patient at all times although it does necessitate his frequently touching the patient for palpation or to alter the patient's position so that the patient may be viewed from the various angles which the examination demands.Within easy reach of the radiologist is situated a switch which turns off the room lights and simultaneously places the fluoroscope in operation and also a control by which he may manipulate the X-ray table to any desired angle.When the room lights are turned off sufficient light is provided from the fluoroscopic screen and a dim overhead light which remains burning that a dim outline of the patient may be seen at all times.With plaintiff in the vertical position described, the technician handed her a glass of barium which the examination required that she swallow, the room lights were turned off, plaintiff was instructed to drink the barium and an X-ray picture was taken of her esophagus.A second cup of barium was handed plaintiff by the technician who then took the exposed film to a nearby pass-box leading to the adjacent dark room, obtained a new film and the X-ray process repeated.While the technician was depositing the second exposed film in the pass-box, plaintiff suddenly and unexpectedly fainted and fell to the floor.Dr. Boyer was unable to recall whether he was looking into the fluoroscopic screen at the time plaintiff's image suddenly disappeared or whether his attention was momentarily diverted from plaintiff by some phase of the examination procedure.In any event, he did not see plaintiff fall nor did he detect any evidence of distress.The technician present heard Dr. Boyer exclaim and heard a noise.He immediately turned on the lights and saw plaintiff lying on her side on the floor.

Dr. Boyer instantly began administering to plaintiff while the technician summoned additional assistance.Plaintiff was placed on the X-ray table and X-rays were taken of those portions of plaintiff's anatomy which indicated the possibility of injury, namely, her skull, shoulder and pelvis.The pictures revealed a fracture of the neck of the right femur which subsequently required open reduction and the insertion of a metal pin or nail by an orthopedic surgeon.As a result of the immobilization and hospitalization for her injuries, a pre-existing vascular condition was aggravated causing a pulmonary embolism which in turn necessitated additional surgery for the litigation of the inferior vena cava which the record shows to be a rather large deep-seated vein situated in the lower extremities.

Certain procedures required during plaintiff's hospitalization for her injury and the complication attributable thereto resulted in a kidney infection which further prolonged her institutionalization and resulted in total medical expenses of $8,159.28.

To escape liability herein defendants rely upon the pronouncements contained in Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781, which states the duty of care owed by a physician to his patient to be as follows:

'(1) A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible.As a general rule it is his duty to exercise the degree of skill ordinarily...