Foster v. Englewood Hospital Ass'n

• Decision Date: 20 May 1974
• Docket Number: No. 57246,57246
• Citation: 313 N.E.2d 255,19 Ill.App.3d 1055
• Parties: Dorothy FOSTER, Administrator of the Estate of Vercey Lee Foster, Deceased, Plaintiff-Appellant-Appellee, v. ENGLEWOOD HOSPITAL ASSOCIATION, a corporation, and Grace Meyer, Defendants- Appellants, and Evelyn P. Hausman and Continental Illinois National Bank and Trust Company of Chicago, etc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 255

313 N.E.2d 255

19 Ill.App.3d 1055

Dorothy FOSTER, Administrator of the Estate of Vercey Lee

Foster, Deceased, Plaintiff-Appellant-Appellee, v. ENGLEWOOD HOSPITAL ASSOCIATION, a corporation, and Grace

Meyer, Defendants- Appellants,

and

Evelyn P. Hausman and Continental Illinois National Bank and

Trust Company of Chicago, etc., Defendants-Appellees.

No. 57246.

Appellate Court of Illinois, First District, First Division.

May 20, 1974.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (John M. Moelmann, D. Kendall Griffith, and Stanley J. Davidson, Chicago, of counsel), for defendants-appellees-appellants.

James T. Demos, Chicago (William J. Harte and Philip J. Rock, Chicago, of counsel), for plaintiff-appellant-appellee.

Bernard E. Harrold, Kevin T. Martin, Wildman, Harrold, Allen & Dixon, Chicago, for defendants-appellees.

EGAN, Presiding Justice.

The plaintiff, Dorothy Foster, an administrator of the estate of Vercey Lee Foster, brought an action for wrongful death against the defendants, Englewood Hospital Association, Grace Meyer, a nurse, and Evelyn P. Hausman and Continental Illinois National Bank and Trust Company, co-executors of the estate of Dr. Charles Hausman, who died prior to suit. The plaintiff alleged that the negligent medical treatment by one or more of the defendants or Dr. Hausman was a proximate cause of death.

A jury returned a verdict in favor of the plaintiff against all defendants in the amount of $300,000. The court granted Hausman's estate's motion for judgment notwithstanding the verdict, but the post-trial motions of Grace Meyer and the Englewood Hospital Association were denied.

The plaintiff has appealed from the judgment notwithstanding the verdict in favor of Hausman's estate, and the defendants Grace Meyer and the Englewood Hospital Association have appealed from the judgment in favor of the plaintiff. The plaintiff contends that the trial court erred in entering judgment notwithstanding the verdict in favor of Hausman's estate because there was sufficient evidence demonstrating Dr. Hausman's negligence.

The only error assigned by the defendants Meyer and Englewood Hospital is the denial of their motion for a new trial which was based on an evidentiary ruling.

On July 23, 1969, Vercey Lee Foster injured his shoulder while playing football in a park near his home. The following morning he was admitted to the emergency room at Englewood Hospital. The first physician to examine him was Dr. Francisco Hernandez, who conducted a complete physical examination which revealed a possible dislocation of the left shoulder. Thereafter, Dr. Hernandez called the attending surgeon of the day, Dr. Henry Pimentel, who ordered X-rays. Dr. Pimentel conducted an examination and arrived at a diagnosis of a shoulder separation. Both doctors determined that Foster was otherwise healthy and normal, and surgery was prescribed.

The defendant, Grace Meyer, is a qualified anesthetist, who first saw Foster in the operating room the following day. He was brought in on a cart and appeared to be a little apprehensive. She had worked with Dr. Hausman many times before.

She began an intravenous solution of sodium pentothal into Foster's right arm at 10:25 a.m. The solution was mixed the previous Monday, but she did not know who mixed it. The dosage was given at one time, slowly, to observe the loss of lid reflex. The manufacturer of sodium pentothal recommends a test dosage, then a 60-second pause to observe the effect on the patient. She did not wait 60 seconds to watch the reaction. She gave him a larger dose because he was apprehensive. She then replaced the pentothal with a solution of dextrose in water. After that the patient received another anesthetic--penthrane, nitrous oxide and oxygen. A muscle relaxant, anectine, was also administered, after which she opened his mouth and placed a tube into his trachea. The patient then received penthrane, nitrous oxide and oxygen through the tube from a machine. After this was done, Dr. Hausman draped the patient from head to toe, leaving an opening for the surgery. The operation began at 10:35 a.m. and was completed in 15 minutes. Dr. Lontok and Dr. Villafria assisted Dr. Hausman.

Before and during the operation Meyer recorded Foster's blood pressure. It was as follows: at 10:20--150/80 with a pulse of 92; at 10:30--120/50 with a pulse of 90; at 10:40--120/50 with a pulse of 88; at 10:50--110/50 with a pulse of 88; at 11:00--100/50 pulse not recorded. Meyer first assisted the patient's breathing when she started the anectine at 10:25 a.m. He was breathing spontaneously, but shallowly, during the course of the operation, and she was assisting him by hand manipulation of the bag on the anesthetic machine. At 11:00 a.m., he was not breathing, and she was assisting him by totally controlling his aspiration. At 11:05 a.m. the operation closed, the patient's breathing was totally assisted, and Dr. Hausman left the operating room. From 11:05 to 11:10 Meyer continued controlling Foster's respiration, giving him oxygen. She then asked another nurse if a Bennett resuscitating machine was available in the recovery room because the Bennett gives better respiration than the hand controlled bag.

At 11:00 a.m., Foster's respiration was totally paralyzed. Meyer disconnected the anesthetic machine from the intubation tube. Foster was lifted from the operating table onto a cart. He still had the endotracheal tube in his mouth, and Meyer controlled his respirations with a high percentage of oxygen. She gave Foster an excess of the required amount of oxygen and then controlled and forced the respiration in order to build up a higher concentration of oxygen in the bloodstream. Meyer testified that this amount of oxygen would serve him for three minutes. The endotracheal tube was taken from Foster's mouth, and he was wheeled to the recovery room about 50 to 75 feet down a straight corridor. It took a minute or less to wheel him there. During the trip Foster's lungs were completely paralyzed, and he was not breathing.

Meyer connected the patient to the Bennett machine at which time his blood pressure was 80/50. This was the first time that she realized Foster was in serious difficulty. Foster's pulse could not be detected at 11:10 a.m., and he had no pulse reported at 11:15 a.m. At 11:20 a.m. he had no respiration and no blood pressure, and various doctors were attempting resuscitative procedures. He was reported expired at 12:15 p.m.

Dr. James Eckenhoff, a qualified anesthesiologist, in response to a hypothetical question, testified that the patient died from a lack of oxygen. He based his opinion on the fact that the patient needed continuous supportive respiration by controlled ventilation at all times and he did not have assisted ventilation until late in the case. The coroner's pathologist testified that his findings were compatible with death due to lack of oxygen.

The trial court granted the motion of Hausman on two grounds: 'the general insufficiency of the evidence' and the inadmissibility of the widow's testimony under the Evidence Act. Since we cannot tell what insufficiency the trial court was referring to, we will follow the battlelines that have been drawn in this court by the parties themselves.

The first question to be resolved is the law applicable to liability, that is, what standard of conduct is to be imposed on a surgeon when the negligent act that directly caused the injury was committed by a person employed by the hospital?

In Graham v. St. Luke's Hospital, 46 Ill.App.2d 147, 159, 196 N.E.2d 355, 361, the complaint charged that a nurse negligently injected a hypodermic needle nine days after a successful operation. At the time, the defendant surgeon was not present. In upholding a directed verdict for the surgeon, the court said: '(I)t is clear that a physician is not liable for the negligence of a nurse or intern, who are employees of a hospital And not under his personal control or supervision.' (Emphasis added.) The following rule is stated in 12 A.L.R.3d 1017, 1021, and the Graham case has been cited in support of it:

'An operating surgeon may be held liable for the negligence of an assisting nurse who is in the general employ of a hospital not owned or controlled by the surgeon where the alleged acts of negligence are done while the nurse is under the direct control or supervision of the surgeon.'

This rule has been recognized in 20 other jurisdictions, in one of which the surgeon is compared to the captain of a ship. (McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.) The basis for all the decisions upholding liability appears to be that the hospital employee becomes the 'borrowed servant' of the surgeon. See Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589; Aderhold v. Bishop, 94 Okl. 203, 221 P. 752; McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.

We are not persuaded of the fairness of a rule which would permit the invocation of the doctrine of respondeat superior for every act of negligence by an employee of the hospital simply because the employee came under the temporary supervision or control of the operating surgeon. As a practical matter, the personnel of the hospital and their abilities are often unknown to the surgeon. He may request the assignment of a particular person but usually has little voice in the selection of those who will assist him. The surgeon's own acts, which most directly affect the life and well being of a patient, charge him with his own awesome responsibility. He should not also be saddled with the role of guarantor of the patient's safety from the negligence of others.

Nor do we accept the rationale of those decisions based on the borrowed servant doctrine, which provides that an employee may with his acquiescence or consent be lent by his general employer to a third person for the rendition of a special service, and thereby become the employee of the latter in the performance of such...