Fridena v. Evans
| Decision Date | 02 December 1980 |
| Docket Number | No. 14678,14678 |
| Citation | 622 P.2d 463,12 A.L.R.4th 46,127 Ariz. 516 |
| Court | Arizona Supreme Court |
| Parties | , 12 A.L.R.4th 46 Cristine FRIDENA, Administratrix for the Estate of Daniel Fridena, Jr., and Physicians & Surgeons Hospital, Inc., an Arizona Corporation, Appellants, v. Sharon J. EVANS, a married woman dealing with her sole and separate property, and Josephine C. Fenn, a single woman, Appellees. |
Murray Miller, P. C., by Murray Miller, Phoenix, for appellant, Cristine Fridena.
O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P. C. by Ralph E. Hunsaker, J. Tyrrell Taber, P. Michael Whipple, Phoenix, for appellant Physicians & Surgeons Hospital, Inc.
Rawlins, Ellis, Burrus & Kiewit by James W. Hill, Phoenix, for appellees.
Appellants Cristine Fridena, Administratrix for the Estate of Dr. Daniel Fridena, Jr., and Physicians & Surgeons Hospital, Inc., appeal from a judgment entered against them in a medical malpractice action. We have jurisdiction pursuant to Rule 19(e), Arizona Rules of Civil Appellate Procedure, 17A A.R.S.
The essential facts are that Sharon Evans, when she was 15 years old, was involved in a motorcycle-automobile accident in June of 1966. As a result of this accident she sustained serious injury to her right femur. Dr. Fridena, a doctor of osteopathy and an orthopedic surgeon, performed surgery on Mrs. Evans at which time he inserted a pin into her leg and hip. After surgery, it was noted that her right leg was 11/2 inches shorter than her left leg.
In January of 1967, at Physicians & Surgeons Hospital, Inc., a second operation was performed by Dr. Fridena in which he attempted to lengthen her shortened right leg. The technique used by Dr. Fridena involved the bisecting of the middle of the right femur and the inserting of a bone graft in an attempt to lengthen the leg. Rather than lengthening the leg, however, it became further shortened so that it is now 3 inches shorter than the left leg. The second operation forms the basis for the medical malpractice action brought by the plaintiffs.
Originally, suit was brought against the Estate of Dr. Fridena, Physicians & Surgeons Hospital, Inc., and Dr. Bernhard, appellees' family physician who assisted in the operation. Prior to trial, the hospital and Dr. Bernhard made a joint motion for summary judgment which was granted by the court. On appeal, the summary judgment was affirmed as to Dr. Bernhard and reversed in part as to the hospital. Evans v. Bernhard, 23 Ariz.App. 413, 533 P.2d 721 (1975).
The matter proceeded to trial and the hospital again moved for a directed verdict on the grounds that there was no evidence to prove that Dr. Fridena was an agent or an employee of the hospital during the performance of the operation on Mrs. Evans. The trial court denied the motion of the defendant hospital and ruled that the evidence established that the relationship between the hospital and Dr. Fridena was such that, as a matter of law, the negligence of Dr. Fridena would also be the negligence of the hospital.
At the conclusion of the trial, the jury returned a verdict against the Estate of Dr. Fridena and the Physicians & Surgeons Hospital, Inc., and awarded $300,000.00 to the plaintiff, Sharon Evans.
The issues raised on appeal are:
1. Did the trial court err in finding Physicians & Surgeons Hospital, Inc., liable for the negligent supervision of Dr. Fridena?
2. Should appellees' expert witness, Dr. Warren Colton, a medical physician and an orthopedic surgeon, have been allowed to testify concerning the standard of care applicable to Dr. Daniel Fridena, an osteopathic physician and an orthopedic surgeon?
3. Was there error in the trial court's refusal to allow the defendants to question the plaintiffs regarding a prior complaint?
4. Did the trial court abuse its discretion in allowing the plaintiffs to testify concerning conversations they had had with the now deceased Dr. Fridena?
5. Was there error in the instructions given to the jury?
6. Was the verdict excessive?
The first issue is whether the hospital should be held liable. The hospital argues that Dr. Fridena was an independent contractor and not an agent or employee of the hospital during his performance of surgery upon Mrs. Evans. The hospital contends that under the general principles of respondeat superior it should not be held liable for the negligent actions of an independent contractor.
It is true that a physician generally functions as an independent contractor because he is free to exercise his own skill and judgment in rendering medical or surgical services without interference. See 40 Am.Jur.2d Hospitals and Asylums § 28. The true issue is not, however, whether the hospital is vicariously liable as the hospital attempts to frame the issue, but whether the hospital should be held liable on the theory of negligent supervision.
The appellee contends that the hospital owes a duty to the public to only allow use of its facilities by professionally competent physicians who treat their patients with accepted medical procedures. She further argues that the hospital failed in its duty by allowing Dr. Fridena to perform the second surgery.
Traditionally a hospital was thought of as being merely the physical structure and furnishings in which physicians practiced their art. The physician was held solely responsible for the quality of medical service as opposed to the limited role of the hospital which was responsible for basic bed and board. See Southwick, The Hospital as an Institution Expanding Responsibilities Change Its Relationship with the Staff Physician, 9 Cal.Western L.Rev. 429, 430-31 (1973). In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls. See Kahn, Hospital Malpractice Prevention, 27 De Paul L.Rev. 23 (1977).
Among the cases indicative of the "emerging trend" is Purcell v. Zimbelman, 18 Ariz.App. 75, 500 P.2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a method of treatment or care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz.App. 165, 500 P.2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its staff. Tucson Medical Center, Inc. v. Misevch, 113 Ariz. 34, 545 P.2d 958 (1976). In Misevch, we pointed out that if the medical staff is negligent in supervising its members, the hospital itself would be held negligent.
The evidence presented at trial shows that Dr. Fridena held various positions in relationship to the hospital. He was the chief surgeon, the chairman of the board of trustees, the medical director, and the controlling stockholder as well as being the operating surgeon. In each of these roles, with the exception of his role as controlling stockholder and as operating surgeon, Dr. Fridena was an agent of the hospital.
For a hospital to be charged with negligence for the failure to supervise the quality of care or competence of its staff, it is necessary to show that the hospital had actual or constructive knowledge of the procedures carried on. See Tucson Medical Center, Inc. v. Misevch, supra. The appellant hospital argues that even if there was negligent conduct on the part of Dr. Fridena, they did not know about it. We disagree with the hospital, they in essence had the requisite notice.
There is a well established rule in the law of agency that a corporation is bound by the knowledge acquired by, or notice given to, its agents or officers which is within the scope of their authority and which is in reference to a matter to which their authority extends. This rule is based on a conclusive presumption that the agent will communicate to the corporation whatever knowledge or notice he receives in relation to his agency which is necessary for the protection of the interests of the corporation. See 19 Am.Jur.2d Corporations § 1263, at 669 (1965).
Evidence presented at trial indicated that in his various agency positions, Dr. Fridena had the responsibility of enforcing medical policy at the hospital and that he was the "ultimate person in control" of care. (T.R. 348-49, 372). Dr. Fridena's knowledge of the operation was imputable to the hospital because in his duties as chief surgeon, medical director and chairman of the board of trustees his knowledge was the knowledge of the hospital.
The appellants contend that no allegation concerning the hospital's negligent supervision of Dr. Fridena was made in the pleadings and that therefore, having failed to assert such a theory, it was thereby waived. In the amended complaint, however, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and assistance, and that the negligence of the defendants was the proximate cause of the patient's injuries. We find that such general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the...
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