Haven v. Randolph, Civ. A. No. 1930-66.

• Decision Date: 18 May 1972
• Docket Number: Civ. A. No. 1930-66.
• Parties: Roy C. HAVEN, Jr., et al., Plaintiffs, v. Judson G. RANDOLPH, M.D., et al., Defendants.
• Court: U.S. District Court — District of Columbia

342 F. Supp. 538

Roy C. HAVEN, Jr., et al., Plaintiffs, v. Judson G. RANDOLPH, M.D., et al., Defendants.

Civ. A. No. 1930-66.

United States District Court, District of Columbia, Civil Division.

May 18, 1972.

COPYRIGHT MATERIAL OMITTED

Melvin Belli, San Francisco, Cal., Leonard J. Keilp, Washington, D. C., for plaintiffs.

Wm. D. Maddux, Chicago, Ill., for Judson Randolph, M. D.

Frank J. Martell, Washington, D. C., for Allan Coleman, M. D.

Denver H. Graham, Washington, D. C., for the Children's Hospital.

FLANNERY, District Judge.

This case involves a claim of medical malpractice filed by minor plaintiff through his mother against the child's pediatrician, the operating surgeon and Children's Hospital. The matter now comes before the court on motions for directed verdicts proffered by each of the three defendants. Before ruling on these motions the court states for the record that it now modifies its previous rulings in regard to plaintiffs' Exhibits 33(a) through (g) in which it excluded from evidence all brochures and medicine package inserts proffered by plaintiffs, as being irrelevant. The court now admits into evidence that part of plaintiffs' Exhibit entitled "Retrograde Aortography." This Exhibit will be admitted into evidence over the various objections of the defendants previously noted and will be identified as plaintiffs' Exhibit 33(f) (1). Thus, the court has considered this document as well as other oral and physical evidence in reaching its decision. Moreover, although the remaining brochures and medicine package inserts are not formally in evidence, because counsel for plaintiffs has referred to them extensively in his argument and cross-examination, the court has considered these documents as well.

At the outset, the court notes that in considering the merits of a motion for a directed verdict the court must view the evidence in the light most favorable to the plaintiffs. Seganish v. District of Columbia Safeway Stores, Inc., 132 U.S.App.D.C. 117, 406 F.2d 653 (1968); Lord v. Lencshire House, Ltd., 106 U.S.App.D.C. 328, 272 F.2d 557 (1960). However, where the evidence presented by the plaintiffs is so weak that to submit it to a jury would be to allow them to speculate as to a defendant's negligence, a defense motion made at the conclusion of the plaintiffs' evidence should be granted. Law v. Virginia Stage Lines, Inc., 144 U.S.App.D. C. 115, 444 F.2d 990 (1971).

Plaintiffs allege two instances of negligence. First, plaintiffs assert that defendants were negligent in the performance of the testing operation, and second, plaintiffs assert that defendants were negligent in not fully advising the parents of the minor plaintiff of all of the possible dangers involved in the proposed medical procedures, before the parents gave their consent for the operation i. e., the so-called "doctrine of informed consent". The court quotes from plaintiffs' pretrial statement:

COUNT I—NEGLIGENCE

Defendant Randolph was negligent in his treatment of the minor plaintiff:

1. In performing a retrograde femoral arteriogram on said child when the same was not necessary in light of the child's physical condition and/or when the risks of such procedure greatly outweighed the benefits expected to be derived therefrom.

2. In using Winthrop Hypaque 50 per cent radiopaque medium (hereinafter referred to as "Hypaque 50%") in repeated test procedures.

3. In using Hypaque 50% on the minor plaintiff at all because of said child's medical history and physical condition.

4. In using Hypaque 50% in excessive dosages.

5. In using Hypaque 50% in repeated injections during the same procedure.

6. In failing to use Hypaque 50% according to manufacturer's specifications and warnings.

7. In failing to apprise himself of the proper use, technique, precautions, dosages, dangers and contraindications of Hypaque 50% in procedures he used on the minor plaintiff and/or once having apprised himself thereof, in disregarding the same without sufficient justification.

8. In failing to employ any premedication to avoid or minimize allergic reactions in the child.

9. In failing to use Hypaque 50% at body temperatures.

10. In failing to use Hypaque 50% in a manner consistent with the standards of the informed medical community at the time on the basis of the foregoing.

It is alleged that defendant Coleman was negligent in his treatment of the minor plaintiff in each of the same ways as set forth above with respect to defendant Randolph. Defendant Coleman's liability is likewise predicated upon the fact that defendant Randolph was the agent, servant or employee of defendant Coleman.

Alternatively, it is alleged that defendant Coleman was negligent in abandoning the care of the minor plaintiff to other persons without the consent of the adult plaintiffs. Likewise, that defendant Coleman was negligent in failing to keep himself informed of the procedures, techniques, medicines, drugs, mediums and treatments and the risks thereof to be used on the minor plaintiff by said other persons and in failing to apprise the adult plaintiffs thereof.

COUNT II—IMPROPERLY OBTAINED CONSENT

"Defendants Randolph and Coleman improperly obtained the consent of the adult plaintiffs for the performance of medical tests on their child by failing to advise them of the nature, manner, dangers, seriousness and contraindications of the procedures, equipment, drugs, medicines and testing mediums to be used. Defendant Coleman further represented to the adult plaintiffs that the tests to be made were no more risky than taking an aspirin. Both of said defendants likewise failed to inform the adult plaintiffs of the potential physical dangers to their child involved in the tests to be performed."

Before proceeding further, the court will consider the motion for a directed verdict filed by defendant Children's Hospital. Plaintiffs allege that defendant physicians acted as agents of the hospital. A hospital is liable for the acts of a physician only if he is employed by the hospital and/or acts as agent for the hospital. Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 204 F.2d 721 (1953); Stivers v. George Washington University, 116 U.S.App.D. C. 29, 320 F.2d 751 (1963).

It is clear that Dr. Coleman in no way could be construed as an agent of the hospital. He was a private pediatrician whose patient, the minor plaintiff, was in the hospital. Although Dr. Randolph, as Chief of Surgery, was in overall charge of patients who were admitted and who had no private physicians (so-called "staff cases") he also had private patients. The evidence in this case reflects that the minor plaintiff was such a private patient. Therefore, the defendant physicians were not agents of Children's Hospital and the doctrine of Respondeat Superior does not apply. Adams v. Boyce, 37 Cal. App.2d 541, 99 P.2d 1044, cert. denied, 311 U.S. 694, 61 S.Ct. 137, 85 L.Ed. 449 (1940); Mayers v. Litow, 154 Cal.App. 2d 413, 316 P.2d 351 (Calif.1957); Smith v. Duke University, 219 N.C. 628, 14 S.E.2d 643 (1941). When defendant physicians were treating minor plaintiff, they were exercising independent and individual professional skill and judgment. In Smith, supra, the court stated:

"The doctrine of respondeat superior does not apply to a physician who acts upon his own initiative, and in the exercise of his own judgment and skill, without direction or control of an employer, * * * and if there is negligence in the treatment of a patient on the part of a physician who is not the servant or employee of the hospital, and who is pursuing an independent calling, the responsibility is not that of the hospital, and there is no distinction in that respect between a visiting and a resident physician."

Children's Hospital assumed the responsibility of carrying out the doctor's instructions and did not render treatment except pursuant to the doctor's orders. See, Hohenthal v. Smith, 72 App.D.C. 343, 114 F.2d 494 (1940).

For these reasons, the motion for a directed verdict proffered by defendant Children's Hospital is granted as to both counts of the complaint.

The court now turns to the motions of defendants Coleman and Randolph.

In order to establish a prima facie case of medical malpractice, the plaintiffs must produce some evidence that the defendants have violated the standard of care then existing in the community and that this departure was the proximate cause of injury to the minor plaintiff. Price v. Neyland, 115 U. S.App.D.C. 355, 320 F.2d 674 (1963); Kosberg v. Washington Hospital Center, 129 U.S.App.D.C. 322, 394 F.2d 947 (1968); Stottlemire v. Cawood, 213 F. Supp. 897 (D.D.C.1963).

Looking first to plaintiffs' allegation of negligence in the performance of the operation, the court has not heard any...