Hendley v. Evans

• Decision Date: 21 November 2012
• Docket Number: No. A12A1218.,A12A1218.
• Citation: 734 S.E.2d 548
• Parties: HENDLEY et al. v. EVANS et al.
• Court: Georgia Court of Appeals

734 S.E.2d 548

HENDLEY et al.

v.EVANS et al.

No. A12A1218.

Court of Appeals of Georgia.

Nov. 21, 2012.

Berrien L. Sutton, Homerville, Brent Jamieson Savage Jr., Brent J. Savage, Savannah, for Appellants.

Gregory Tyson Talley, Valdosta, Alphonso Avery Howell IV, for Appellees.

McFADDEN, Judge.

Joan and John Hendley sued Glenn Evans, M.D. and his employer, Valdosta Medical Clinic, P.C.(the defendants), for medical malpractice.The Hendleys contend that Joan Hendley suffered a vessel collapse during a medical procedure performed by Dr. Evans.They contend that Joan Hendley sustained brain damage and other physical injuries as a result of acts and omissions of Dr. Evans and of hospital personnel who were working under Dr. Evans's supervision at the time of the collapse.A jury returned a defense verdict, upon which the trial court entered judgment.The Hendleys appeal.

The Hendleys argue that the trial court erred in failing to give any of several jury charges they requested on the issue of Dr. Evans's potential vicarious liability for the acts and omissions of hospital personnel.We agree that the trial court was required to charge on this theory of recovery, and accordingly we reverse.

We find no merit, however, in the Hendleys' arguments that the trial court erred in failing to give other requested charges on evidentiary presumptions and circumstantial evidence or in giving Dr. Evans's requested charge on accepted risk.Finally, in light of our disposition and given the impending change to Georgia's evidence rules, we do not address the Hendleys' claim that the court erred in excluding as hearsay certain witness testimony that they argued was subject to the res geste exception.

1.Facts and proceedings below.

The trial evidence showed that on November 9, 2005, a doctor in Dr. Evans's practice performed a diagnostic heart catheterization procedure on Mrs. Hendley at a hospital.During the catheterization procedure, that doctor decided that Mrs. Hendley also should undergo an angioplasty procedure to insert stents into some of her blood vessels.

Dr. Evans performed the angioplasty procedure.During that procedure, Mrs. Hendley's blood pressure dropped and one of her blood vessels collapsed.Dr. Evans then called a “Code Blue.”Hospital personnel in the operating room performed CPR on Mrs. Hendley and, after multiple attempts, intubated her.During the Code, however, Mrs. Hendley's oxygen saturation dropped to a dangerous level.The Hendleys presented evidence that she sustained some brain damage from lack of oxygen following the vascular collapse.

Mrs. Hendley remained intubated for several weeks after the Code due to complications, and after several unsuccessful attempts at extubation she underwent a tracheotomy.The doctor who performed the tracheotomy found damaged tissue and scarring in her esophagus.The Hendleys presented evidence that this scarring was a complication of the multiple intubation attempts and prolonged intubation.After continued complications and additional surgeries, Mrs. Hendley's voice box was removed and she is now permanently dependent on a tracheostomy.

2.Jury charges.

The Hendleys argue that the trial court erred in denying their requests for jury charges on the following issues: the borrowed servant doctrine, respondeat superior, agency, imputed negligence, evidentiary presumptions arising from a party's failure to produce evidence or witness testimony, and circumstantial evidence.They also argue that the trial court erred in giving the defendants' requested charge on accepted risk.

“A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject.”(Citations and punctuation omitted.)Gates v. Navy,274 Ga.App. 180, 183(4), 617 S.E.2d 163(2005).A trial court may deny a specific request to charge if any portion of the request is inapt or incorrect, because a request to charge must be “correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case.”(Citation omitted.)Lifestyle Family, L.P. v. Lawyers Title Ins. Corp.,256 Ga.App. 305, 311(3), 568 S.E.2d 171(2002).Nevertheless, “[a]trial court must instruct a jury on the law as to every controlling, material, substantial and vital issue in the case.The failure to charge on a properly asserted and legally cognizable theory of recovery, whether requested or not, or attention be called to it or not, is harmful as a matter of law.”(Citations and punctuation omitted.)Duffield v. Chui,314 Ga.App. 214, 214–215, 723 S.E.2d 506(2012).AccordTempo Mgmt. v. Lewis,210 Ga.App. 390, 391(1), 436 S.E.2d 98(1993).

(a)The trial court erred in failing to charge the jury on Dr. Evans's potential vicarious liability for the negligence of hospital personnel.

Concerning the issue of Dr. Evans's vicarious liability, the Hendleys sought that the jury be charged on the borrowed servant doctrine or, alternatively, be given the pattern charges on respondeat superior, agency and imputed negligence.The trial court, however, declined to give any of these requested charges, and its final charge did not instruct the jury on the issue of Dr. Evans's possible vicarious liability.

As detailed below, the trial court did not err in declining to give the specific charge that the Hendleys requested on the borrowed servant doctrine, because it was not a fully accurate statement of the law.The Hendleys, however, presented some evidence from which a jury could find Dr. Evans vicariously liable for the negligent acts and omissions of hospital personnel, and the trial court was required to instruct the jury on this theory of the Hendleys' case.The court's failure to give any instruction on vicarious liability was reversible error.

(i) A doctor may be found liable under the theory of respondeat superior for the negligent acts of his employees.SeePacker v. Gill,193 Ga.App. 388, 390(4), 388 S.E.2d 338(1989).“[T]he traditional definitionof ‘employee’ ... has for at least a century contained within its purview borrowed servants.”Summerlin v. Ga. Pines Community Svc. Bd.,286 Ga. 593, 595(2), 690 S.E.2d 401(2010).“Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him.”(Citations omitted.)Merry Bros. Brick, etc., v. Jackson,120 Ga.App. 716, 719, 171 S.E.2d 924(1969);seeSummerlin,286 Ga. at 594(2), 690 S.E.2d 401(“borrowed servants are employees of the borrowing employer”)(citations omitted).

Accordingly, the borrowed servant doctrine “is applied in the context of the tort doctrine of respondeat superior.”Summerlin,286 Ga. at 596(2), 690 S.E.2d 401;seeStaffing Resources v. Nash,218 Ga.App. 525(1), 462 S.E.2d 401(1995).It is a means of transferring the vicarious liability for an employee's negligence from a lending employer to a borrowing employer.SeeHoffman v. Wells,260 Ga. 588, 590(2), 397 S.E.2d 696(1990)(discussing borrowed servant doctrine as effecting a transfer of vicarious liability);Ross v. Chatham County Hosp. Auth.,258 Ga. 234, 367 S.E.2d 793(1988)(same).

The requirements for the borrowed servant doctrine to apply

are well settled in this state[.]In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant.Six Flags Over Ga. v. Hill,247 Ga. 375, 377(1), 276 S.E.2d 572(1981).

(Punctuation omitted.)Tim's Crane & Rigging v. Gibson,278 Ga. 796, 797, 604 S.E.2d 763(2004).The three prongs of this test “focus on the occasion when the injury occurred rather than the work relationship in general.”(Punctuation omitted.)Stephens v. Oates,189 Ga.App. 6, 7(1), 374 S.E.2d 821(1988);seeBerry v. Davis Feed & Seed,237 Ga.App. 768, 770, 516 S.E.2d 812(1999)(as to the third prong, “the temporary employer's exclusive power to discharge must relate only to the temporary assignment”)(citation and punctuation omitted).

A number of Georgia cases have explored the parameters of this basis for imputing liability in the context of a hospital operating room.In Miller v. Atkins,142 Ga.App. 618, 236 S.E.2d 838(1977), and its progenywe explained that “where a hospital yields control of its employees to a surgeon in the operating room, and the surgeon exercises immediate personal supervision over those employees, then he becomes their master, and their negligence during the course of the master-servant relationship will be imputable to him.”(Emphasis supplied.)Id. at 619, 236 S.E.2d 838.AccordMcClure v. Clayton County Hosp. Auth.,176 Ga.App. 414, 418(3), 336 S.E.2d 268(1985);Swindell v. St. Joseph's Hosp.,161 Ga.App. 290, 291(1), 291 S.E.2d 1(1982).Our Supreme Court, in Ross v. Chatham County Hosp. Auth.,258 Ga. 234, 367 S.E.2d 793(1988), reaffirmed this principle regarding the transfer of vicarious liability for the negligence of hospital employees from the hospital to an operating room doctor pursuant to the borrowed servant doctrine.Id. at 234–235(1), 367 S.E.2d 793.The Court held in Ross that a hospital seeking to defend a medical malpractice claim based upon the negligent acts of its employees during a surgical procedure performed in a hospital operating room must show three things: (1) that the hospital yielded control of its employees who were assisting in the surgical procedure; (2) that the employees were under the immediate supervision of the surgeon; and (3) that the tasks performed by the employees involved professional skill and judgment.Id. at 235(1), 367 S.E.2d 793.

The defendants contend that Ross stands for the proposition that the borrowed servant doctrine may only be used...