Hodges v. Doctors Hospital

• Decision Date: 28 February 1977
• Docket Number: No. 53095,No. 2,53095,2
• Parties: A. J. HODGES et al. v. DOCTORS HOSPITAL
• Court: Georgia Court of Appeals

Page 116

234 S.E.2d 116

141 Ga.App. 649

A. J. HODGES et al. v. DOCTORS HOSPITAL.

No. 53095.

Court of Appeals of Georgia, Division No. 2.

Feb. 28, 1977.

Rehearing Denied March 21, 1977.

Gilbert & Blum, Fred A. Gilbert, David D. Blum, Atlanta, for appellants.

Zachary & Segraves, W. E. Zachary, Sr., Decatur, for appellee.

QUILLIAN, Presiding Judge.

The plaintiffs, husband and children of the deceased, sought recovery against the defendant hospital for negligent treatment resulting in the decedent's death. The case was tried and at the close of plaintiff's evidence a verdict was directed for the defendant. Appeal was taken from the judgment entered on the verdict. Held:

1. The motion to dismiss the appeal is not meritorious. Strese v. Strese, 237 Ga. 334, 227 S.E.2d 749, where the Supreme Court held that under Rule 11(c) waiver occurs, with regard to failure to comply with the Appellate Practice Act relating to the filing of the transcript, unless objection was made and ruled upon in the trial court prior to transmittal. Thus, where, as here, appellee's motion to dismiss the appeal was not ruled upon prior to transmittal, objection is waived.

2. The sole question raised by appellant is whether the evidence demanded a finding in favor of the defendant hospital. This necessarily involves a determination of whether the doctor who treated the deceased and whose alleged negligence caused the wrongful death was an employee of the hospital or was an independent contractor.

The appellee urges the applicability of the ruling found in Clary v. Hospital Authority, 106 Ga.App. 134(1), 126 S.E.2d 470, and subsequently followed in Pogue v. Hospital Authority, 120 Ga.App. 230, 170 S.E.2d 53: "Ordinarily, a physician or surgeon on the staff of a hospital is not an employee of such hospital, and in the absence of allegations that the hospital was negligent in the selection of an unskilful physician or surgeon or that the hospital undertook to direct him in the way and manner of treating the patient, the hospital is not liable for the mere negligent performance of professional services by a physician or surgeon on its staff."

Contrary to the appellee's argument, the cases cited in Clary v. Hospital Authority, 106 Ga.App. 134, 135, 126 S.E.2d 470, 471, supra, do not support the blanket proposition that "the hospital is not liable for the mere negligent performance of professional services by a physician or surgeon on its staff." Furthermore, the cases referred to do not broadly hold that a doctor, as a matter of law, is an independent contractor. Instead Clary stands only for the principle that a physician on the staff of a hospital is not automatically an employee of the hospital and where a physician is an independent contractor the hospital is not liable for his negligent performance of professional services unless it negligently selected him or undertook to direct him in the manner and method of treating the patient. See Code § 105-502. We therefore do not interpret Clary as providing a rule deciding whether the hospital will be liable prior to a determination of whether the relation between the hospital and the doctor was that of master-servant or independent contractor. See e. g., Black v. Fischer, 30 Ga.App. 109, 111, 117 S.E. 103, petition failed to show doctor under direction of hospital; Tench v. Downey Hospital, Incorporated, 36 Ga.App. 20, 22, 135 S.E. 106, dicta; Timmons v. Fulton Bag and Cotton Mills, 45 Ga.App. 670, 166 S.E. 40, physician not agent but independent contractor; Mitchell County Hospital Authority v. Joiner, 229 Ga. 140, 141, 189 S.E.2d 412, doctor "serving on staff" (no holding that physician was employee or servant), decided on basis of negligent employment. Instead Clary, its predecessors and progeny, apply only after it is determined that there is an independent contractor relationship. Newton County Hospital v. Nickolson, 132 Ga.App. 164, 168(3), 207 S.E.2d 659.

In ascertaining what relation exists, the requirements are neither complex nor uncertain but their application is extremely difficult. The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. St. Paul-Mercury Indemnity Co. v. Alexander, 84 Ga.App. 207, 65 S.E.2d 694; Weiss v. Kling, 96 Ga.App. 618, 101 S.E.2d 178; Blair v. Smith, 201 Ga. 747, 41 S.E.2d 133.

Judge (now Justice) Jordan pointed out the inherent problems involved in Travelers Ins. Co. v. Moates, 102 Ga.App. 778, 781, 117 S.E.2d 924, 926: "Where the question of control is not discussed at the time the service is engaged, and where it never arises during performance, it is often exceedingly difficult to determine whether the employer had, or intended to reserve, such right. However, it has been held in a number of decisions that where one is employed generally to perform certain services for another, and there is no specific contract...