Hoffman v. Wells
| Decision Date | 16 November 1990 |
| Docket Number | S90A0793,Nos. S90A0792,s. S90A0792 |
| Parties | HOFFMAN v. WELLS. SOUTHWEST COMMUNITY HOSPITAL v. WELLS. |
| Court | Georgia Supreme Court |
Henry D. Green, Jr., H. Andrew Owen, Harman, Owen, Saunders & Sweeney, P.C., Atlanta, for Hoffman.
Jacqueline Bennett, William Q. Bird, David M. Brown, Smith, Gambrell & Russell, Maryellen Griffin, Atlanta, for Wells.
Stephen M. Forte, Elizabeth S. Haley, Smith, Gambrell & Russell, Atlanta, for appellant.
David M. Brown, Elizabeth S. Haley, Smith, Gambrell & Russell, Atlanta, for Southwest Community.
Henry D. Green, Jr., H. Andrew Owen, Harman, Owen, Saunders & Sweeney, P.C., Atlanta, for appellant.
This is an appeal from an action arising out of a surgical procedure performed on the wrong hand of the appellee, Flossie M. Wells. The jury returned a verdict in favor of the appellee, against the appellants, Joseph I. Hoffman, M.D. and Southwest Community Hospital (SWCH). Judgment was entered jointly against the appellants for $25,000 in compensatory damages and $62,500 in punitive damages, and against SWCH only for $5,000 in attorney fees. The appellants filed an appeal to the Court of Appeals which transferred the case to this court in accordance with Article VI, Section V, Paragraph V of the Constitution of the State of Georgia, 1983. 1 We affirm as to Dr. Hoffman and reverse as to SWCH.
1. Dr. Hoffman enumerates as error the denial of his motion for a directed verdict as to his liability for punitive damages since there was no evidence of malice or wilful misconduct. However, recovery of punitive damages may be authorized where the circumstances of the tort show an entire want of care and an indifference to consequences. Wilful and intentional misconduct is not essential. Hodges v. Effingham County Hosp. Auth., 182 Ga.App. 173, 355 S.E.2d 104 (1987). In this case there is sufficient evidence that the jury could have found that Dr. Hoffman's actions showed an entire want of care and an indifference to consequences. Evidence was presented that Dr. Hoffman's office recorded the wrong hand on Mrs. Wells' medical record on her first visit. Although Mrs. Wells visited him two more times before the surgery, and the doctor treated the affected hand, the error was never corrected. Furthermore the evidence showed that, prior to performing the surgery, Dr. Hoffman called his office and determined that the left hand was to be operated upon. However, after the surgery he was able to examine those same records and determine that he had operated on the wrong hand. From this the jury could have decided that Dr. Hoffman's actions showed such a lack of care as to rise to a conscious indifference to consequences. Accordingly, the trial court did not err by not directing a verdict in favor of Dr. Hoffman on the issue of punitive damages.
2. SWCH asserts as error the failure of the trial court to give the following charge to the jury:
that a hospital is liable for the negligence of its technicians, nurses or other employees only in the performance of administrative or clerical duties which, though constituting a portion of the patient's prescribed medical treatment, do not require the application of specialized technique or the understanding of skilled physicians or surgeons. If an employee makes errors of professional judgment rather than errors of an administrative or clerical nature, the hospital is not liable for those acts.
This requested jury charge is not a correct statement of law and it was not error for the trial judge to refuse it. Nevertheless, SWCH is not liable because the determination to proceed with the surgery was a medical decision made by Dr. Hoffman in the operating room.
A hospital owes a duty of reasonable care to its patients and is liable for the injuries negligently inflicted upon its patients by the nurses and other employees of the hospital. Piedmont Hospital v. Anderson, 65 Ga.App. 491, 492(3), 16 S.E.2d 90 (1941). Ordinarily, where a salaried employee of the hospital commits a negligent act within the scope of his or her employment, the hospital is liable under the traditional principles of respondeat superior. One widely recognized exception to the doctrine of respondeat superior is the "borrowed servant" rule. If a master lends his servants to another then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other. Since vicarious liability for the acts of servants depends upon the master's right of control over the acts of the servants, it is only logical that where employees are doing one job for two masters (in this case Dr. Hoffman and SWCH) both employers cannot have control over the actions of the employee at the same time. 2 Although it is the degree of control that is crucial to vicarious...
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