Kemalyan v. Henderson
| Decision Date | 09 December 1954 |
| Docket Number | No. 32919,32919 |
| Citation | 45 Wn.2d 693,277 P.2d 372 |
| Parties | Homer L. KEMALYAN and Helen Faye Kemalyan, husband and wife, Respondents and Cross-Appellants, v. Dr. W. W. HENDERSON and Isabelle F. Henderson, husband and wife, Respondents, and Deaconess Hospital, a corporation, Appellant. |
| Court | Washington Supreme Court |
Cannon, McKevitt & Fraser, Spokane, for appellant.
John D. MacGillivray, Willard W. Jones, Spokane, Graves, Kizer & Graves, John E. Snoddy, Spokane, for respondents.
Plaintiffs brought this action against two defendants, a doctor and a hospital, to recover damages for injuries suffered by plaintiff wife during the administration of an anesthetic preparatory to a surgical operation in which her tonsils were to have been removed.
Throughout this opinion, in order to avoid confusion, we will refer to plaintiff wife as plaintiff, to the defendant, Dr. Henderson, as the doctor, and to defendant Deaconess Hospital, located at Spokane, as the hospital.
The trial court's instructions submitted to the jury the question of whether the nurse-anesthetist (employed by the hospital) was the agent of the hospital or the agent of the doctor while administering the anesthetic to plaintiff. The court also instructed the jury that plaintiff might recover under the doctrine of res ipsa loquitur if the jury found facts necessary to the application of that doctrine, or that plaintiff also might recover if the jury found that the nurse (as agent of either defendant) had committed specific acts of negligence.
A verdict for plaintiff, assessing her damages in the amount of $6,051.54, was returned against the hospital. The jury also returned a verdict for the doctor and against plaintiff.
Motions for judgment notwithstanding the verdict, or for a new trial, were made by the hospital and denied by the trial court. Judgment in the amount of $6,051.54 was entered for plaintiff against the hospital.
Plaintiff also moved for judgment notwithstanding the verdict, or for a new trial, in her action against the doctor. The motions were denied, and a judgment of dismissal in favor of the doctor was entered.
Defendant hospital has appealed from the judgment against it, and plaintiff has cross-appealed from the judgment dismissing the action as to the doctor.
Plaintiff's cross-appeal is prosecuted only on a contingent basis inasmuch as she urges this court to reverse the judgment of dismissal in favor of the doctor only in the event of a reversal of her judgment against the hospital. Consequently, since an affirmance of the judgment against the hospital would automatically dispose of the cross-appeal, we will first consider the hospital's appeal.
The hospital has made twelve assignments of error which raise these issues: (1) Did the trial court err in refusing to grant the hospital's motions for a directed verdict or for judgment n. o. v. on grounds that the evidence conclusively proved, as a matter of law, that the nurse-anesthetist was the agent of the doctor and not of the hospital? (2) Did the court err in instructing the jury on the doctrine of res ipsa loquitur? (3) Did the court err in allowing three surgeons to testify, over objections by the hospital, that it was the custom of surgeons in that locality to rely wholly on the anesthetists supplied by hospitals, and that they customarily did not exercise any supervision over such anesthetists?
This court is fully committed to the rule that a motion for a directed verdict, or for judgment notwithstanding the verdict, admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party. Myers v. Little Church by the Side of the Road, 37 Wash.2d 897, 227 P.2d 165; Olsen v. White, 37 Wash.2d 62, 221 P.2d 542.
We likewise follow the rule that in ruling upon a challenge to the sufficiency of the evidence, a motion for directed verdict or a motion for judgment notwithstanding the verdict, no element of discretion is involved, and the trial court can grant such motions only when it can be held as a matter of law that there is no evidence nor reasonable inference from evidence to sustain the verdict. Williams v. Hofer, 30 Wash.2d 253, 191 P.2d 306.
The facts in this case, viewed most favorably to the plaintiff, may be summarized thus:
Plaintiff, a trained nurse, needed to have her tonsils removed. She was referred by Dr. Newman, her family physician, to defendant Dr. Henderson, an eye, ear, nose and throat specialist. Plaintiff was allergic to novocaine, and consequently asked to be given a general anesthetic (ether) rather than a local anesthetic (novocaine).
On October 24, 1951, Dr. Henderson arranged to have plaintiff enter the Deaconess hospital on October 26, 1951, for an operation for the removal of her tonsils. He arranged for the use of an operating room at the hospital and requested the hospital to provide an anesthetist to administer a general anesthetic. Until the doctor entered the operating room immediately prior to going to the 'scrub room' to sterilize his hands, he did not know which nurse-anesthetist would be assigned for that purpose.
When the doctor entered the operating room on the morning of October 26, 1951, plaintiff was in the room. The doctor indentified her as his patient to Miss Esther Rudkin, the nurse-anesthetist assigned by the hospital to administer the anesthetic. Miss Rudkin was a specialist in giving anesthetics, having taken a special course to qualify her for that work. She had been actively engaged in her profession as a nurse-anesthetist for more than twenty-three years, and had been so employed at Deaconess hospital in Spokane for twenty years. She had previously served as anesthetist for Dr. Henderson many times in tonsillectomy cases, and he considered her well trained and qualified as an anesthetist.
After telling Miss Rudkin that plaintiff was to be given a general anesthetic (which meant ether), the doctor left the operating room to go to the scrub room. Hospital rules required him to spend at least ten minutes there sterilizing his hands. While he was out of the operating room, Miss Rudkin, as was her usual custom, began to put the patient (plaintiff) to sleep by anesthetic. The anesthetist first administered vinethene by the drop method, using a facial mask, until plaintiff 'went to sleep.' Then, she connected a rubber tube, called a nasal catheter, to the ether machine and inserted the tube in one of plaintiff's nostrils, pushing the tube in a distance of between three and a half and four inches. The nasal catheter, or tube, was to be used to administer a mixture of ether and air directly into plaintiff's lungs to keep her properly anesthetized during the operation. Use of a nasal catheter was the usual and normal procedure during such operations.
Miss Rudkin had connected the rubber tube to the ether machine and had inserted the tube in plaintiff's nose before Dr. Henderson first noticed plaintiff after he returned to the operating room from the scrub room. The doctor seated himself on a small stool six or eight feet away from the operating table and waited for the nurse-anesthetist to tell him that plaintiff was ready to be operated upon. In about three minutes Miss Rudkin indicated that she thought plaintiff was ready. The doctor got up and picked up a mouth gag, which is an instrument made of metal used to hold a patient's mouth open by mechanical means during a tonsillectomy.
As the doctor and Miss Rudkin worked to insert the mouth gag in plaintiff's mouth, Miss Rudkin decided that plaintiff was not sufficiently anesthetized to start the operation, since there were still reflexes in plaintiff's throat, and there was some difficulty in inserting the mouth gag. Consequently, Miss Rudkin so advised the doctor and suggested that plaintiff needed some more anesthetic. The doctor went back to the stool and sat down again. Miss Rudkin regulated the ether machine so as to cause it to admit a greater volume of the ether-impregnated air through the nasal catheter. After about a minute, Miss Rudkin noticed that plaintiff's abdomen seemed quite prominent and called the doctor's attention to that fact. Miss Rudkin immediately turned off the ether machine and removed the nasal catheter.
Plaintiff's tonsils were not removed. She was taken out of the operating room and placed in a hospital bed. When she regained consciousness, she discovered that her abdomen was greatly distended, and she was suffering from a great deal of pain and internal distress. X-rays later disclosed that free air and gas had somehow penetrated the viscus of her stomach, or intestines, and had collected in the abdominal cavity. She was discharged from the hospital eleven days later. Since there is no question involved concerning the extent of her injuries, we omit a description of her physical condition, except to say that at that time her abdomen was greatly distended and she was still suffering a great deal of pain.
After she was discharged from the hospital, plaintiff moved to California where she was treated by Dr. Gordon Lamb, an internal specialist, who obtained a history of the incident which caused the injury to plaintiff from the hospital and Dr. Henderson.
On the issue of whether, while administering the anesthetic, Miss Rudkin was the agent of the hospital, which employed her, or of Dr. Henderson, who was to perform the operation on plaintiff, Miss Rudkin's testimony (that part of it most favorable to plaintiff's case against the hospital) was as follows:
'Q. * * * Dr. Henderson was out of the surgical room for at least ten minutes while you were proceeding with the anesthesia? A. That is right.
'Q. And Dr. Henderson, before he left the room, gave you no directions or exercised any supervision over...
To continue reading
Request your trial
-
Jackass Mt. Ranch, Inc. v. S. Columbia Basin Irrigation Dist.
...exculpatory explanation for the cause of the injury in question, then res ipsa loquitur is not applicable. Kemalyan v. Henderson, 45 Wash.2d 693, 704–05, 277 P.2d 372 (1.954). ¶ 67 JMR contends the trial court erred by dismissing the negligence claim on summary judgment because JMR establis......
-
Voss v. Bridwell
...to prove specific acts of negligence on the part of the defendants would not deprive the plaintiff of such right. See, Kemalyan v. Henderson, 45 Wash.2d 693, 277 P.2d 372. The following language was used in Emrie v. Tice, 'It has been said where specific acts of negligence are proved the do......
-
Pacheco v. Ames
...73 Wash.2d 476, 482, 438 P.2d 829 (1968) (citing Pederson v. Dumouchel, 72 Wash.2d 73, 81, 431 P.2d 973 (1967)); Kemalyan v. Henderson, 45 Wash.2d 693, 702, 277 P.2d 372 (1954). The doctrine permits the inference of negligence on the basis that the evidence of the cause of the injury is pra......
-
Vira v. Smith, No. 54628-7-I (WA 7/25/2005)
...91 Wn.2d 155, 159-60, 588 P.2d 734 (1978); Douglas v. Bussabarger, 73 Wn.2d 476, 482, 438 P.2d 829 (1968); Kemalyan v. Henderson, 45 Wn.2d 693, 702, 277 P.2d 372 (1954)). 29. A.C. ex rel. Cooper v. Bellingham Sch. Dist., 125 Wn. App. 511, 517, 105 P.3d 400 (2004) (citing Tinder v. Nordstrom......