Kober v. Stewart
| Decision Date | 08 August 1966 |
| Docket Number | No. 11082,11082 |
| Citation | 148 Mont. 117,417 P.2d 476 |
| Parties | KOBER and Kyriss, Plaintiffs and Appellants, v. John H. STEWART and Billings Deaconess Hospital, Defendants and Respondents. |
| Court | Montana Supreme Court |
Sandall, Moses & Cavan, Valerie W. Scott (argued), Billings, for appellants.
Jardine, Blewett, Stephenson & Weaver, Great Falls, Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, John Stephenson, Jr. (argued), Great Falls, for rerespondent.
Emma Kober and Louie H. Kyriss, Jr., as guardians of Louie H. Kyriss, Sr., brought suit against the Billings Deaconess Hospital and Dr. John H. Stewart for personal injuries suffered by Louie H. Kyriss, Sr., while a patient at the Billings Deaconess Hospital. The defendant-hospital made a motion for summary judgment based on the record. Briefs were submitted by both sides. The record before the court contained the depositions of Dr. John H. Stewart, Jo Anne Duffey, an X ray technician, Louie Kyriss, Sr., and Dr. Hoyer, as well as the hospital's answers to the interrogatories. Also, the radiology agreement between the hospital and The Billings Clinic, the hospital records pertinent to Mr. Kyriss' injuries, and the Standards of Hospital Accreditation were all made a part of the record before the lower court.
The lower court granted defendant-hospital's motion for summary judgment. The guardians for Mr. Kyriss filed exceptions to the court's order. A full hearing on the exceptions was held, and the exceptions were denied. The guardians for Mr. Kyriss now appeal the summary judgment granted to defendant-hospital.
Mr. Kyriss, Sr., was admitted as a patient to the Billings Deaconess Hospital on March 22, 1964. He was eighty years old. He had abdominal pains and the doctor on duty, Dr. Paul Hoyer, ordered that an 'abdominal series' of X rays be taken by the X ray department. He was taken from his hospital room to the X ray department by an X ray technician. When the technician was unable to get Mr. Kyriss to sit up she called for a nurses' aide. She took a flatplate X ray and chest X ray of Mr. Kyriss. Then Dr. John Stewart, one of the radiologists in charge of the diagnostic X ray department of the hospital, arrived while both technician and nurses' aide were still in the room.
Dr. Stewart told the X ray technician to move the overhead tube in a position for the taking of an up-right X ray. As she did this, Dr. Stewart lowered the 'fluroscopic screen' over the chest of Mr. Kyriss, who was still lying horizontally on the X ray table. The nurses' aide went over to the left side of the table opposite the doctor and held on to Mr. Kyriss by his arm. Mr. Kyriss' feet were at the footboard at the end of the table. There were no belts or handholds to which Mr. Kyriss could have held onto the table.
Dr. Stewart held the screen against Mr. Kyriss' chest with his right hand, and he held Mr. Kyriss' arm with his left hand. Dr. Stewart stood on his right foot and with his left foot he operated a pedal connected to the table. As a result of the pedaling, the table began to tilt slowly forward moving from a horizontal toward a perpendicular position. When the table reached a forty-five degree angle, Mr. Kyriss started sliding down the table. Mr. Kyriss continued to slide until he reached a squatting position at the end of the table. Dr. Stewart let go on the screen and straightened Mr. Kyriss' legs out in front of him and then lowered the table back to a horizontal position.
Mr. Kyriss reported, as the result of the accident, pain. The next day, Dr. Bowman, Mr. Kyriss' regular physician, told Dr. Stewart that Mr. Kyriss was complaining that his knees hurt.
X rays taken that next day revealed that Mr. Kyriss' left leg had a fracture of the thigh bone just above the knee joint, and that the left side of the left knee had been slightly crushed. On the right leg there was a traverse fracture to the shaft of the tibia.
To be accredited by the Joint Commission on Accreditation of Hospitals, and as a service to patients and private physicians, the Billings Deaconess Hospital must provide an X ray department, equipment, technicians, and radiologists. Also, the hospital must provide 'Personnel adequate to supervise and conduct the services * * *.'
In order to provide these services, the hospital has contracted with The Billings Clinic to provide 'a competent director, who shall be a qualified radiologist, for the diagnostic X ray department operated by the hospital.'
The contract provisions pertinent to this case read:
'2. The Clinic will, at its own expense, provide a competent director, who shall be a qualified radiologist, for the diagnostic X ray department operated by the hospital. The director will interpret X ray films, do fluoroscopic work, give deep therapy treatments, and perform such other duties as are incidental thereto. He shall supervise and lay out the work for other employees in the department, and be responsible for seeing that there is ample coverage in the department, or on call, at all times.
The hospital will furnish all employees for the diagnostic X ray department other than the director and shall pay their salaries, and these employees shall be subject to the rules and regulations of the hospital pertaining to all of its employees. All applicants under consideration for employment in the diagnostic X ray department however shall be referred to the director by the administrator of the hospital, and no person shall be employed in this department without the express approval of the director.
'3. All charges for diagnostic X ray services shall be made in accordance with Schedule 'A' hereto attached and hereby made a part of this agreement. * * * The hospital will pay the Clinic thirty-five percent (35%) of the gross receipts from such diagnostic X ray services, such payment to be made shortly after the close of each month's business.'
The question before this court is whether the district court erred in granting the defendant-hospital's motion for summary judgment. The primary issue is whether, as the district court found, the radiologist was an independent contractor rather than an agent of the hospital. Additionally, error is urged that sufficient allegations of primary negligence on the part of the...
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