Krane v. Saint Anthony Hosp. Systems

• Decision Date: 30 April 1987
• Docket Number: No. 85CA0865,85CA0865
• Citation: 738 P.2d 75
• Parties: Roberta KRANE, Plaintiff-Appellant, v. SAINT ANTHONY HOSPITAL SYSTEMS, a non-profit Colorado corporation, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 75

738 P.2d 75

Roberta KRANE, Plaintiff-Appellant, v. SAINT ANTHONY HOSPITAL SYSTEMS, a non-profit Colorado

corporation, Defendant-Appellee.

No. 85CA0865.

Colorado Court of Appeals,

Div. I.

April 30, 1987.

Kofoed & Larson, P.C., David L. Kofoed, Denver, for plaintiff-appellant.

Boulter & Jamison, Jamey W. Jamison, Stuart L. Boulter, Denver, for defendant-appellee.

ENOCH, Chief Judge.

Plaintiff, Roberta Krane, appeals a summary judgment entered in favor of defendant, St. Anthony Hospital Systems (Hospital), on her claim for the wrongful death of her husband which occurred during an elective surgery performed at the Hospital. We affirm.

This action was filed on March 11, 1983, against the Hospital and two of the physicians involved in the surgery--the chief operating surgeon and the anesthesiologist. The Hospital is the only remaining defendant in this action.

The parties took depositions of the chief operating surgeon, the anesthesiologist, the assistant surgeon, the surgical nurse, the scrub nurse, and the circulating nurse, all of whom were present for Mr. Krane's surgery. Subsequently, the Hospital filed a motion for summary judgment with accompanying brief, supported by the above mentioned depositions, various medical records and reports pertaining to Mr. Krane's surgery, and the affidavits of two nurses.

In opposition to the motion, plaintiff filed an answer brief supported by various medical reports and the affidavit of Dr. Bogetz, an anesthesia expert. The Hospital's reply brief contained an affidavit of the Chief of the Department of Anesthesia at the Hospital, which disputed the conclusions of plaintiff's expert regarding the availability of mechanical ventilation equipment in the Hospital at the time of Mr. Krane's surgery. Plaintiff also filed a supplemental response accompanied by an affidavit of Mrs. Krane relating to the information given to Mr. Krane prior to surgery, and to his state of mind at that time.

On this state of the record, the trial court granted the summary judgment from which plaintiff appeals.

I.

Plaintiff's first contention is that the trial court erred in granting summary judgment because an issue of material fact existed as to an alleged negligent act of the surgical nurse. We disagree.

Even if we assume that the nurse was an employee of the Hospital, that she was negligent, and that such negligence caused the death of plaintiff's husband, the so-called "Captain of the Ship" doctrine, as set out in Kitto v. Gilbert, 39 Colo.App. 374, 570 P.2d 544 (1977), still precludes recovery against the Hospital. In Kitto, supra, this court held that both the operating surgeon and the hospital where the surgery is performed cannot be liable under respondeat superior for the same act or acts of negligence of a hospital employee assisting in an operation. Once the operating surgeon assumes control in the operating room, the surgeon is liable for the negligence of all persons working under the surgeon's supervision. Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711 (1957); see also Kitto, supra.

The factual question to be determined then is whether, at the time of the alleged negligent act, the operating surgeon had assumed such control. If so, the surgeon's responsibility supersedes that of the Hospital. Kitto, supra. Here, from the affidavits, depositions, and records before the court, it is uncontradicted that the alleged negligent act of the surgical nurse took place over two-and-one-half hours into the surgery, so there can be no factual dispute that the operating surgeon had assumed control. Thus, under Kitto and Beadles, the Hospital could not be liable for the negligent acts of the surgical nurse. The Hospital was therefore entitled to summary judgment on this issue as a matter of law. See Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).

II.

Plaintiff next contends that the trial court erred in granting summary judgment because an issue of material fact existed concerning the failure of the Hospital to provide and have available adequate mechanical ventilation equipment for use during surgery. We disagree with this contention.

A party is entitled to a summary judgment if there are pleadings, affidavits, depositions, or admissions on file showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Abrahamsen v. Mountain States Telephone & Telegraph Co., supra. In the context of a summary judgment proceeding, an issue of material fact is one, the resolution of which will affect the outcome of the case. Mt. Emmons Mining Co. v. Crested Butte, 690 P.2d 231 (Colo.1984).

Here, there is disagreement as to whether the Hospital had mechanical ventilation equipment available to ventilate Mr. Krane adequately during his surgery. However, it is uncontradicted that the anesthesiologist used his own ventilation equipment, which, as he testified in his deposition of April 30, 1985, was the usual procedure. Thus, even if we were to rule that the Hospital did not provide adequate ventilation equipment, it would not affect the outcome of the case because that disputed fact was not material in determining the liability of the Hospital. Therefore, there was no dispute of material fact, and summary judgment was appropriate. Abrahamsen v. Mountain States Telephone & Telegraph Co., supra.

III.

Plaintiff's final contention is that the court erred in granting summary judgment because an issue of fact existed as to the sufficiency of the Hospital's advisement. Plaintiff argues that the Hospital failed to advise her husband sufficiently of the risks of his surgery. Although plaintiff admits that the law requires the surgeon to obtain the informed consent of a patient prior to an operation, she argues that the hospital also is required to obtain an informed consent and further argues alternatively that when a hospital undertakes to obtain a similar informed consent, it has an obligation to do so properly. We do not agree.

Though it is a well settled rule that a surgeon is required to obtain the informed consent...