Lewis v. Physicians Ins. Co. of Wisconsin

• Decision Date: 25 April 2000
• Docket Number: No. 99-0001.,99-0001.
• Citation: 2000 WI App. 95,612 N.W.2d 389,235 Wis.2d 198
• Parties: Norvin LEWIS and Delores Lewis, Plaintiffs-Respondents, v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, Jay Seldera, M.D. and Wisconsin Patients Compensation Fund, Defendants-Appellants, LAKELAND MEDICAL CENTER, The Dean Health Plan, Inc. and Donna Shalala, Defendants.
• Court: Wisconsin Court of Appeals

235 Wis.2d 198

2000 WI App. 95

612 N.W.2d 389

Norvin LEWIS and Delores Lewis, Plaintiffs-Respondents,¹ v. PHYSICIANS INSURANCE COMPANY OF WISCONSIN, Jay Seldera, M.D. and Wisconsin Patients Compensation Fund, Defendants-Appellants, LAKELAND MEDICAL CENTER, The Dean Health Plan, Inc. and Donna Shalala, Defendants.

No. 99-0001.

Court of Appeals of Wisconsin.

Submitted on briefs April 4, 2000.

Decided April 25, 2000.

On behalf of the defendants-appellants, the cause was submitted on the briefs of Christopher P. Riordan of Crivello, Carlson, Mentkowski & Steeves, S.C., of Milwaukee.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of Timothy J. Aiken and James C. Gallanis of Aiken & Scoptur, S.C., of Milwaukee. Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. FINE, J.

Physicians Insurance Company of Wisconsin, Jay Seldera, M.D., and the Wisconsin Patient's Compensation Fund appeal from a judgment entered against them in favor of Norvin and Delores Lewis. The trial court held that Dr. Seldera was vicariously liable for the negligence of two operating-room nurses even though Dr. Seldera was not himself negligent and did not employ the nurses. We reverse.

I.

¶ 2. The parties have stipulated to the facts material to the trial court's determination and this appeal. In November of 1993, Dr. Seldera removed Mr. Lewis's gallbladder at Lakeland Medical Center in Elkhorn, Wisconsin. Unfortunately, one of the laparotomy pads used in the surgery was left in Mr. Lewis, and had to be removed in a later surgery.² According to the stipulation:

Nurses Patricia Vickery and Ellen Chapman were in charge of counting the laparotomy pads used for the procedure. Under hospital procedure, the nurses, not Dr. Seldera, had responsibility for counting and overseeing the count of laparotomy pads used in the procedure. Both Nurse Vickery and Nurse Chapman were employed by Lakeland Medical Center at the time of Mr. Lewis' surgery. Neither nurse was employed by Dr. Seldera.

Indeed, Ms. Chapman, as the circulating nurse assigned to the operation, had an obligation under the law to count the pads that was independent of who the surgeon was or what directions the surgeon might give. See WIS. ADMIN. CODE § HFS 124.13(7) (The "`circulating nurse'" is "a registered nurse who is present during an operation . . . who, before the surgical procedure . . . is completed, . . . ensures that the sponge, needle and instrument counts have been done according to hospital policy."). The parties also stipulated that "Lakeland Medical Center is liable for the actions of Pat Vickery and Ellen Chapman under the doctrine of respondeat superior."

¶ 3. The Lewises agreed in the stipulation that their only claim against Dr. Seldera turns on whether he "can be held vicariously liable for the negligence of the nurses." The Lewises do not contend that Dr. Seldera was negligent. They also do not contend that the nurses were Dr. Seldera's "borrowed servants."

¶ 4. The trial court ruled that Dr. Seldera was liable for the negligence of the two nurses because, as the trial court expressed it during the course of its oral decision, as the operating physician, Dr. Seldera was the "captain of the ship" and, accordingly, was "responsible for everything." The trial court based this conclusion on the rationale that the patient goes to the doctor for medical treatment, and, therefore, reasonable expects "that doctor to do everything."

II.

¶ 5. The question presented by this appeal is whether a surgeon, as the "captain" of the operating room, is vicariously liable for the negligence of operating-room personnel not selected by the surgeon, where the surgeon is not negligent. We conclude that the answer to this question is "no." [1]

¶ 6. As the parties recognize, this appeal from the trial court's grant of summary judgment presents a question of law only. Accordingly, our review is de novo. See Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987).

[2, 3]

¶ 7. Generally, a defendant is liable to a plaintiff in tort only for the defendant's own negligence. See Transportation Ins. Co. v. Hunzinger Construction Co., 179 Wis. 2d 281, 293, 507 N.W.2d 136, 140 (Ct. App. 1993). One exception is under the doctrine of respondeat superior, where an employer will be vicariously liable for the negligence of an employee. See Shannon v. City of Milwaukee, 94 Wis. 2d 364, 370, 289 N.W.2d 564, 568 (1980). As noted, the trial court held that Dr. Seldera was vicariously liable for the negligence of the nurses. The Lewises' argument that we should affirm the trial court rests, in essence, on their reading of Fehrman v. Smirl, 25 Wis. 2d 645, 131 N.W.2d 314 (1964).

¶ 8. In Fehrman, the plaintiff's surgeon, Warren G. Smirl, M.D., "arranged to have" another surgeon, Timothy McDonnell, M.D., "participate in the treatment" of the plaintiff, and the plaintiff consented to have Dr. McDonnell operate on him, with Dr. Smirl acting "as his assistant." Id.,25 Wis. 2d at 655,131 N.W.2d at 319; see also Fehrman v. Smirl, 20 Wis. 2d 1, 121 N.W.2d 255 (1963).³ There was evidence that the plaintiff was injured during the surgery by the acts of one or both of the surgeons. Fehrman, 25 Wis. 2d at 651,131 N.W.2d at 317 (a medical expert testified: "this result would not have occurred if they, or either of them, or both, had been exercising the proper skill and care and diligence that is expected of them in the performance of this operation"). During its deliberations, the jury asked the trial court whether Dr. Smirl was responsible for the care given to the plaintiff by Dr. McDonnell. The trial court responded:

"You are instructed, Members of the Jury, that it was the duty of Dr. McDonnell to exercise the same degree of care and skill in his treatment and in his surgery upon Oscar Fehrman as was required of Dr. Smirl, and that Dr. Smirl would be responsible for any failure upon the part of Dr. McDonnell to exercise such care and skill."

Id., 25 Wis. 2d at 654, 131 N.W.2d at 318.

¶ 9. After reviewing the law around the country concerning the "problem of holding one medical doctor liable for another's conduct," id., 25 Wis. 2d at 655, 131 N.W.2d at 319, Fehrman concluded that, "under the circumstances of this case, Dr. Smirl either was in charge of the patient or was acting jointly with Dr. McDonnell," and, therefore, the trial court's instruction on vicarious liability "was proper." Id., 25 Wis. 2d at 657, 131 N.W.2d at 319-320. The Lewises argue that this statement requires that Dr. Seldera be held liable for the negligence of the two nurses even though he was not, in any respect, negligent. In our view, this is, in the words of A.E. Housman, "a brook too broad for leaping." A SHROPSHIRE LAD canto 54.

¶ 10. As noted, Fehrman approved the trial court's additional instruction to the jury "under the circumstances of this case." Fehrman, 25 Wis. 2d at 657,131 N.W.2d at 319-320. This is a significant limitation because, as we have seen, the most salient circumstance was that the plaintiff's injuries in Fehrman would not have occurred if neither Dr. Smirl nor Dr. McDonnell was negligent, even though specific acts of negligence by either could not be shown. Thus, and significantly, Fehrman also approved the trial court's res ipsa loquitur instruction because the medical expert's testimony did "not particularize the nature of the negligence which he had in mind." Id.,25 Wis. 2d at 652,131 N.W.2d at 317. Stated another way, the jury in Fehrman could have found that either or both of the surgeons were negligent, but there was no evidence pointing to one but not the other.

¶ 11. Fehrman is like the law-school classic, Summers v. Tice, 199 P.2d 1 (Cal. 1948), where two hunters simultaneously and negligently fired their shotguns towards the plaintiff who was struck by a pellet the origin of which could not be ascertained. Id., 199 P.2d at 2. Under that circumstance, each hunter was held vicariously liable for the negligence of the other. Id., 199 P.2d at 2-5.⁴ Significantly, although Summers concerned a situation where both potentially liable defendants were negligent, it relied on a medical-malpractice case where all persons who had any connection with an operation during which an unconscious patient was injured were liable to the patient unless they could prove that they were not negligent. See id., 199 P.2d at 4 (analyzing Ybarra v. Spangard, 154 P.2d 687, 688-690 (Cal. 1944)). This was the situation in Fehrman — one or both of the surgeons were negligent but the plaintiff could not prove which one.⁵ It is not the situation here, however, where as we have seen, the Lewises admit that Dr. Seldera was not negligent. Thus, Fehrman's imposition of liability upon two surgeons, both of whom could have been causally negligent, is not applicable in this case.

¶ 12. The Lewises also offer, as an alternative basis to uphold the trial court's grant of summary judgment, the trial court's "captain of the ship" rationale, and cite McConnell v. Williams, 65 A.2d 243 (Pa. 1949), in support. In McConnell, a newborn baby's eyes were severely damaged when an intern improperly applied silver nitrate to them. Id., 65 A.2d at 244. The physician delivering the baby had requested from the hospital that the intern, whom the physician selected by name, "`be his assistant and take care of the baby at the time of the delivery.'" Ibid. In holding that it was a jury question as to whether the intern was acting as the physician's agent for purposes of imposing upon the physician liability for the intern's negligence, McConnell noted:

As far as the evidence discloses it was defendant [physician], not the hospital, who assigned the interne [sic] to the task of inserting the silver nitrate solution into the infant's eyes, and, even if in the performance of that act he [the intern] may also have been serving the hospital, that fact would not change his legal status with respect

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