McKinney v. Tromly

• Decision Date: 17 December 1964
• Docket Number: No. 106,106
• Citation: 12 A.L.R.3d 1011,386 S.W.2d 564
• Parties: Ramon McKINNEY et ux., Appellants, v. R. G. TROMLY, Appellee.
• Court: Texas Court of Appeals

Page 564

386 S.W.2d 564

12 A.L.R.3d 1011

Ramon McKINNEY et ux., Appellants, v. R. G. TROMLY, Appellee.

No. 106.

Court of Civil Appeals of Texas, Tyler.

Dec. 17, 1964.

Rehearing Denied Jan. 14, 1965.

John H. McElhaney and Robert W. Calloway, Turner, Rodgers, Winn, Scurlock & Terry, Eugene L. Smith, of counsel, William L. Richards, Andress, Woodgate, Richards & Condos, Dallas, for appellants.

James A. Williams, Bailey & Williams, Dallas, for appellee.

SELLERS, Justice.

This is a malpractice suit brought by Ramon McKinney and wife against Dr. R. G. Tromly. The suit by the appellants seeks to hold Doctor Tromly liable for the negligence of a nurse, Louise Torian, in administering an anaesthetic to appellants' son Mark upon whom Doctor Tromly was in the act of doing a tonsillectomy with an electrical instrument.

The nurse admitted using ether which is very dangerous when brought in contact with an electrical instrument and will, in better than 90% of the cases, cause an explosion. An explosion did occur when the doctor applied the electrical instrument to Mark's throat, causing the boy's lungs to be so severely burned that he died a few hours after the explosion. The explosion also wrecked the anaesthetic machine and caused a fire, necessitating calling the Fire Department.

The appellants' son, a 9-year-old, was having trouble with his breathing, although he had previously had his tonsils removed. He would breathe through his mouth rather than his nose. The family physician of the McKinneys advised them to take him to Doctor Tromly, which they did, and Doctor Tromly recommended an operation to remove an obstruction in or about the nasal passage. Doctor Tromly advised the McKinneys to carry Mark to Methodist Hospital in Dallas for the operation. Louise Torian, the nurse, was a general employee of the hospital. The administration of an anaesthetic is not an administrative function of the hospital and constitutes the practice of medicine. Although the nurse could not practice medicine, yet she was trained in this field and knew how to administer an anaesthetic. The doctor had used this nurse on prior occasions to give anaesthetics for him. On the morning of the operation Mark was carried into the operating room. The anaesthetic was given by the nurse and other nurses had assembled the electrical instrument and had it ready when the doctor entered.

The machine from which the anaesthetic was administered by the nurse had a large gauge on the front of it which registered in color the different medicines used for anaesthetics and showed at the moment the doctor started his operation that the nurse had used and was using ether. The doctor did not notice this gauge and made no inquiry of the nurse as to what she was giving the boy. He immediately started to operate and the explosion occurred which resulted in the death of Mark. The court admitted evidence of other doctors showing that it was the general practice in Dallas to use a nurse trained in the field to give anaesthetics.

It was an admitted fact that Doctor Tromly had absolute right of control of all personnel in the operating room during the operation, including the nurse whether or not he exercised such control.

The case was submitted to a jury on special issues and resulted in a verdict finding the nurse guilty of negligence, which was the proximate cause of the explosion and injury to Mark. The jury also found that Doctor Tromly was not guilty of negligence. The damages assessed by the jury was $15,000.00. Notwithstanding the jury's verdict, the court entered judgment that plaintiffs take nothing against Doctor Tromly, the only defendant in the suit.

It is the contention of appellants that Doctor Tromly is liable for the negligence of the nurse under the facts in this case, and that the trial court should have entered judgment for the appellants. We have concluded that this contention must be sustained.

We have no difficulty in finding that the nurse, although in the general employ of the hospital, was under the facts of this case an employee of Doctor Tromly while in the operating room and under his control.

The early case of Western Union Telegraph Co. v. Rust, Tex.Civ.App., 120 S.W. 249, err. ref., recognized the rule that one can be in the general employ of one master and the special employee of another at the same time; and if the special master has the right of control, he is liable for the negligence of the servant. While the above case was not a malpractice case, it is interesting to note that it has been cited by the Supreme Court of two other states in malpractice cases in sustaining the view that the surgeon is responsible for the negligence of the nurse. Minogue v. Rutland Hospital, 119, Vt. 336, 125 A.2d 796; Aderhold v. Bishop, 94 Okl. 203, 221 P. 752. In the last cited case the Supreme Court of Oklahoma had this to say:

'We can conceive of no instance in which the application of the doctrine of respondeat superior could exercise a more salutary influence than in cases of damage arising out of surgical operations. The patient is helpless under the influence of an anaesthetic, and absolutely at the mercy of the surgeons performing the operation, and they are charged with the duty to see that no preventable injury results to their patient. * * * If the operating surgeons were not made liable for the negligent performance of the duties of those working under him, the law in a large measure would fail in affording a means of redress for preventable injuries sustained from surgical operations.'

The Supreme Court of North Carolina, in a case much like the one here, in Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589, held:

'On this record the evidence is...