Miller v. Atkins

• Decision Date: 27 May 1977
• Docket Number: No. 1,No. 53626,53626,1
• Citation: 142 Ga.App. 618,236 S.E.2d 838
• Parties: J. W. MILLER v. Sam O. ATKINS
• Court: Georgia Court of Appeals

Page 838

236 S.E.2d 838

142 Ga.App. 618

J. W. MILLER v.Sam O. ATKINS.

No. 53626.

Court of Appeals of Georgia, Division No. 1.

May 27, 1977.

Rehearing Denied June 23, 1977.

Garland T. Byrd, Butler, for appellant.

T. M. Smith, Jr., Robert G. Tanner, Atlanta, for appellee.

SMITH, Judge.

The appellant sued both the surgeon and the hospital for injuries he allegedly received during surgery.A summary judgment was granted in favor of the hospital, and after the close of the evidence the jury returned a verdict in favor of the surgeon.The appellant contends the trial court erred in its instructions to the jury regarding the surgeon's responsibility for negligent acts of surgical attendants.We agree, and the judgment is reversed.

The surgery performed on the appellant required the application of saline hot packs to the area to reduce bleeding.Finding that the packs he was using were not hot enough, the surgeon requested hotter water.An attending nurse brought hotter water which was poured into a stainless steel container, and at some point the container was placed between the appellant's legs.The night following the operation the appellant began to complain about pain in his legs, and severe burns were discovered on the insides of his calf muscles just below the knees.The appellant contended that either the surgeon or one of the attendants had caused the burns by placing the container between his legs.

The defendant hospital, on a motion for summary judgment, successfully argued that the surgeon was an independent contractor, that any of his negligent acts would not be imputable to the hospital, and, furthermore, that any negligent acts of the surgical attendants, who were subject to the control of the surgeon, would not be imputable to the hospital because of the "borrowed servant" rule.The motion was granted.

At the close of the evidence, the judge charged the jury that the physician would not be responsible for any of the negligent acts of the surgical attendants where they"are called upon to function and/or perform acts customarily performed by hospital personnel and not involving the exercise of medical judgment."The appellant was thus left in the unenviable legal position that if one of the surgical attendants had caused his injuries, neither the hospital nor the doctor could be held accountable therefor.The surgical attendants had been granted the legal posture of independent contractors.In short, if the jury had found that the appellant's injuries were caused by one...