Miller v. Hood

• Decision Date: 22 April 1976
• Docket Number: No. 1025,1025
• Citation: 536 S.W.2d 278
• Parties: John J. MILLER, Appellant, v. Dr. Charles H. HOOD et al., Appellees.
• Court: Texas Court of Appeals

Page 278

536 S.W.2d 278

John J. MILLER, Appellant, v.Dr. Charles H. HOOD et al., Appellees.

No. 1025.

Court of Civil Appeals of Texas Corpus Christi.

April 22, 1976.

Rehearing Denied May 13, 1976.

John H. Holloway, Houston, for appellant.

O. F. Jones, Victoria, W. T. McNeil, Vance, Vance & McNeil, Edna, for appellees.

OPINION

BISSETT, Justice.

This is a medical malpractice case.Suit was instituted by John J. Miller('Miller') sometime prior to February 1, 1971, against Dr. Charles H. Hood('Dr. Hood'), Mauritz Memorial Jackson County Hospital('Hospital'), Jackson County, Texas ('County') and James Childress('Childress'), to recover damages for negligence in connection with his treatment while he was a patient in the Hospital.Miller died on March 18, 1971, and the suit was thereafter prosecuted to judgment by the administratrix of his estate and his heirs at law.

Miller, in his pleadings, alleged that he was injured due to the negligent manner in which he was given a penicillin injection by a licensed vocational nurse who was employed by the Hospital; that the nurse, at the time of such injection, was under the control of Dr. Hood; that the negligence of the nurse was a proximate cause of the physical injury that he sustained; and that as a result thereof, he incurred certain medical expenses and suffered permanent injuries and total disability.He asked for judgment against all defendants in the amount of $385,000.00.

General denials were filed by all defendants.In addition, the Hospital and the County each pled the special defense of governmental immunity to the action brought against them by Miller.

Before going to trial on the merits, the Hospital and the County, by a joint motion, moved for summary judgment on the ground of governmental immunity.The trial court, on March 12, 1972, granted the motion in interlocutory form, subject to becoming final upon disposition of the cause.

The case then proceeded to trial before a jury on April 14, 1975.Following the overruling of motions for instructed verdict filed by both the representative of the Estate of John J. Miller, Deceased, and his heirs at law and by Dr. Hood, the trial court submitted two special issues to the jury, which found: 1) that the licensed vocational nurse 'when giving the penicillin shot' to Miller was not a 'borrowed employee' of Dr. Hood; and 2) that Miller was not entitled to any money as damages 'as a result of injury to his sciatic nerve'.A final judgment that the administratrix of the Estate of John J. Miller, Deceased, and the heirs at law of the decedent take nothing against all defendants was rendered on June 9, 1975.An appeal has been perfected from that judgment.

The suit arose from the following facts: Miller, complaining of chest pain and fever, sought the medical assistance of Dr. Hood.Following an examination, Dr. Hood concluded that Miller was suffering from bronchial pneumonia and had him admitted to the Hospital.While in the Hospital, Miller, immediately after an injection of penicillin on January 16, 1969 by a licensed vocational nurse who was then in the employ of the Hospital, began to complain of pain and discomfort.Upon notification of Miller's condition, Dr. Hood examined Miller and diagnosed an improper application of penicillin in the sciatic nerve.Soon thereafter, Miller showed signs of paralysis in the lower extremities in the left side of his body.Dr. Hood, satisfied that Miller had recovered from pneumonia, discharged him from the Hospital.One month later, Miller saw Dr. Robert Hardy, a neurosurgeon, for additional treatment.Failing to respond to Dr. Hardy's initial treatment, Miller was admitted to Baptist Memorial Hospital in San Antonio for purposes of nerve repair surgery.Following this surgery, Miller again complained of pain and discomfort, this time in his lower right extremity.Three weeks later, Miller was discharged from Baptist Memorial Hospital and soon afterward entered the Veterans Hospital in Houston for additional treatment, where he remained for approximately nine (9) months.He committed suicide shortly after his discharge from the Veterans Hospital.

Appellants, in their first three points, contend that the trial court erred in denying their motion for instructed verdict because the uncontroverted evidence established as a matter of law that the nurse, in giving the shot, was a 'borrowed employee' of Dr. Hood, even though she was, at that time, in the general employ of the Hospital; that the finding by the jury that the nurse in administering the penicillin injection, was not a 'borrowed employee' of Dr. Hood is contrary to the undisputed evidence; and that such jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust.None of the points can be sustained.

Appellants argue that Dr. Hood had the right of control over the nurse's acts, since he specifically gave the nurse her orders.Dr. Hood, on the other hand, says that the nurse, while acting pursuant to his orders, was not subject to his control, but was under the control of the Hospital, and was in fact performing regular and routine hospital functions as a general employee of the Hospital at the time she gave the penicillin shot to Miller.

Generally speaking, a doctor is not liable for the negligence of hospital nurses who are not his employees unless they administer medication or perform acts under his supervision and control.'The mere fact that a physician or surgeon gives instructions to a hospital employee does not render the physician or surgeon liable for negligence of the hospital employee in carrying out the instructions'.70 C.J.S.Physicians and Surgeons§ 54.

Whether a general employee of one employer becomes a borrowed employee of another at a given time is determined by who had the right to control the employee in the details of the work that was performed.Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632(1943).If the general employee is placed under the control of a special employer in the manner of performing a particular service, he becomes a borrowed employee of the special employer, but if the employee remains under the control of his general employer in the manner of performing such service, he remains the employee of the general employer.Producers Chemical Company v. McKay, 366 S.W.2d 220(Tex.Sup.1963).Where there is no contract between the employers covering the specific right to control the particular employee then a factual question is raised as to whether the employee is a borrowed employee at the time in question.Sanchez v. Leggett, 489 S.W.2d 383(Tex.Civ.App.--Corpus Christi1972, writ ref'd n.r.e.).

There is testimony in the record from competent witnesses that it was the customary routine at the Hospital for the attending physician to leave written orders at the nurses' station.Thereafter, the supervising nurse on duty would inform the nurse in charge of medications of the orders, and that nurse would carry out the orders without the assistance of the doctor.It was further established that once the doctor leaves such orders as to what treatment he desires the patient to receive, actual treatment is carried out by the personnel employed by the Hospital without the doctor in attendance except in special cases that require urgent treatment.There is testimony that the giving of a penicillin shot does not require the presence or the assistance of the doctor since the nurse is trained to administer such medication.No urgency is presented by the record.

At the time the shot of penicillin was given to Miller, the nurse was a general employee of the Hospital.It was her job, as a nurse in the Hospital, to administer medication prescribed by the doctors who were practicing medicine in the Hospital.Dr. Hood ordered penicillin to be administered to Miller in the 'anterior thigh not closer to groin than four inches or in the deltoid muscle.'The nurse did not follow those instructions.However, there is no evidence that Dr. Hood had any right of control over the nurse concerning the details of how she was required to give the shot.Dr. Hood was not present when the shot was given.He did not select the nurse who was to administer the injection.While the nurse gave the shot as ordered by Dr. Hood, her actions in doing so were part of ordinary hospital routine and under the supervision of the supervising nurse then on duty.The relationship of 'employer-borrowed employee' cannot be inferred or established in this case merely because the nurse, the general employee of the Hospital, performed routine acts in obedience to the instructions of the doctor.F. B. McIntire Equipment Co. v. Henderson, 472 S.W.2d 566(Tex.Civ.App.--Fort Worth1971, writ ref'd n.r.e.);Wise v. Texas Employers Ins. Ass'n, 402 S.W.2d 228(Tex.Civ.App.--Houston1966, writ ref'd n.r.e.).

In Bernardi v. Community Hospital Ass'n, 166 Colo. 280, 443 P.2d 708(1968), a case similar factually to this case, the doctor left a written order at the hospital that the plaintiff be given an injection of tetracycline every twelve hours in her right gluteal region.A nurse, who was in the general employ of the hospital, negligently injected the tetracycline into or adjacent to the sciatic nerve, which resulted in serious permanent injuries to the plaintiff.It was held that the doctor did not have the right to control the nurse, and that his instructions that injections were to be given did not give rise to a master-servant relationship.The trial court granted the doctor's motion that the complaint be dismissed for failure to state a claim upon which relief could be granted against him.That ruling by the trial court was affirmed.

Another case in point is Honeywell v. Rogers, 251 F.Supp. 841(Dist.Ct., W.D Penn.1966).There, the law of Pennsylvania, like the law in Texas, imposed liability on a doctor for the negligence of an employee of the hospital...