Parker v. Vanderbilt University

• Decision Date: 23 November 1988
• Citation: 52 Ed.LawRep. 1297,767 S.W.2d 412
• Parties: 52 Ed. Law Rep. 1297 Richard O. PARKER, a disabled person, and Kathryn Tyler, as guardian of the person and property of Richard O. Parker, a disabled person, Plaintiffs-Appellants, v. VANDERBILT UNIVERSITY; Dr. Thomas C. Kreuger; Dr. Stephen Powell; Dr. Clay Alexander; Dr. James Peacock; and Dr. Ildefonso Alcantara, Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 412

767 S.W.2d 412

52 Ed. Law Rep. 1297

Richard O. PARKER, a disabled person, and Kathryn Tyler, as guardian of the person and property of Richard O Parker, a disabled person, Plaintiffs-Appellants, v. VANDERBILT UNIVERSITY; Dr. Thomas C. Kreuger; Dr. Stephen Powell; Dr. Clay Alexander; Dr. James Peacock and Dr. Ildefonso Alcantara, Defendants-Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Nov. 23, 1988.

Permission to Appeal Denied by

Supreme Court Feb. 27, 1989.

John W. Nolan, III, Earl J. Porter, Jr. and Mary Arline Evans, Nashville, for plaintiffs-appellants.

Frank C. Gorrell, R. Dale Grimes, Bass, Berry & Sims, Nashville, for defendants-appellees Vanderbilt University, Dr. Kreuger, Dr. Powell, Dr. Alexander and Dr. Peacock.

William P. Sutherland, Watkins, McGugin, McNeilly & Rowan, Nashville, for defendant-appellee Dr. Alcantara.

OPINION

CANTRELL, Judge.

This is a medical malpractice action against multiple defendants. Plaintiff Richard O. Parker emerged from surgery with severe brain damage and has since remained in a coma. After the trial judge dismissed the doctors, their hospital-employer, and the director of anesthesia services for the hospital where the accident occurred, the plaintiffs filed a notice of voluntary dismissal as to the other defendants. This appeal followed.

During the evening of June 17, 1984, plaintiff Richard O. Parker was shot in the back with a small caliber handgun as he tried to escape from an armed robber. He was taken to Nashville General Hospital, a hospital operated by the Metropolitan Government of Nashville and Davidson County.

The surgical staff at Nashville General was furnished by Vanderbilt University under a contract with the Metropolitan Government. On the evening in question, four Vanderbilt physicians, Drs. Powell, Kreuger, Alexander and Peacock, were on duty in the operating room at General. Sandra Conner, a nurse anesthetist employed by the Metropolitan Government, and Rebecca Murphy, a student nurse anesthetist at the Middle Tennessee School of Anesthesia, provided the anesthesia services in the operation room. Dr. Ildefonso Alcantara headed the department of anesthesia services for General, but he was not present at the hospital on the evening of June 17, 1984.

At the time of his admission, Mr. Parker was able to walk and his vital signs were stable. After an examination in the emergency room, Mr. Parker was taken to the operating room for surgery.

After Mr. Parker was sedated and given oxygen by mask for approximately five minutes, Ms. Murphy inserted an endotracheal tube into Mr. Parker's throat. The tube was to supply oxygen to Mr. Parker during the operation. The complaint alleges that the tube entered Mr. Parker's esophagus rather than his trachea and he was therefore deprived of oxygen for approximately twelve minutes. Within five minutes, Mr. Parker's blood pressure and heart rate dropped dramatically. His abdomen had been opened and the surgical team noticed that his blood was dark and his stomach distended. As his heart rate continued to drop, the anesthetists administered atropine and bicarbonate and one of the surgeons started pressing Mr. Parker's chest to restore circulation. Ms. Conner removed the endotracheal tube and replaced it with another. At approximately the same time, one of the surgeons opened Mr. Parker's chest and started heart massage. Within seven minutes after Mr. Parker's heart rate began to fall, his blood pressure and heart rate were restored. However, during the twelve minute period when his lungs were deprived of oxygen, he suffered severe brain damage.

Mr. Parker, through his next of kin and limited guardian, filed an action against Nashville General Hospital, the Metropolitan Government of Nashville and Davidson County, Vanderbilt University, five Vanderbilt doctors, Sandra Conner, Rebecca Murphy, Middle Tennessee School of Anesthesia, Inc. and Dr. Alcantara.

On October 8, 1986, the trial court dismissed Dr. Alcantara on a motion for summary judgment. The plaintiffs voluntarily dismissed one of the Vanderbilt doctors and, on June 9, 1987, the trial judge dismissed Vanderbilt University and the remaining Vanderbilt doctors on a motion for summary judgment. The plaintiffs then voluntarily dismissed the remaining defendants. An order to that effect was entered by the trial judge on July 29, 1987.

On July 30, 1987, the plaintiffs filed a motion for a new trial on the claims against Vanderbilt, its doctor employees, and Dr. Alcantara. When the trial judge overruled the motion, the plaintiffs filed a notice of appeal.

I. The Timeliness of the Appeal

Vanderbilt and its doctor employees filed a motion to dismiss the appeal because it was not timely filed. They insist that the motion for a new trial should have been filed within thirty days after the order dismissing the case as to them. On December 9, 1987, this court filed an opinion and an order denying the motion to dismiss. The named appellees subsequently filed a petition to rehear, and this court consolidated the petition with the oral argument on the merits of the appeal.

After considering the petition to rehear, we have concluded that the petition should be denied. We are persuaded that the prior opinion of this court on the motion to dismiss properly addressed and disposed of the issues in the motion. A copy of our prior opinion is attached as an appendix to this opinion.

II. Vicarious Liability

The cause of action asserted by the plaintiffs is described in the complaint as follows:

As a result of the careless placement of the endotracheal tube and/or failure to recognize the problem and correct it for so long a period of time, Richard O. Parker suffered profound irreversible brain damage.

Thus, the plaintiffs allege two acts of negligence: the first is the misplacement of the tube, and the second is the failure to recognize the problem and to take prompt action to correct it.

The parties disagree as to whether the endotracheal tube was actually misplaced. Although the record in this court does not show that the tube was misplaced, that is one inference to be drawn from the proof on file. Viewing the record in the light most favorable to the plaintiffs, we will assume that the misplacement of the endotracheal tube can be shown to the jury's satisfaction. See Taylor v. Nashville Banner Publishing Company, 573 S.W.2d 476 (Tenn.Ct.App.1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60 L.Ed.2d 396 (1979).

As to all the appellees (Dr. Alcantara, Vanderbilt University, Drs. Powell, Kreuger, Alexander, and Peacock), their responsibility for the misplacement of the tube must result from some theory of vicarious liability. We will deal with that aspect of the case first.

A. The Captain of the Ship Doctrine

One legal theory by which vicarious liability has been placed on a surgeon is the so-called "Captain of the Ship Doctrine." The analogy was first used in the case of McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949), where the court said, "He [the surgeon] is in the same complete charge of those who are present and assisting him as is the captain of a ship over all on board...." 65 A.2d at 246. Taken to the extreme, this logic would impose absolute liability on a surgeon for the negligent acts of every person connected with the surgery. However, the facts and holding of McConnell do not seem to indicate the beginning of a revolution. The court simply held that there was a factual question for the jury as to whether, under familiar agency principles, the obstetrician could be vicariously liable for the negligence of an assisting intern. Id. 65 A.2d at 248.

In later cases, the Pennsylvania courts relied on the Captain of the Ship Doctrine to expand the liability of surgeons to acts of subordinates occurring outside of the operating room. See, e.g., Yortson v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959). But, in more recent cases, the courts in Pennsylvania have redefined the doctrine so that, now, it more nearly resembles the "borrowed servant" concept. See Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). In Collins, the court said: "The crucial test in determining whether an employee furnished to another becomes a servant of the one to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also as to the manner of performing it." 431 Pa. at 394, 246 A.2d at 406.

With the concept taking on so many shades of meaning in the state of its origin, it is not surprising that other states have had difficulty in defining it. While referring to the doctrine in several cases, the Tennessee courts have not attempted to formulate a definition. See Harrison v. Wilkerson, 56 Tenn.App. 188, 405 S.W.2d 649 (1966); French v. Fischer, 50 Tenn.App. 587, 362 S.W.2d 926 (1962). In two unreported cases, the Western Section of the Court of Appeals has rejected the Captain of the Ship Doctrine after failing to find its precise meaning. ¹

We are of the opinion that the use of the term "Captain of the Ship" with respect to the liability of a surgeon for the negligent acts of others in or around the operating room is unnecessarily confusing and should be avoided. We think the surgeon's liability for the acts of others should rest on the more familiar concepts of master and servant; "[o]perating surgeons and hospitals are subject to the principles of agency law which apply to others." Sparger v. Worley Hospital, Inc., 547 S.W.2d 582, 585 (Tex.1977).

B. Master and Servant and Vicarious Liability

1. In General

Under Tennessee law, a master is liable for his servant's negligence solely on the doctrine of respondeat superior. Smith v. Henson, 214 Tenn. 541, 551, 381 S.W.2d 892, 897 (1964). That doctrine is based upon the principle "that the wrong of the agent is the wrong of his employer." Raines v. Mercer, 165 Tenn. 415,...