Porter v. Patterson

• Decision Date: 25 September 1962
• Docket Number: Nos. 39636,No. 3,39658,s. 39636,3
• Citation: 129 S.E.2d 70,107 Ga.App. 64
• Parties: R. B. PORTER, Next Friend, v. Dr. Joseph H. PATTERSON et al. EMORY UNIVERSITY v. D. L. PORTER et al
• Court: Georgia Court of Appeals

Page 70

129 S.E.2d 70

107 Ga.App. 64

R. B. PORTER, Next Friend, v. Dr. Joseph H. PATTERSON et al.

EMORY UNIVERSITY v. D. L. PORTER et al.

Nos. 39636, 39658.

Court of Appeals of Georgia, Division No. 3.

Sept. 25, 1962.

Rehearing Denied Nov. 29, 1962.

Syllabus by the Court

1. (a) A non-charitable hospital is liable for the negligence of its nurses, orderlies and other employees, in the performance of mere administrative or clerical duties which, though constituting a part of the patient's prescribed medical treatment, do not require the application of specialized technique or the understanding of a skilled physician or surgeon and which duties are not performed under the direct supervision of the attending physician.

(b) Applying the foregoing rule of law, the allegations of the petition in this case that employees of the defendant hospital, in preparing the plaintiff, a new-born infant, for a blood change-over operation, strapped her in an incubator with her foot touching a lighted 150 watt unshielded light bulb which had been placed therein for the purpose of preheating the incubator; that under proper operating procedure, such light bulb should have been removed from the incubator prior to placing the plaintiff therein; that such employees thereafter placed a cover over the incubator which prevented the attending physician, while he was thereafter performing the operation, from observing the condition of the plaintiff, and that the acts of such hospital employees constituted negligence proximately causing a burn to the plaintiff's foot, stated a cause of action under the maxim of respondeat superior against the hospital because of the negligence of such employees.

2. None of the special demurrers of the defendant hospital which were overruled by the trial judge was meritorious.

3. A physician or surgeon is not negligent in failing to inspect or review the work of nurses, orderlies and other hospital employees in carrying out his instructions where the performance of such tasks does not involve the exercise of medical skill or experience; nor is he negligent in assuming that such employees will attend to their ordinary and customary duties without his having to give them detailed instructions. Accordingly, where the sole basis of alleged liability of the defendant physician is his failure to review the work of hospital employees in negligently placing the plaintiff in an incubator preparatory to his performance of an operation on the plaintiff, the petition failed to state a cause of action against him and his general demurrer was properly sustained.

M. Neil Andrews, James M. Roberts, Atlanta, for R. B. Porter.

J. Corbett Peek, Jr., Atlanta, for Emory University.

Hansell, Post, Gardner, Brandon & Dorsey-Hugh E. Wright, Allen Post, M. Neil Andrews, James M. Roberts, Atlanta, for defendants in error.

CARLISLE, Presiding Judge.

These cases are related to the case of Emory University v. Porter, 103 Ga.App. 752, 120 S.E.2d 668 which involved an earlier appeal by Emory University from an order overruling its motion to dismiss the petition. After the decision in that case and before the remittitur was made the judgment of the trial court, the plaintiff amended her petition, substantially changing the allegations of fact therein respecting the liability of the hospital and of Dr. Joseph H. Patterson. The trial court sustained the general demurrer of Dr. Patterson and dismissed the case as to him, and the exception in Case No. 39636 is to that judgment. At the same time the trial court passed on the renewed and additional demurrers of the defendant Emory University, overruling the general demurrer and some of the special demurrers and sustaining other of the special demurrers and further reciting that because of its ruling sustaining certain paragraphs of the demurrers, it was not necessary to rule on other enumerated paragraphs thereof. The defendant Emory University in Case No. 39658 assigns error on so much of that order as was adverse to it.

Insofar as is material to the question here presented, the petition as finally amended alleged that plaintiff's father, in accordance with instructions previously given by Dr. Patterson, brought her to the Crawford W. Long Memorial Hospital, (operated by Emory University) and turned her over to a nurse in charge of the ward. Thereafter Dr. Patterson arrived and directed that plaintiff be prepared for a blood changeover operation, and thereupon plaintiff was taken by the employees of the defendant hospital to the operating room and placed in an incubator owned and controlled by the hospital, and by said employees was immobilized therein by being strapped down, In so doing, said employees placed plaintiff's left foot in a position where it touched a 150 watt electric light bulb in the incubator, which had not been turned off or removed from the incubator in accordance with proper operating procedures. The incubator had a cover with an opening in the center of the said cover left to allow the physician to perform the required operation, but the cover which was placed over the incubator concealed the 150 watt light bulb from observation by anyone until or unless said cover was removed, and after plaintiff had been so placed in the incubator Dr. Patterson came into the operating room and proceeded with the operation on plaintiff without removing the cover on the incubator or making any inspection to determine whether plaintiff was properly placed in the incubator and protected from the heating units used therein. It was further alleged that the light bulb referred to was placed in the incubator for the purpose of preheating it and under proper operating procedure the bulb would have been turned off prior to the time the plaintiff was placed therein; that when properly operated the incubator is heated while the patient is therein by light bulbs in the lower part below the mattress and floor of the incubator which insulate and protect the patient from contact with such bulbs; that as a result of plaintiff's foot being allowed to remain in contact with the said lighted bulb during the course of the operation for a period of some one and one-half to two hours she sustained burns to her foot which ultimately necessitated the amputation of three-fourths of it, for which she sues.

The defendant, Dr. Patterson, was alleged to have been negligent (a) in failing to remove the cover of the incubator when he entered the operating room to determine whether plaintiff was properly placed in said incubator and whether the preheating 150 watt electric bulb was turned off; (b) in failing to test the incubator with an independent thermometer prior to performing the operation to determine whether excess heat was being produced; (c) in failing to make an inspection to determine whether or not parts of plaintiff's body had been placed in a position to be burned by the heating units contained in the incubator; (d) in failing to request the employees of the defendant hospital to make such an inspection; (e) in failing to test the incubator with an independent thermometer so as to use the proper heat and not burn the sensitive skin of a new-born infant; (f) in failing to place a shield of heat-resistant material between plaintiff's foot and the light bulb; (g) and, in neglecting and omitting to make close and continuous observation of plaintiff during the course of the operation so as to prevent injury to plaintiff.

The petition, as finally amended and as it stood after the trial court sustained certain special demurrers to paragraph 31 of the petition, alleged that the defendant hospital was negligent in the following respects: (a) In that its agents and employees failed to turn off said preheating 150 watt electric bulb prior to placing said infant in said incubator. (c) In placing said infant in said incubator and immobilizing said infant with her foot touching said preheating 150 watt electric bulb. (h) In failing to provide, when placing said infant in said incubator, a shield made of asbestos, or other heat-resistant material between the foot of said infant and said preheating 150 watt electric bulb. (j) In failing to warn defendant, Dr. Joseph H. Patterson, when he came into the operating room that said 150 watt electric bulb was still burning and that said infant had been immobilized in said incubator with her foot touching said bulb.

1. The general demurrers of the defendants, when considered together, present for the court's determination the question of what negligence and whose negligence constituted the proximate cause of the plaintiff's injuries, for it must be conceded that for the purpose of passing on the general demurrer, and taking the allegations of the petition as true, the plaintiff's injuries resulted from the negligence of someone, and that under the facts alleged the plaintiff has a cause of action against either one or both of the defendants. This is true because the plaintiff had a right to be secure in her person and to be protected from negligent injury while she was a patient in the defendant's hospital, and because of her tender age she, of course, cannot be guilty of any contributory negligence in any way contributing to her injury. The negligence question thus presented bears two facets, that is, first, the primary negligence of the persons actually strapping the plaintiff in the incubator with her foot touching a lighted 150 watt electric light bulb for which either the defendant hospital or the defendant physician must be responsible upon the application of the maxim of respondeat superior, and the secondary alleged negligence of the defendant physician in failing to ascertain the situation in which the plaintiff had been placed in the incubator and to correct or remedy that situation brought about by the primary negligence of the persons actually performing the task of strapping the plaintiff in the incubator.

With respect to the primary...