Ross v. Chatham County Hosp. Authority

• Decision Date: 04 May 1988
• Docket Number: No. 45208,45208
• Citation: 258 Ga. 234,367 S.E.2d 793
• Parties: ROSS v. CHATHAM COUNTY HOSPITAL AUTHORITY.
• Court: Georgia Supreme Court

Page 793

367 S.E.2d 793

258 Ga. 234

ROSS v.CHATHAM COUNTY HOSPITAL AUTHORITY.

No. 45208.

Supreme Court of Georgia.

May 4, 1988.

Reconsideration Denied May 25, 1988.

Thomas R. Taggart, Taggart & Lakin, Savannah, Samuel L. Svalina, Beaufort, S.C., for Herbert Charles Ross.

William P. Franklin, Jr., Wendy Woods Williamson, William H. Pinson, Jr., Savannah, for Chatham County Hosp. Authority, d/b/a Memorial Medical Center.

Thomas S. Carlock, Allen F. Harris, amici curiae.

CLARKE, Presiding Justice.

In this casewe consider the "borrowed servant" rule in the context of a medical malpractice during a surgical procedure in a hospital operating room.We must decide under what circumstances the hospital employee assisting in the procedure becomes the employee of the surgeon so as to impute the negligence of the employee to the surgeon under the rule of respondeat superior.

Ross, the plaintiff in this case, sued the surgeon and the Chatham County Hospital Authority for malpractice on account of an instrument's being left in his abdomen during surgery.The hospital moved for summary judgment.The trial court granted partial summary judgment to the hospital on the issue of the standard of care in connection with the hospital employees' responsibility to conduct an instrument count.Finding that the applicable standard of care was the standard of care in the locality, the court granted the hospital summary judgment on that issue since the hospital's unrebutted affidavit testimony was that no surgical instrument count was required in the locality in 1974 when the operation occurred.This grant of partial summary judgment has not been appealed.The court denied the hospital's motion for summary judgment as it concerned release from liability under the "borrowed servant" rule.In considering the transfer of liability for employee negligence from the hospital to the surgeon, the trial court based its decision on the cases of McClure v. Clayton County Hospital Authority, 176 Ga.App. 414, 336 S.E.2d 268(1985), andSwindell v. St. Joseph's Hospital, Inc., 161 Ga.App. 290, 291 S.E.2d 1(1982).The trial court interpreted these cases to require both that the hospital yield control of the employees to the surgeon and that the surgeon assume direct personal supervision of the employees before liability for their negligence was transferred from the hospital to the surgeon.

The Court of Appeals reversed, Chatham County Hospital Authority v. Ross, 184 Ga.App. 660, 362 S.E.2d 290(1987), questioning the trial court's interpretation of these cases as requiring competent evidence of immediate supervision beyond the mere presence of the surgeon.However, the Court of Appeals held that even if the trial court were correct in its interpretation of McClure and Swindell, the requirement of immediate supervision was satisfied.According to the Court of Appeals, the surgeon's statement in his deposition that he was in charge of the operating room and the plaintiff's failure to rebut the hospital's contention that the surgeon was present in the operating room at all times during the surgery evidenced immediate supervision.

1.We reaffirm the test set forth in Miller v. Atkins, 142 Ga.App. 618, 236 S.E.2d 838(1977), and reiterated in McClure and Swindell for the transfer of liability under the borrowed servant rule in the setting of a surgical procedure performed in a hospital operating room.First, the hospital which seeks to escape liability must show that it has yielded control of its employees who are assisting in a surgical procedure.Next, the hospital must show that the employees whose negligence the hospital seeks to impute to the surgeon are under the "immediate supervision" of the surgeon.Miller v. Atkins, supra, at 619, 326 S.E.2d 838.We agree with the trial court that "immediate supervision" must be shown by competent evidence.Evidence of the presence of the surgeon in the operating room falls short of this...