Salih v. Lane, 920093
| Decision Date | 06 November 1992 |
| Docket Number | No. 920093,920093 |
| Citation | 423 S.E.2d 192,244 Va. 436 |
| Parties | Hassan A. SALIH, M.D. v. Margaret Ann LANE. Record |
| Court | Virginia Supreme Court |
Gary A. Godard, Fairfax (Christine Mougin-Boal, Godard, West & Adelman, on briefs), for appellant.
R. Harvey Chappell, Jr., Richmond (Mary Metil Grove, Richmond, John A. Keats, Fairfax, Joel M. Finkelstein, Washington, D.C., Christian, Barton, Epps, Brent & Chappell, Richmond, on brief), for appellee.
Present: All the Justices.
In this damage suit brought by a nurse anesthetist against a psychiatrist for injuries allegedly received during administration of electric shock therapy by the psychiatrist to a patient, the central issue is whether the plaintiff's common-law action is barred on the ground that her exclusive remedy is under the Virginia Workers' Compensation Act (the Act).
In September 1990, appellee Margaret Ann Lane brought this action against appellant Hassan A. Salih, M.D., asserting that she was injured on September 14, 1988 in the Fairfax Hospital when electric current entered her body as the psychiatrist was administering electroconvulsive therapy (ECT) to one of his patients. The plaintiff alleged that the defendant failed to exercise reasonable care "in setting up, handling, and activating the electric shock equipment." Specifically, the plaintiff charged the defendant with failing to warn her and others "to stand clear of the stretcher and equipment before electronically activating the equipment" and failing to assure that they were indeed clear of the stretcher and equipment before delivering the electric shock. The defendant denied the allegations of negligence and asserted that the plaintiff was guilty of contributory negligence.
On the day before trial, the defendant filed a plea to the court's jurisdiction, asserting that the plaintiff's sole remedy was under the Act. The court refused to rule on the plea in advance of trial and took the matter under advisement.
After a four-day trial, a jury rendered a $1.2 million verdict in favor of the plaintiff. Overruling post-trial motions, including a motion based on the jurisdictional issue, the trial court entered judgment on the verdict. We awarded the defendant an appeal from the October 1991 final order.
On appeal, the defendant contends the trial court erred in failing to sustain the jurisdictional plea; in failing to rule as a matter of law that the defendant was free of negligence or, in the alternative, that the plaintiff was guilty of contributory negligence; and in refusing to set aside the verdict as excessive. According to settled principles of appellate review, we will consider the evidence in the light most favorable to the plaintiff, who comes to this Court armed with a jury verdict approved by the trial judge.
The record shows that ECT is the use of a small amount of electricity to induce a major seizure in a patient who has a severe psychiatric illness, notably severe depression. The use of anesthetic medication, muscle relaxants, and oxygen with the treatment has resulted in a minimal amount of medical risk to patients receiving ECT. While the medical profession does not know exactly "why ECT works" to improve illness, it is known that ECT, as well as antidepressant medications, affect a number of brain chemicals.
The electricity is delivered by machines which are sophisticated enough to elicit a controlled seizure under precise conditions using low amounts of electricity. The machines are calibrated to deliver from five joules of energy up to a maximum of 100 joules. Ten joules of electricity, according to the evidence, would cause a ten-watt light bulb to flicker for one second.
Normally, three persons working together closely in a hospital administer the therapy. They are the attending psychiatrist, an anesthesiologist or nurse anesthetist, and another nurse. The patient lies face up on a stretcher or table. The anesthetist is at the patient's head, the other nurse at the patient's feet, and the psychiatrist is positioned to the patient's left near the machine.
The psychiatrist, who supervises the procedure and is regarded as "the chief of the team," readies the machine, attaches electrodes at the proper time to the patient's head, and usually inserts a bite block in the patient's mouth to prevent damage to the patient's teeth and jaw. The nurse anesthetist starts an intravenous (IV) line, administers anesthesia to put the patient to sleep, gives a muscle relaxant to paralyze the patient, and puts a mask on the patient's face to ventilate (breathe for) the patient. This necessitates the placing of the anesthetist's left hand along the left side of the patient's face "holding the mask on." The other nurse connects the patient to monitors measuring brain activity, heart rate, and degree of oxygenation.
When the patient is paralyzed and electrodes are in place, the nurse anesthetist removes the mask and the psychiatrist inserts the bite block. Then, the psychiatrist must assure that "everybody is away from the table" so that electrical shock to them can be avoided. Usually a verbal warning is given by the psychiatrist "before the stimulation takes place." In order to deliver the electric current, the psychiatrist presses a button on the machine. After the seizure occurs, the anesthetist begins to ventilate the patient again until the patient resumes breathing unassisted.
On the day in question, the plaintiff, age 31, was employed as a nurse anesthetist by Fairfax Anesthesiology Associates, Inc., which was responsible for "fulfilling all of the anesthesiology needs that arose at Fairfax Hospital." The plaintiff had earned college degrees in both nursing and in anesthesia.
The defendant, a medical doctor specializing in psychiatry, practiced as a professional corporation. The corporation's only employees were the defendant and a part-time secretary.
The plaintiff had been assigned by her employer to Fairfax Hospital where ECT was to be administered in a recovery room on that day. The plaintiff reported to the room along with another nurse shortly before 8:00 a.m. The patient was brought to the room and the defendant arrived. The monitors had been connected to the patient and the IV was in place.
After greeting the patient, the defendant told the plaintiff "it was all right to go ahead." The plaintiff then administered the anesthesia and the muscle relaxant and began to ventilate the patient. The defendant placed electrodes on the patient's temples in a strap that was around the patient's head. At that point, the defendant's hands were working within the plaintiff's hands and arms.
Next, according to the plaintiff, the electrodes were connected to the machine and the plaintiff "continued to ventilate." The patient was not completely relaxed. The plaintiff's left hand was along the left side of the patient's face holding the mask in place and her right hand was on top of the bag squeezing it; apparently, her left hand was touching an electrode.
At that point, a student nurse was in the room and the defendant was explaining the procedure to her. While still conversing with the student, the defendant "reached down and flipped the switch" on the machine. According to the plaintiff, "the next thing I knew my hand was up in the air." She felt a tingling "all through" her hand. The plaintiff exclaimed, "Salih, you got me." A bite block had not been inserted and the defendant gave no warning before the current was delivered.
After the incident, the plaintiff continued to ventilate the patient until "spontaneous respirations came along." The plaintiff's hand "was totally numb and very weak."
Pertinent to the central issue in the appeal, the record reveals the following facts, although sparse, on the jurisdictional question. At the time of the incident, the plaintiff had been directed by her employer to administer anesthesia pursuant to the privileges she and her employer had at Fairfax Hospital to perform anesthesia services only. All decisions regarding the administration of anesthesia, including the dosage of anesthesia and muscle relaxants, were made by the plaintiff with and under the supervision of her employer. Should an emergency develop with the patient resulting from any anesthesia services rendered by the plaintiff, she was under orders to call for an anesthesiologist immediately to render emergency care.
All bills for the plaintiff's services were sent directly by her employer to the patient and were designated "anesthesia services."...
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