Schagrin v. Wilmington Medical Center, Inc.

• Decision Date: 08 March 1973
• Citation: 304 A.2d 61
• Parties: Martin A. SCHAGRIN, Administrator of the Estate of Terry Johnson, Plaintiff, v. WILMINGTON MEDICAL CENTER, INC., a corporation of the State of Delaware, Defendant.
• Court: Delaware Superior Court

Page 61

304 A.2d 61

Martin A. SCHAGRIN, Administrator of the Estate of Terry

Johnson, Plaintiff, v. WILMINGTON MEDICAL CENTER, INC., a corporation of the State

of Delaware, Defendant.

Superior Court of Delaware, New Castle County.

March 8, 1973.

Morton Richard Kimmel, Wilmington, for plaintiff.

Rodney M. Layton, Jane R. Roth, Richards, Layton & Finger, Wilmington, for defendant.

OPINION

O'HARA, Judge.

On July 1, 1969, Terry Johnson, a nine year old child, fell on a sidewalk while playing with other children. She received a two and one-half inch cut on her left leg just below the knee from a broken soda bottle. Her sister, Shirley Johnson, immediately took her the the Emergency Room of the Delaware Division, of the Wilmington Medical Certer. At the Emergency Room she was treated by the physician in charge who cleaned the wound and closed it with stitches. She was instructed by the physician to see her family doctor within five days.

However, on Sunday, July 6, 1969, the child returned to the same Emergency Room complaining of continuing pain. She was treated by the physician in charge, a different one than the one who had treated her on the first occasion, who noted a tremendous swelling in the knee area and removed an Ace bandage from her leg which had been applied by the first physician. The second physician noted an early infection, directed that the leg be elevated and removed two stitches to permit drainage. He further instructed the child and her mother to soak the cut with warm Dial soap solution every one-half hour. He further stressed that she should return the next morning to the Surgery Clinic.

On July 7, 1969, when the child returned to the Surgery Clinic, she was admitted to the hospital. Thereafter cultures were taken of the wound and other tests administered and, in time, antibiotics given. However, the infection was not controlled and on July 12, 1969, Terry Johnson died.

This is an action by the Administrator of the Estate of the deceased child, against the defendant, operator of the hospital involved, in which damages are sought pursuant to 10 Del.C. § 3704(a), (b). The posture of the case at present is that defendant has moved for summary judgment on the basis that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.

Defendant's contentions may be summarized as follows:

1. The defendant, the record discloses, entered into an agreement with a partnership known as Doctors For Emergency Services ('DFES') to provide the professional services of medical doctors for the operation of emergency facilities which included the hospital known as Delaware Division. The two doctors who treated the deceased child on July 1, 1969 and July 6, 1969, were duly authorized physicians employed by DFES pursuant to the agreement between DFES and defendant. As a consequence the negligence, if any, of these physicians cannot be attributed to the defendant inasmuch as the services rendered were performed by an independent contractor, neither the agent nor servant of defendant.

2. Plaintiff alleges that the defendant was negligent not only in the Emergency Room but also in the treatment administered to the deceased child after her admission to the hospital. Defendant, based upon an affidavit of a competent medical doctor filed in the record, has presented, in the record, evidence that the treatment administered to the deceased child was the accepted treatment for the condition involved. Plaintiff, on the other hand, has produced no medical support for its contentions relative to treatment other than quotations from a text, Cantor, Traumatic Medicine and Surgery for the Attorney, cited by plaintiff in his brief and argument but not otherwise a part of the record in this case. Summary judgment should be granted to defendant because there is nothing in the record to support the contentions, the medical publications referred to in argument not being admissible as evidence at trial, and Rule 56(e), Del.C.Ann., requires plaintiff to produce a more formal opposition in order for the action to survive.

Summary judgment is granted only if the undisputed facts indicate that the moving party is entitled to a judgment as a matter of law. In testing this principle against the record in a given case, the Court must accept, the facts stated in a light most favorable to the non-moving party. Hazewski v. Jackson, 266 A.2d 885 (Del.Super.1970). Any reasonable hypotheses by which the opposing party might recover is a sufficient basis for denial of such judgment. So also must such judgment be denied if there is a material fact in dispute, or a dispute as to the inferences which might be drawn therefrom. Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718 (Del.Supr.1970); McGahey v. Swinehart, 267 A.2d 469 (Del.Super.1970).

The generally accepted principle of law is that the employer of an independent contractor is not liable for the torts of such contractor or his servants, even though the employer be a hospital and the independent contractor be a physician or surgeon guilty of negligence or malpractice in connection with medical services rendered by the physician in the hospital. 69 A.L.R.2d 315. However, a number of exceptions have been noted to such general principle of law. It has been determined, for example, that when one has undertaken to do a certain thing or to do it in a particular manner, he cannot, by employing an independent contractor, avoid liability for injury resulting from a nonperformance of duties assumed by the independent contractor under his agreement. Giusti v. C. H. Weston Co., 165 Or. 525, 108 P.2d 1010 (1941) (Negligence on the part of a hospital association engaged in providing medical services to members of a football team pursuant to an agreement with a high school).

It should be noted initially that a private hospital, such as the one here involved, is under no legal obligation to the public to staff and maintain an emergency treatment facility for the public. Wilmington General Hospital v. Manlove, 4 Storey 15, 174 A.2d 135 (Del.Supr.1961). Once having established an emergency room, however, the issue remains whether or not services performed therein are performed by agents or servants of the hospital or whether they are performed by independent contractors. In Vanaman v. Milford Memorial Hospital, Inc., supra, the Delaware Supreme Court, in a somewhat different medical setting, nevertheless, held that the question of agency was a crucial question to be determined after considering such...