Sharon Albain, Admnx. Jonathan Albain v. Flower Hospital
| Decision Date | 04 November 1988 |
| Docket Number | L-87-290,88-LW-3769 |
| Parties | Sharon ALBAIN, Admnx., et al. Jonathan Albain, Plaintiffs-Appellants, v. FLOWER HOSPITAL, et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
E.J Leizerman, for appellants.
E. Thomas Maguire, for appellee Flower Hospital.
Thomas J. Manahan, for appellee John Crayne, M.D.
This cause is before the court on appeal from a judgment of the Lucas County Court of Common Pleas.
The record indicates that on the morning of April 18, 1984, plaintiff-appellant Sharon Albain, near a full term pregnancy, began vaginally discharging blood. At approximately 2:00 p.m., she was transported by ambulance to Flower Hospital, defendant-appellee, and on admission was seen briefly by a Flower Hospital resident, Dr. William Billings. Dr. Billings contacted Dr. John Crayne, defendant-appellee, Mrs. Albain's treating physician. Because Dr. Crayne did not have privileges at Flower Hospital he instructed Dr. Billings to assign the responsibility of Mrs. Albain's care to the on-call attending obstetrician.
At approximately 2:30 p.m., Dr. Billings contacted the on-call physician, defendant Dr. Samira Abbo. Dr. Abbo gave some orders and was called again at 3:50 p.m. At that time Dr. Abbo indicated that she would come to the hospital at 5:30 p.m. to evaluate Mrs. Albain. When Dr. Abbo failed to arrive by 7:00 p.m., Nurse Anita Graves contacted Dr. Abbo and requested she come to the hospital. Mrs. Albain was finally seen by Dr. Abbo at approximately 8:00 p.m. Thereafter, Dr. Abbo contacted Dr. Crayne to discuss Mrs. Albain's condition. A decision was made to transfer Mrs. Albain to Riverside Hospital. Mrs. Albain was admitted to Riverside Hospital at approximately 10:00 p.m.
Dr. Crayne was notified of Mrs. Albain's admittance and proceeded to Riverside Hospital. After examining Mrs. Albain, Dr. Crayne, a general practitioner, contacted Dr. Christopher Marlow, an obstetrician/gynecologist to perform a caesarean section.
The infant, Jonathan Albain, was delivered April 18, 1984, at approximately 11:49 p.m. by caesarean section. At the time of his birth Jonathan Albain was profoundly retarded and brain damaged. On June 17, 1984, Jonathan Albain died.
Appellants filed a cause of action setting forth a wrongful death claim and a survivorship claim. Appellants alleged, among other things, that Dr. Abbo and Flower Hospital, acting individually or through their agents, failed to diagnose Mrs. Albain's condition as placenta abruption. Further, appellants allege that Dr. Crayne failed to respond to Mrs. Albain's condition as presented to him by Dr. Abbo and Flower Hospital. The case was submitted to arbitration and on October 31, 1986, the arbitration panel found in favor of all defendants. Appellants rejected the arbitration decision and filed an amended complaint in the common pleas court. Separate motions for summary judgment were filed on behalf of Flower Hospital and Dr. Crayne. The trial court granted summary judgment on the issue of liability on behalf of both defendants. The case against Dr. Abbo remains pending in the trial court. From this judgment appellants have set forth the following assignments of error:
Appellee Flower Hospital has also set forth an assignment of error:
"The Trial Court Erred In Failing To Decide The Motion For Summary Judgment On The Issue Of Damages."
We begin our review by noting that on a motion for summary judgment, the moving party has the burden of showing that no genuine issue exists as to any material fact and that they are entitled to judgment as a matter of law. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. When such a motion is made:
Hence, we must determine whether there exists a genuine issue of material fact as to liability in the instant case. In the first assignment of error, appellants contend that there is indeed a genuine issue as to negligence on the part of Flower Hospital and its employees. In the second assignment of error, appellants contend that there is a genuine issue as to whether Dr. Abbo was acting as an apparent agent of Flower Hospital. To facilitate our review, the first two assignments of error will be discussed together.
The linchpin issue in both assignments of error is the extent of Flower Hospital's duty in the instant case. By way of an overview, a hospital may be found negligent pursuant to three separate theories of liability. A hospital may be found (1) vicariously liable for the negligence of its employees under the doctrine of respondeat superior; (2) directly liable for its own negligence in the selection of non-employees for staff privileges (independent contractors) under the doctrine of corporate negligence; and (3) vicariously liable for the negligence of non-employee physicians under the theory of apparent agency.
In addressing the question of the hospital's liability under respondeat superior, appellee contends that the sole legal duty of their nurses and resident physicians, to carry out Dr. Abbo's orders, was fulfilled. As authority for this proposition appellee, as well as the trial court, relies on Martin v. Children's Hospital (Apr. 29, 1980), Franklin App. No. 79 AP-806, unreported, and Johnson v. Grant Hospital (1972), 32 Ohio St.2d 169. Such reliance, however, is misplaced.
In Martin, supra, plaintiffs' decedent, a nineteen month old boy, was admitted to defendant Children's Hospital with defendant Dr. Ann Rogers as the attending physician. Defendants, Dr. Olivia Thomas, a first year resident and Dr. Gary Friedenberg, a second year resident, both employed by the hospital, assisted in decedent's hospital stay. At trial, plaintiffs presented expert testimony that the attending physician, Dr. Rogers, was negligent in prematurely discharging decedent. The case against Dr. Rogers proceeded to the jury. The court, however, directed a verdict in favor of all remaining defendants.
In affirming the decision of the trial court, the appellate court noted that the resident physician's duty is limited to following the attending physician's orders. Martin, however, does not stand for the proposition that this is the sole legal duty of resident physicians. Although resident physicians, as well as the rest of the medical staff, do not appear to have a duty to countermand the orders of an informed attending physician, they must, however, keep the attending physician fully informed of the patient's condition. As noted by the Martin court:
" * * * reasonable minds could only conclude that both Dr. Thomas and Dr. Friedenberg performed properly their duties with respect to the discharge of plaintiffs' decedent from defendant hospital, if Dr. Thomas fully informed Dr. Rogers of the patient's condition at the time of the telephone call * * *." Martin at 6. (Emphasis added.)
Thus, the professional medical staff of a hospital, including resident physicians, has a duty to communicate to the attending physician all conditions and circumstances concerning a patient which would or could affect the attending physician's decision as to the proper course of medical treatment. In Martin, the court found that the resident physicians had fully informed the attending physician of all pertinent information, thereby discharging their legal duty. This finding is not inconsistent with our holding that resident physicians have an independent duty to keep the attending physician fully informed.
Similarly, in Johnson v. Grant Hospital, supra, also relied on by appellee, the staff of defendant hospital was found to have fulfilled its duty upon following the instructions of the plaintiff-decedent's attending physician. As in Martin, supra, the hospital staff in Johnson had fully "briefed" the attending physician on the patient. Having done so, the Johnson court found no additional duty on the part of the hospital staff. Johnson, therefore, is also consistent with our holding herein that residents must keep the attending physician fully informed.
Hence in addressing the liability of Flower Hospital under the doctrine of respondeat superior, the issue is not limited to whether the hospital staff carried out Dr. Abbo's orders. The proper inquiry is whether there exists an issue of fact as to whether the staff fully informed Dr. Abbo of all the conditions and circumstances which would or could have affected Dr. Abbo's decision...
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