Simpson v. Sisters of Charity of Providence in Oregon

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: BRYSON
• Citation: Simpson v. Sisters of Charity of Providence in Oregon, 588 P.2d 4, 284 Or. 547 (Or. 1978)
• Decision Date: 19 December 1978
• Docket Number: No. 410-399,410-399
• Parties: Carl E. SIMPSON, Respondent, v. SISTERS OF CHARITY OF PROVIDENCE IN OREGON, d/b/a St. Vincent Hospital, Appellant. ; SC 25128.

Page 4

588 P.2d 4

284 Or. 547

Carl E. SIMPSON, Respondent, v. SISTERS OF CHARITY OF PROVIDENCE IN OREGON, d/b/a St Vincent Hospital, Appellant.

No. 410-399; SC 25128.

Supreme Court of Oregon.

Argued and Submitted July 12, 1978.

Decided Dec. 19, 1978.

[284 Or. 548-B] Edwin J. Peterson, Portland, argued the cause for appellant. With him on the briefs were Charles R. Holloway, III, and Tooze, Kerr, Peterson, Marshall & Shenker, Portland.

Richard P. Noble and R. Ladd Lonnquist, Portland, argued the cause and filed a brief, for respondent.

Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON, LENT and LINDE, JJ.

BRYSON, Justice.

Plaintiff brought this action against defendant hospital to recover for personal injuries suffered, alleging the hospital staff negligently failed to take adequate x-rays of plaintiff's cervical and thoracic spine. The jury returned a verdict in favor of plaintiff. Defendant appeals from the judgment entered on the verdict.

Defendant's first two assignments of error are the trial court's denial of its motions for a nonsuit and a directed verdict. When determining the propriety of such motions we view the evidence in a light most favorable to the plaintiff, and plaintiff is entitled to the benefit of all reasonable inferences that may be drawn from the evidence. Hendrix v. McKee, 281 Or. 123, 126, 575 P.2d 134 (1978).

We examine the evidence to determine if there is competent evidence, both as to causation and negligence, from which the jury could reach a verdict in favor of plaintiff.

Plaintiff built custom homes and was 60 years old on July 5, 1973, the time of his injury and the beginning of treatment. While working on a job he fell six feet off a scaffold, landing on his neck and shoulders. He was taken by ambulance to defendant hospital's emergency room. The physician on duty at the emergency room ordered x-rays of "(b)oth wrists, both forearms, AP chest, thoracic spine, cervical spine and skull." Several technicians began taking x-rays of plaintiff at 12:30 p. m. The technicians tried to obtain a picture of plaintiff's cervicothoracic junction, the point at which the cervical and thoracic portions of the spine join, by a cervical lateral film and six or seven "swimmer's views." The technicians changed their technique on approach from film to film in order to get a clear picture. The plaintiff's position on a stretcher and his pre-existing condition of rheumatoid spondilitis, which caused his head to tilt down and to the left side, made it difficult to obtain clear pictures. As a result, no clear x-rays of the junction were obtained. Nevertheless, there was evidence that without moving plaintiff and by making minor adjustments to the x-ray equipment, the technicians could have obtained a clear view of the junction. In fact, x-rays taken at a later date showed the cervical thoracic junction adequately for diagnostic purposes.

There is evidence that the plaintiff's physicians, after numerous x-rays, believed that the x-rays taken were the best that could be obtained under the circumstances and so the taking of x-rays was discontinued at 2:20 p. m. on December 5. One of plaintiff's physicians decided to order another x-ray of the cervical thoracic junction the next day, July 6, but this order was countermanded by another of plaintiff's physicians, Dr. Watson, a neurologist. Dr. Watson gave no reason for his action; however, there is evidence from which the jury could reasonably have inferred that Dr. Watson felt that the best possible x-rays had been taken and there was no point in moving plaintiff in an attempt to take further x-rays.

Plaintiff was immobilized from the time he arrived at the hospital. There is evidence that this strict immobilization could impair plaintiff's pulmonary function. In fact, plaintiff later suffered from lung congestion. For this reason, on July 8 Dr. Watson ordered plaintiff "dangled," meaning plaintiff sat on the bed with his legs dangled over the side. Dr. Watson was not concerned about a possible fracture in plaintiff's spine at the cervical thoracic junction. He testified:

"Q Were you concerned then in any way about a possible fracture in the C-7/T-1 area?

"A Well, not per se. The clinical symptoms didn't point to that. The clinical symptoms that he had would have pointed to a lesion, as I said, somewhere from about D-10 centrally towards the skull and could have been anywhere from there on up. We did not see, as everyone I'm sure has heard endlessly, the entirety of his cervical-thoracic spine on x-ray to our satisfaction in that first set of several days of x-rays. But there was no more reason to suspect a lesion there than there might have been in other areas, no more clinical reason, excuse me."

Nevertheless, plaintiff had a fracture at the cervical thoracic junction resulting from the fall and when he was dangled the fracture compressed the spinal cord, paralyzing plaintiff from the shoulders down.

Plaintiff brought this action against his physicians and defendant hospital. He settled his action against the physicians for $150,000, leaving only the hospital as defendant.

Under defendant's first two assignments of error, the trial court's failure to allow defendant's motions for nonsuit and a directed verdict, defendant makes three separate arguments: (a) the defendant's x-ray technicians were not negligent because they were following doctors' orders; (b) the x-ray technicians were under the supervision and control of the treating physicians; and (c) "there is no causation in fact between the failure to take films showing the fracture on the 5th, and the ambulation on the 8th."

(a) The evidence shows that following plaintiff's admittance at the emergency room, plaintiff was taken to the x-ray department with orders to take x-rays of the thoracic and cervical spine. A chief x-ray technician and an assistant technician are in charge of the x-ray technicians in that department. All such technicians are defendant's employees. In taking x-rays, the technicians follow instructions from the hospital's booklet, ¹ which was received in evidence, showing the procedure to be followed for taking x-rays ordered, including "cervical spine trauma acute" and "thoracic spine." This is undoubtedly a text familiar to x-ray technicians and radiologists on the procedure for taking x-ray films. This was the procedure followed by the hospital in this case. The x-ray technicians are certified by a National Board after training and study in anatomy and physiology, radiographic positioning, x-ray physics, darkroom chemistry, nursing procedures, and terminology. A certain grade point must be achieved on examination "to be certified technicians or registered technicians."

The hospital administrator, Dr. Lee, testified that the technicians take the x-ray films per prescription or order. He testified:

"A * * * (A)ll x-rays are done on a physician's order. And normally, this is an order like a prescription issued by a physician on our Medical Staff. The patient comes in and says, 'I need an x-ray,' and they usually have a prescription for it. * * * (T)he picture is then taken and the film interpreted by the radiologist (M.D.) that is on duty. Occasionally, he may decide that another film is in order, whatever. Most of the time when this is done, he will get hold of the attending physician and consult with him to verify that indeed additional or supplemental films need to be taken."

There is no radiologist in the x-ray room while the x-ray technicians are performing their duties and normally the radiologist does not see or consult with the patient.

Dr. Watson testified:

"Q You don't give them specific instructions about how many milliamps to deliver?

"A No, sir. I wouldn't know how.

"Q Or whether they should use a grid?

"A Um, I'm familiar enough with the techniques of what you can get with and without a grid, but I would never attempt to offer that advice to them (the x-ray technicians).

"Q And you did not in this case?

"A Not to my recollection. * * *.

" * * *.my "A Um, well, in fact, to be precise, none of them (radiologists) were in the room when the x-rays were being taken because I don't stay in the room when the x-ray is being done. * * *."

There is, of course, some evidence to the contrary but the preponderance of evidence is to the effect that the hospital's employees, the technicians, were not under doctors' orders as to technique in taking and developing x-ray films. The jury could believe the evidence that showed the x-ray technicians to be negligent in failing to obtain a clear film of the cervical thoracic junction and that the technicians were not following the physicians' orders as to technique.

(b) Much of the above testimony, together with other evidence in the record, was sufficient to allow the jury to find that the x-ray technicians were not under the supervision and control of the treating physicians when performing their duty of taking and developing x-ray films of plaintiff's cervical thoracic junction of the C7/T-1 area.

Intertwined with this argument and that made in argument (a), the defendant asserts the so-called "Captain of the Ship" rule to the effect that "hospitals' support personnel are obligated to carry out the orders of the doctors, and so long as the order is carried out in a competent manner, hospital personnel are not negligent." (Citing Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975); Stogsdill v. Manor Convalescent Home, Inc., 35 Ill.App.3d 634, 343 N.E.2d 589, 612 (1976); Mesedahl v. St. Luke's Hospital Ass'n of Duluth, 194 Minn. 198, 259 N.W. 819, 822 (1935), and cases from other jurisdictions.)

Oregon has not expressly adopted such a rule and the facts of this case do not require that we do so because said rule only excuses hospital personnel who carry out physicians' orders in a competent manner. The jury in this case could have found from the evidence that the orders were not carried...