Sparger v. Worley Hospital, Inc.

• Decision Date: 12 January 1977
• Docket Number: No. B-5721,B-5721
• Citation: 547 S.W.2d 582
• Parties: Dr. C. F. SPARGER, Petitioner, v. WORLEY HOSPITAL, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 582

547 S.W.2d 582

Dr. C. F. SPARGER, Petitioner, v. WORLEY HOSPITAL, INC., et al., Respondents.

No. B-5721.

Supreme Court of Texas.

Jan. 12, 1977.

On Rehearing March 2, 1977.

Stokes, Carnahan & Fields, Richard E. Stokes, Jr., Amarillo, for petitioner.

Anderson, Henley, Shields, Bradford, Pritchard & Miller, L. W. Anderson, Dallas, Buzzard & Comer, Ross N. Buzzard, J. B. McGuire, Jr., Pampa, for respondents.

POPE, Justice.

This is a medical malpractice case. The plaintiff Sylvia Caldwell sued Worley Hospital, Inc. and Dr. C. F. Sparger for injuries resulting from the failure to remove a sponge from Mrs. Caldwell's abdominal cavity after an operation. The trial court rendered judgment on a jury verdict for plaintiff The jury by its verdict found that someone in the group comprising Dr. Sparger, Dr. Bellamy, and the surgical nurses was negligent with respect to the sponge that was found in Mrs. Caldwell's abdomen. The jury found that this negligence was the proximate cause of Mrs. Caldwell's injury. The jury refused to find that Dr. Sparger failed to exercise ordinary care by looking for the sponge in question before closing the incision in plaintiff's abdomen. The jury did find that Wanda Ensey, Marjie Holland, Geneva Finney, (nurses) or any of them, failed to make a correct sponge count and this negligence was the proximate cause of Mrs. Caldwell's injury. The jury refused to find that in watching after the sponges the three nurses were the borrowed servants of Dr. Sparger.

against Worley Hospital only. The court of civil appeals reversed that judgment and held that Dr. Sparger under the captain of the ship doctrine was liable as a matter of law and that the defendants were jointly and severally liable. 529 S.W.2d 639. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The plaintiff did not sue the nurses, and Dr. Bellamy has gone out of the case by reason of an instructed verdict in his favor. The jury answers exonerated Dr. Sparger from every act of negligence for which he was charged and found instead that the nurses were negligent. Dr. Sparger is therefore before us with an application for writ of error in which he insists that the court of civil appeals should not have held him vicariously liable as a matter of law for the negligence of the nurses under the so-called captain of the ship doctrine. Worley Hospital's application contends that Dr. Sparger must bear the sole liability since the captain of the ship doctrine made the nurses his exclusive employees. The issue presented is whether Dr. Sparger is liable as captain of the ship notwithstanding the finding that the nurses were not his borrowed servants.

If this was anything but a malpractice case, the question before us would be resolved by the jury's refusal to find that Dr. Sparger had borrowed the Worley Hospital's nurses so as to make them his employees. Mrs. Caldwell sought to hold Dr. Sparger vicariously liable for the improper sponge count by submitting the following special issue concerning the employment relationship between the surgeon and the assisting nurses:

SPECIAL ISSUE NUMBER FOUR:

Do you find from a preponderance of the evidence that in watching after the lap packs Wanda Ensey, Marjie Holland and Geneva Finney were borrowed employees of Dr. Sparger?

A "Borrowed Employee", as used in this charge, means one, who, while in the general employment of the hospital, is subject to the right of the physician to direct or control the details of the particular work inquired about, and is not merely cooperating with suggestions of said physician.

An employee in the general employment of one employer may be temporarily loaned to another so as to become a borrowed employed (sic) of the second employer. Under these circumstances, a person may serve two masters simultaneously and at times only momentarily.

Answer "Yes" or "No"

ANSWER: No

Texas has long recognized that a general employee of one employer may become the borrowed servant of another. J. A. Robinson Sons, Inc. v. Wigart, 431 S.W.2d 327 (Tex.1968); Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.1963). Restatement (Second) of Agency § 227 (1958). Under the borrowed servant doctrine the essential inquiry would be whether or not the surgeon had the right to control the assisting nurses in the details "of the specific act raising the issue of liability." J. A. Robinson Sons, Inc. v. Wigart, supra at 330. The right of control is ordinarily a question of fact. See J. A. Robinson Sons, Inc. v. Wigart, supra; Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964).

The principle of borrowed servant cuts across the entire law of principal and agent and employer and employee, and is therefore also applicable to the legal relationships between a physician or surgeon and a nurse. Physicians and surgeons are and should be subject to the usual rules applicable to borrowed servants. In some jurisdictions, however, there has been imposed upon the medical profession, a special and more onerous form of vicarious liability. Our question is whether they should have an extra liability imposed upon them.

The phrase "captain of the ship", was first employed in the medical malpractice context in the case of McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1959). It was used in that case as an apt analogy but in some jurisdictions the phrase has grown into a separate and independent concept of agency which specially applies to medical malpractice cases. Rockwell v. Stone, 404 Pa. 561, 173 A.2d 48 (1961); Yorston v. Pennell, 397 Pa. 28, 153 A.2d 255 (1959); Mazer v. Lipschutz, 327 F.2d 42 (3d Cir. 1963); Young, Separation of Responsibility in the Operating Room: The Borrowed Servant, the Captain of the Ship and the Scope of Surgeons' Vicarious Liability, 49 Notre Dame Lawyer 933 (1974).

In naval parlance, the captain of a ship is in total command and is charged with full responsibility for the care and efficiency of the ship and the welfare of all hands. His authority over his own ship and crew is supreme. The captain does not, however, assume personal responsibility for the acts of misconduct or for the criminal deeds committed by the individual men aboard his ship. The court in McConnell did not in fact, impose liability upon the surgeon under its handy phrase which characterized him as the captain of the ship. The court instead ruled that "(i)t is for the jury to determine whether the relationship between defendant and the interns, at the time the child's eyes were injured, was that of master and servant. . . ." The court remanded the cause for the factual determination. Other medical malpractice cases have treated the disputed borrowed servant issue in the same manner, as one of fact.

Similes sometimes help to explain a factual situation, but in legal writing, phrases have a way of being canonized and of growing until they can stand and walk independently of the usual general rules. Mr. Justice Frankfurter once wrote concerning such phrase-making in judicial opinions: "The phrase . . . is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas." Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1942). The result in the use of captain of the ship is that a surgeon or physician may be held liable, not as others upon the basis of the general rule of borrowed servant, but as captain of the ship.

The jurisdiction which first employed the metaphor has now retreated from the concept so that occurrences in the operating room might be brought back to the confines of the more general borrowed servant concept. The court in Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971), said that the captain of the ship example was intended as an adaptation of the familiar borrowed servant principle that applies generally in the law of agency. See Note, Malpractice-Vicarious Liability of an Operating Surgeon, 10 Duquesne L.Rev. 117 (1971). Hence, where there are inconsistent factual inferences concerning the servant's employer which can be reasonably drawn from evidence, the issue should be resolved factually as any other borrowed servant issue. Buzan v. Mercy Hospital, 203 So.2d 11 (D.Ct.App.Fla.1967); Danks v. Maher, 177 So.2d 412 (La.Ct.App.1965); Campbell v. Thornton, 333 N.E.2d 442 (Mass.1975); Synnott v. Midway Hospital, 287 Minn. 270, 178 N.W.2d 211 (1970); Nichter v. Edmiston, 81 Nev. 606, 407 P.2d 721 (1965); Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974); Annot., 12 A.L.R.3d 1017, 1021 (1967).

This court has not previously addressed the question of the adoption of the captain of the ship doctrine as a basis for a surgeon's liability in addition to his responsibility under the borrowed servant doctrine. In Webb v. Jorns, 488 S.W.2d 407 (Tex.1973), the application of the captain of the ship doctrine was not an issue since the physicians conceded that they were subject to liability for actions of any of the persons under their supervision in the operating room. 488 S.W.2d at 411. In McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.1965, writ ref'd n. r. e.), the court approved the doctrine. The judgment in that case, however, was not grounded upon the mere presence of the surgeon in the operating room but, as the opinion stated, upon the admitted fact that the doctor had absolute right of control of all personnel in the operating room during the operation. Later, Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.1968, writ ref'd n. r. e.), followed McKinney without discussion.

We now disapprove McKinney and Harle insofar as they suggest that a surgeon's mere presence in the operating room makes him liable as a matter of law for the negligence of other...