Swindell v. St. Joseph's Hospital, Inc.

• Decision Date: 04 January 1982
• Citation: 161 Ga.App. 290,291 S.E.2d 1
• Parties: SWINDELL et al. v. ST. JOSEPH'S HOSPITAL, INC. et al. 62827.
• Court: Georgia Court of Appeals

Page 1

291 S.E.2d 1

161 Ga.App. 290

SWINDELL et al. v.ST. JOSEPH'S HOSPITAL, INC. et al.

62827.

Court of Appeals of Georgia.

Jan. 4, 1982.

Rehearing Denied Feb. 17, 1982.

Certiorari Denied April 8, 1982.

Edward M. Buttimer, Savannah, for appellants.

Joseph P. Brennan, Savannah, for appellees.

McMURRAY, Presiding Judge.

This is a medical malpractice case in which the plaintiffs sued a professional corporation of doctors, a medical doctor as an employee of the corporation, and a hospital, wherein the plaintiff patient contends he was injured when the medical doctor defendant performed a myelogram in which certain agents and employees of the hospital were also present and performed medical services for that defendant and within 24 hours thereafter he developed an infection and fever eventually diagnosed as being "bacterial meningitis."Joining with this plaintiff was his wife who sought damages for loss of her husband's consortium.

Plaintiffs contend either the defendant doctor or the agents and employees of the defendant hospital, acting under the supervision of the doctor or acting independently of his supervision but as employees and agents of the hospital or both the medical doctor and the hospital, "failed to exercise the proper degree of skill and care necessary to prevent Plaintiff[']s contracting bacterial meningitis in that they negligently failed to prevent contamination of either Plaintiff's skin, the instruments used during the myelogram or the solution injected into Plaintiff as part of the myelogram procedure."

The defendant doctor and the defendant professional corporation answered, inter alia, denying the claims and contending at all times the medical doctor exercised the degree of care and skill that is ordinarily employed by members of the medical profession under similar circumstances.These defendants also filed a motion to dismiss.The defendant hospital answered denying the claims and denying that it or any of its employees, agents and servants or the defendant doctor were negligent.This defendant contends that at all times material hereto the defendant doctor was acting as an independent contractor and not as an agent for the hospital.The hospital also contends plaintiffs' action is barred by the statute of limitation.

After discovery defendant doctor and defendant professional corporation, and the defendant hospital separately, moved for summary judgment based mainly upon the affidavit of the defendant medical doctor who set forth his qualifications as a medical expert in that he had performed between 3,000 and 4,000 myelograms in the past, that he performed the myelogram on the plaintiff, describing in detail how same was performed and the technique used, stating that there was no break in sterile technique and that the patient "developed a chemical meningitis which is very common after a pantopaque myelogram," later diagnosed as being a "bacterial meningitis," which was "appropriately treated."He further deposed that he properly "prepped" the patient and "performed the procedure in a medically accepted and recognized manner and ... exercised the degree of care and skill that is generally employed by physicians under similar circumstances," and the meningitis "was not caused by a failure ... to exercise the degree of care and skill that is generally employed by physicians under similar circumstances."He also deposed that he performed the procedure the way he had always done it and "employed all standard precautions to prevent contamination or any other untoward result," making the recitals upon his personal knowledge.

After a hearing in consideration of the entire record, the trial court granted the defendants' motions for summary judgment and also sustained the hospital's motion to dismiss.Plaintiffs appeal.Held :

1.The hospital may be liable for the negligent acts of its servants and employees in carrying out the physician's instructions in performing administrative or clerical acts requiring no medical judgment.SeeMiller v. Atkins, 142 Ga.App. 618, 619, 236 S.E.2d 838;Porter v. Patterson, 107 Ga.App. 64, 129 S.E.2d 70.When a hospital yields control of its employees to a surgeon in the operating room and the surgeon exercises immediate personal supervision over these employees, then he becomes their master and their negligence during the course of the master servant relationship will be imputed to him.Miller v. Atkins, supra.Under the evidence here the medical doctor was in charge of the entire procedure, hence if a hospital employee committed any negligent act such negligence would be imputed to the defendant doctor.However, the defendant doctor offered expert opinion testimony negating...