Themins v. Emanuel Lutheran Charity Bd.

• Decision Date: 14 January 1982
• Docket Number: No. A7906-02685,A7906-02685
• Citation: 54 Or.App. 901,637 P.2d 155
• Parties: Joseph THEMINS, Appellant, v. EMANUEL LUTHERAN CHARITY BOARD, a corporation, doing business as Emanuel Hospital; and Dr. Jonathan Hoppert, Respondents, and Dr. Donald M. Perry, Defendant. ; CA A20072.
• Court: Oregon Court of Appeals

Page 155

637 P.2d 155

54 Or.App. 901

Joseph THEMINS, Appellant, v. EMANUEL LUTHERAN CHARITY BOARD, a corporation, doing business as Emanuel Hospital; and Dr. Jonathan Hoppert, Respondents and Dr. Donald M. Perry, Defendant.

No. A7906-02685; CA A20072.

Court of Appeals of Oregon.

Argued and Submitted Sept. 9, 1981.

Decided Dec. 1, 1981.

Reconsideration Denied Jan. 14, 1982.

Elden M. Rosenthal, Portland, argued the cause for appellant. With him on the briefs was Charles Paulson, P. C., Portland.

Robert M. Keating, Portland, argued the cause for respondent Emanuel Lutheran Charity Bd. On the brief were William L. Hallmark, and Lang, Klein, Wolf, Smith, Griffith & Hallmark, Portland.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent Dr. Jonathan Hoppert. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P. J., JOSEPH, C. J., and VAN HOOMISSEN, J.

JOSEPH, Chief Judge.

This is a medical malpractice case in which plaintiff seeks damages from Dr. Hoppert and Emanuel Lutheran Charity Board, doing business as Emanuel Hospital (Emanuel). ¹ On June 10, 1977, plaintiff suffered an injury to his right foot. He was taken to Emanuel, where he was examined by Dr. Herdener and Dr. Perry. He was then seen by Dr. Hoppert, who was serving as an orthopedic resident on a rotation from the University of Oregon Health Sciences Center. Plaintiff alleged that his foot was improperly wrapped and that, due to excessively tight bandages and wrappings, the circulation to his foot was cut off, which led to tissue death and amputation.

Summary judgment was granted in defendant Hoppert's favor, based on his affidavit that he was a state employee and was not given written notice of the claim within 180 days of the alleged tortious conduct as required by the Oregon Tort Claims Act. ² Partial summary judgment was thereafter granted in Emanuel's favor on the issue of its liability for any negligence of Hoppert.

Plaintiff appeals the final judgment entered after both motions for summary judgment were granted. ³ Both defendants had the burden of proving that there was no genuine issue of material fact and that each was entitled to judgment as a matter of law. ORCP 47C; Stanfield v. Laccoarce, 288 Or. 659, 607 P.2d 177 (1980); Seeborg v. General Motors Corp., 284 Or. 695, 588 P.2d 1100 (1978).

With respect to Dr. Hoppert's summary judgment, plaintiff correctly points out that the version of the Oregon Tort Claims Act in effect at the time of the alleged malpractice (June 10 through June 13, 1977) did not require giving notice as a condition precedent to suing an individual state employee or agent. ORS 30.275(1) (1975); Smith v. Pernoll, 291 Or. 67, 628 P.2d 729 (1981). Even if Hoppert was a state employee at the time of the alleged malpractice, notice was not required, and it was error to grant summary judgment in his favor. ⁴

In its motion for partial summary judgment, Emanuel argued that Hoppert was not an agent or employee of the hospital but of the University of Oregon Health Sciences Center. Alternatively, it argued that if Hoppert were found to be an agent of the hospital, plaintiff's failure to allege giving a tort claim notice, to which it was allegedly entitled as a public body, precluded recovery as a matter of law. The court did not specify upon which ground Emanuel's motion was granted. We will therefore explore each. ⁵

TORT CLAIM NOTICE

ORS 30.260, at the time of the alleged malpractice, defined "public body" as

" * * * the state and any department, agency, board or commission of the state, any city, county, school district or other political subdivision or municipal or public corporation and any instrumentality thereof." (Emphasis supplied.)

ORS 30.275(1) required that

"(e)very person who claims damages from a public body for or on account of any loss or injury within the scope of ORS 30.260 to 30.300 shall cause to be presented to the public body within 180 days after the alleged loss or injury a written notice stating the time, place and circumstances thereof, and the amount of compensation or other relief demanded. * * * "

Emanuel is a private, non-profit corporation in the business of providing hospital services. It nonetheless contends that it was an "instrumentality" of the state and, therefore, a "public body" entitled to notice by virtue of its contractual arrangement with the University of Oregon Health Sciences Center. As part of its resident training program for medical school resident doctors and to "provide a variety of structured learning experiences," contracted with Emanuel for the latter to

" * * * provide an opportunity for the House Officer (resident doctor) to have a satisfactory training experience in accordance with applicable provisions of the AMA directory of Approved Residencies."

Emanuel agreed to pay the Center the salaries of the "House Officers" plus 15 percent to cover the Center's costs for fringe benefits and taxes associated with the employment. The Center agreed to assign doctors on a rotating basis, to pay their salaries and to provide malpractice insurance coverage for the doctors "at all times while acting within the scope of their employment or duties on behalf of the Center." According to Emanuel, because it was "the means through which the (Center's) teaching program was accomplished," it was an instrumentality of the state.

As plaintiff points out,

"Emanuel contracted with the State of Oregon to provide a training opportunity for its resident doctors. The state of Oregon did not contract with Emanuel to provide medical services to the community. The purpose of the contract was to provide on-the-job educational opportunities."

If Emanuel were to be treated as an instrumentality of the state at all, it would be for the purpose of providing medical education to the Center's resident graduates, rather than for the purpose of providing medical services to the public. The fact that Emanuel's use of the resident graduates was for the purpose of providing medical services to the community did not convert the medical school's purpose into one of providing such services. Moreover, without any evidence that the medical school had any involvement in the operations of Emanuel with respect to the practice of medicine by its "House Officers" or their on-the-job training, it cannot be said that Emanuel was the instrumentality of the state for any purpose. ⁶ Hoppert's relationship with Emanuel was no different than with any other residents with respect to the practice of medicine.

We hold that Emanuel is not a "public body" within the meaning of ORS 30.260, and so the failure to give a tort claim notice was not fatal to plaintiff's action against the hospital.

VICARIOUS LIABILITY

In his memorandum of law in support of his motion for summary judgment, Dr. Hoppert contended that at the time of plaintiff's treatment he was employed by the State of Oregon as a resident in orthopedics at the University of Oregon Health Sciences Center and that any treatment he performed was done as a house officer and resident at the Center while he was serving as a state employee on rotation at Emanuel. In his affidavit in support of his motion for reconsideration, plaintiff stated:

" * * * (O)n or about June 10, 1977, I fell a distance of 15 to 20 feet and landed on my feet. I was taken to Emanuel Hospital where I was first seen by a doctor in the emergency room, and then a doctor came in that I assumed was working for Emanuel Hospital; my right foot and ankle was not causing me pain until it was tightly wrapped by a Dr. Hoppert with an Ace bandage; that I thought Dr. Hoppert was working for Emanuel Hospital; I would not have let Dr. Hoppert or any trainee wrap my foot and ankle if I had known that he was not an employee of Emanuel Hospital, or if I had been told he was a resident on loan from the Medical School and was not a fully qualified orthopedic specialist * * *."

The once majority rule that a hospital could not be liable under the doctrine of respondeat superior for the negligence of physicians who practice within its walls was attributable to the notion that physicians, because of their skill and training in a highly technical field, are not properly subject to control by hospital lay boards. Hospitals were seen as mere providers of facilities where physicians practiced their profession. See, e. g., Scloendorff v. Society of N. Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914). The "professional skill" immunity trend was reversed, however, in Bing v. Thunig, 2 N.Y.2d 656, 666, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957), where the New York court held that hospitals themselves purport to render care and treatment through their facilities and employees:

"The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and interns, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails...