Thomas v. Raleigh General Hosp., No. 17495

• Court: Supreme Court of West Virginia
• Writing for the Court: BROTHERTON
• Citation: 178 W.Va. 138,358 S.E.2d 222
• Decision Date: 27 May 1987
• Docket Number: No. 17495
• Parties: David E. THOMAS v. RALEIGH GENERAL HOSPITAL, a corporation, and Dr. Joseph J. Carozza and Dr. Elias H. Isaac.

Page 222

358 S.E.2d 222 178 W.Va. 138 David E. THOMAS
v.
RALEIGH GENERAL HOSPITAL, a corporation, and Dr. Joseph J.
Carozza and Dr. Elias H. Isaac. No. 17495. Supreme Court of Appeals of
West Virginia. May 27, 1987.

Page 223

[178 W.Va. 139] Syllabus by the Court

1. "Under the provisions of Rule 56 of the West Virginia Rules of Civil Procedure, when the moving party presents depositions, interrogatories, affidavits or otherwise indicates there is no genuine issue as to any material fact, the resisting party to avoid summary judgment must present some evidence that the facts are in dispute." Syllabus point 2, Guthrie v. Northwestern Mut. Life Ins. Co., 158 W.Va. 1, 208 S.E.2d 60 (1974).

2. Where a patient goes to a hospital seeking medical services and is forced to rely on the hospital's choice of physician to render those services, the hospital may be found vicariously liable for the physician's negligence.

3. "A motion for summary judgment may only be granted where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Syllabus point 2, Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978).

Timothy R. Ruckman, Callaghan & Ruckman, Summersville, for appellant.

William H. File, Jr., Beckley, for Raleigh Gen. Hosp.

Edgar A. Poe, Jr., Shuman, Annand & Poe, Charleston, for Dr. Elias Isaac.

BROTHERTON, Justice:

This is an appeal by David E. Thomas from two summary judgments of the Circuit Court of Raleigh County. Thomas filed an action against Raleigh General Hospital, Dr. Joseph J. Carozza, and Dr. Elias H. Isaac for medical malpractice. The allegations by Thomas alleged active negligence only by Dr. Carozza, but none by Raleigh General Hospital or Dr. Isaac. Instead, Thomas relied on theories of vicarious liability for these defendants. Nevertheless, the trial court found no vicarious liability and dismissed the two defendants, from which ruling Thomas appeals.

David Thomas arrived at the emergency room of Raleigh General Hospital at 10:06 p.m. on December 18, 1981, for a strain on his right side. The next day he was examined by Dr. Isaac. Thomas told Isaac that he had been operated on four times for an incisional hernia with a mesh repair. The patient was then admitted to the hospital for possible repair of another hernia.

On December 30, 1981, Dr. Isaac performed an exploration of the incisional area called a mini-laparotomy. The anesthesia was given under the direction and control of Dr. Joseph Carozza, a board certified anesthesiologist, and a certified registered nurse-anesthetist, Larry Rupe.

The exploration revealed no evidence of a hernia and revealed that the previous hernia repair was strong. All findings of the surgery were good, and Thomas appeared to tolerate the procedures well with no complications.

The anesthesia given was a general anesthesia with the use of an endotracheal tube. Dr. Carozza supervised the procedure, with Nurse Rupe actually giving the anesthesia.

The patient was released on January 2, 1982, with no apparent complications. However, on a follow-up visit to Dr. Isaac's office on January 6, 1982, Thomas complained of being hoarse. His voice was weak and breathy. For this condition Thomas went to see Dr. Romeo Lim in Charleston. According to a May 13, 1982, letter by Lim, Thomas' voice was restored to near normal following steroid injections.

This law suit was filed in the Circuit Court of Raleigh County against Raleigh General Hospital and Dr. Joseph Carozza. The complaint was later amended to add Dr. Elias Isaac as a defendant. Motions were made to dismiss the hospital and Dr. Isaac. In ruling on these motions, the trial court noted that there was no claim that the injury occurred directly from Dr. Isaac's surgery, but that the injury allegedly occurred when an endotracheal tube was inserted or removed by the nurse-anesthetist. The insertion and removal of the tube was done under the direction of Dr. Carozza and his employee, Larry Rupe. Since the allegations against Isaac and the hospital alleged no active negligence, and

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[178 W.Va. 140] the court decided that there was no vicarious liability, the court dismissed the hospital and Isaac. From this ruling Thomas appeals.

I.

We agree with the trial court in dismissing Dr. Isaac. The only allegations against Dr. Isaac were based on theories of vicarious liability. Thomas was not claiming that Isaac injured him through an act of negligence which Isaac committed, but rather that Isaac's supposed agents, whom he was supervising and controlling, injured Thomas. The theory alleged by Thomas would support a finding of vicarious liability against Isaac if proved. Where a defendant has control over the negligent actor, he may be vicariously liable for that actor's negligence. See generally, 5 F. Harper, F. James and O. Gray, The Law of Torts, § 26.1 (2d ed. 1986). Nevertheless, depositions and interrogatories were taken of all the principal actors in the case, including the anesthetist, Larry Rupe, the anesthesiologist, Dr. Carozza, the surgeon, Dr. Isaac, and the assistant surgeon, Dr. Patel. All of the deposition testimony made it clear that Dr. Isaac had nothing to do with the anesthesia procedure. Most of the witnesses were unsure whether or not Isaac was even in the room when the tube was inserted, but all were quite clear that he...