Vanaman v. Milford Memorial Hospital, Inc.

• Decision Date: 15 January 1970
• Citation: 262 A.2d 263
• Parties: Barbara L. VANAMAN, an infant, by her next friend, Nancy M. Vanaman, Walter Lee Vanaman and Nancy M. Vanaman, Plaintiffs, v. MILFORD MEMORIAL HOSPITAL, INC., a Delaware corporation, and Dr. C. Edward Graybeal, Defendants.
• Court: Delaware Superior Court

Page 263

262 A.2d 263

Barbara L. VANAMAN, an infant, by her next friend, Nancy M.

Vanaman, Walter Lee Vanaman and Nancy M. Vanaman, Plaintiffs, v. MILFORD MEMORIAL HOSPITAL, INC., a Delaware corporation, and Dr. C. Edward Graybeal, Defendants.

Superior Court of Delaware, New Castle County.

Jan. 15, 1970.

Motion of Defendant Hospital for Summary Judgment; Motion Granted.

Houston Wilson, Georgetown, Courtney H. Cummings, Jr., Wilmington, for plaintiffs.

Victor F. Battaglia, Wilmington, for defendant Hospital.

William T. Lynam, Wilmington, for defendant Dr. C. Edward Graybeal.

QUILLEN, Judge.

The matter for decision is a motion for summary judgment by the defendant Milford Memorial Hospital.

This is a malpractice action brought by Walter Lee Vanaman and Nancy M. Vanaman as parents, and by Barbara L. Vanaman, the minor plaintiff, by her next friend Nancy M. Vanaman. For the purpose of this motion, the plaintiffs' interest is identical. Plaintiffs seek damages resulting from injuries incurred by Miss Vanaman due to the alleged negligence of defendants, Milford Memorial Hospital, Inc. and Dr. C. Edward Graybeal.

On June 27, 1964, Miss Vanaman fell while being chased by a bumblebee in her backyard. While running, she twisted her ankle in a small hole in the yard. Her family physician could not be reached and she was taken to the Milford Memorial Hospital approximately two hours after the accident. Upon arrival, Dr. Graybeal, the staff member on duty, ordered X-rays to be taken. A fracture was discovered and Dr. Graybeal put a cast on Miss Vanaman's left leg.

The complaint alleges that the cast was put on too tightly and that as a result of the tight cast during the period the cast was on, from June 27, 1964 until August 6, 1964, and as a result of the failure to diagnose and treat a resulting physical condition throughout the period from August 6, 1964 until January 5, 1965, that Miss Vanaman suffered injury to the vascular, lymph, cellular and nervous tissues and cells of her leg.

Defendant, Milford Memorial Hospital, Inc., claims that the alleged acts of negligence asserted were the acts of the defendant Dr. Graybeal who was not the servant, agent or employee of the Hospital and therefore, even if the doctor was negligent, the Hospital is not liable. The plaintiff has pleaded no independent acts of negligence on the part of the Hospital and the motion thus turns on vicarious liability.

In Delaware, non-profit hospitals are responsible for their own negligence and are responsible for the negligent acts of their agents and employees under the doctrine of respondeat superior. Durney v. St. Francis Hospital, 7 Terry 350, 83 A.2d 753 (1951).

The Court has had little success in finding an abundance of reported case law on all fours with the present case factually. It is apparent that the defendant had similar difficulty. The problem is, however, simply one of the law of agency and the traditional question of master-servant versus independent contractor. See Annotation 69 A.L.R.2d 305--339.

Of course, difficulty frequently arises in deciding in a particular case whether the doctor was a servant of the hospital or an independent contractor. Two situations appear clear.

In the normal situation, where a patient consults his own physician and hospital care is recommended, the hospital to which the patient is admitted and cared for by his own physician is not liable for the physician's negligence merely because the doctor is a member of the 'staff' of the hospital. Mayers v. Litow, 154 Cal.App.2d 413, 316 P.2d 351 (1957). Such physician is regarded as an independent contractor in its relation to the hospital and to the patient.

Where, however, a person is taken directly to a hospital; such as where he is rendered unconscious in an accident; and a physician hired by the hospital, such as an intern or resident, is guilty of malpractice in treatment or diagnosis, a different situation arises. The annotation previously noted says the following at 69 A.L.R.2d 309 of such a case:

'Such a physician usually stands in a position with respect to the hospital which, under the normal tests of the existence of the master-servant relationship, would call for a ruling that he was the hospital's servant. In other words, such a doctor is normally paid a salary by the hospital, he spends all his working hours under the direction of the hospital's staff, he does not maintain a practice of his own, etc., and the result would normally be, and not infrequently is, that the physician must be regarded as a servant or agent of the hospital.'

In this situation, the hospital would be liable under the odctrine of respondeat superior. Brown v. Moore, 247 F.2d 711 (3rd Cir.1957). But see Moon v. Mercy Hospital, 150 Colo. 430, 373 P.2d 944 (1962).

The Hospital contends that Dr. Graybeal was not its agent, servant or employee. It argues that the most important test in determining whether a person is an independent contractor or servant is the degree of control the employer has over the work done. The Hospital further argues that it had no control of the work done by Dr. Graybeal in the instant case but merely introduced him to the plaintiff. Therefore, the Hospital contends that...