Variety Children's Hospital, Inc. v. Perkins, s. 79-158

CourtCourt of Appeal of Florida (US)
Writing for the CourtSCHWARTZ
Citation382 So.2d 331
PartiesVARIETY CHILDREN'S HOSPITAL, INC., Appellant, v. Thomas PERKINS and Sharon Perkins, etc., et al., Appellees.
Docket Number79-627,Nos. 79-158,s. 79-158
Decision Date05 February 1980

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.

Fazio, Dawson, Steinberg & DiSalvo, Nancy Little Hoffman, Fort Lauderdale, for appellees.



Variety Children's Hospital appeals from a.$1.2 million judgment entered on a general jury verdict against it in a malpractice action. We affirm.

The case was founded upon allegedly negligent post-operative care rendered to the then-four-month-old Anthony Perkins by the hospital's residents and nurses on the night of July 18-19, 1975. Anthony had been admitted to Variety by a private pediatric and thoracic surgeon, Dr. William Brown, for a tracheotomy to correct a congenital condition in the infant's windpipe. Dr. Brown performed the operation in an uneventful fashion on the evening of July 18. After examining Anthony in the intensive care unit, where he had been taken after the surgery, and giving instructions as to his treatment, Dr. Brown left the hospital at 11:00 p. m. The child came then within the exclusive care of the nurses and residents employed by the hospital, primarily a Dr. Nanes who was the surgical resident on call that night. Following a series of events concerning Anthony's condition which it is unnecessary to detail, he became cyanotic and stopped breathing at about 3:55 a. m. During the five-to-seven minute period which elapsed before the hospital personnel were able to restore his breathing and heartbeat, he sustained devastating and irreversible brain damage. The cause of this medical catastrophe was a massive pneumothorax brought about by the gradual accumulation of trapped air beneath the skin, a condition known as subcutaneous emphysema, which entered the body at the site of the tracheotomy and worked itself down until it broke through the surface of the lung. There was ample expert testimony that both the nurses and residents had been negligent in failing to employ adequate medical procedures in the light of the symptoms of subcutaneous emphysema which Anthony had exhibited for almost two hours before the crisis occurred, and in the resuscitation efforts employed after its onset.

In this court, Variety does not claim that the verdicts of $1,000,000 for Anthony, individually, and $200,000 for his parents are excessive. Nor does it contend that the evidence is insufficient to justify the finding, embodied in the general verdict, that its employees were negligent in the plaintiff's case. Its single point on appeal urges error in the rulings of the trial judge that (a) the hospital was vicariously liable as a matter of law for the conduct of its residents and (b) in therefore denying the defendant's requested instructions which would have permitted the jury to find that the residents were the "borrowed servants" of Dr. Brown so that he, rather than Variety, was responsible for their negligence. For two separate reasons, we reject this contention.

In the first place, the "two issue" rule of appellate review adopted in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978), would preclude our even considering the point. At 355 So.2d 1186, the supreme court held:

The question arises where two or more issues are left to the jury, and (either) of which may be determinative of the case, and a general verdict is returned, making it impossible to ascertain the issue(s) upon which the verdict was founded. One line of authority holds that reversal is improper where no error is found as to one of the issues, as the appellant is unable to establish that he has been prejudiced. Berger v. Southern Pacific Co., 144 Cal.App.2d 1, 300 P.2d 170 (Cal. 1st DCA 1956); Altieri v. Peattie Motors, Inc., 121 Conn. 316, 185 A. 75 (1936); Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654 (1932); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958). This is known in jurisprudence as the "two issue" rule. It is a rule of policy, designed to simplify the work of the trial courts and to limit the scope of proceedings on review. See Harper v. Henry, 110 Ohio App. 233, 169 N.E.2d 20 (Ct.App.1959).

We believe that the "two issue" rule represents the better view. At first thought, it may seem that injustice might result in some cases from adoption of this rule. It should be remembered, however, that the remedy is always in the hands of counsel. Counsel may simply request a special verdict as to each count in the case. See Harper v. Henry, supra. Then, there will be no question with respect to the jury's conclusion as to each. If the trial court fails to submit such verdicts to the jury, counsel may raise an appropriate objection.

Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts. However, petitioners failed to meet these requirements. Where the district court determines under these circumstances that one of the issues submitted to the jury was free from prejudicial error, it will be presumed that all issues were decided in favor of the prevailing party and the judgment will be affirmed. See Larriva v. Widmer, 101 Ariz. 1, 415 P.2d 424 (1966).

This doctrine clearly applies to this case. As has been noted, the hospital's only appellate issue concerns its liability for the actions of the physicians-residents involved in Anthony's care. It admits both that the trial court correctly held that it was vicariously responsible, as a matter of law, for the negligence of the nurses in question and that there was evidence of such negligence in the record. The general verdict does not reveal whether the jury found against the defendant because of the actions of the nurses, the residents, or both. Since Variety did not request the submission of special interrogatories which would have shown the basis or bases of the verdict, we are compelled conclusively to presume that the verdict was grounded, at least in part, on the nurses' negligence, as to which it is conceded there was no error committed below. The appellant thus simply cannot establish prejudice in the challenged rulings concerning its responsibility for the residents, and therefore may not secure a reversal even if those rulings were erroneous.

The hospital has lost nothing, however, by its failure properly to preserve the issue in the trial court. Out of what is probably an overabundance of caution, we have examined the merits of its position and find that the trial judge's determinations on the point in question were entirely correct. The record contains no evidence whatever upon which the jury could properly find that Variety's residents, who were employed and paid by the hospital and were under its supervision and control, became "borrowed servants" of Dr. Brown at the time of the commission of their negligent acts. As the appellant acknowledges, a hospital is, as a general rule, liable for the negligence of interns or residents like those involved in this case. City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721 (1942); Parmerter v. Osteopathic General Hospital, 196 So.2d 505 (Fla.3d DCA 1967). Such an employee may, it is true, come under the direction and control of an attending physician so as to shift responsibility for his acts from the hospital to the doctor. The most familiar example of this process occurs in the operating room where each of the attending personnel comes under the authority of the surgeon as the "captain of the ship." E. g., Hudmon v. Martin, 315 So.2d 516 (Fla.1st DCA 1975); Buzan v. Mercy Hospital, Inc., 203 So.2d 11 (Fla.3d DCA 1967).

But this principle has utterly no application to the case at bar, in which the negligence occurred when the surgery had long since been completed and the surgeon was neither physically present nor any longer directing the activities of the hospital employees. It is a fundamental rule that the respondeat superior doctrine applies only when the alleged master has the ability and authority to direct and control the pertinent acts of the employee, Murphy v. Bowden, 25 Fla. 454, 6 So. 453 (1889); Berrier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1939) (lent servant doctrine). Based upon this doctrine, the courts have unanimously held that in a post-surgical situation such as this one, the hospital and not the physician is liable for the acts of its employees. Hohenthal v. Smith, 72 App.D.C. 343, 114 F.2d 494 (D.C.Cir.1940); Adams v. Leidholt, 579 P.2d 618 (Colo.1978); Bernardi v. Community Hospital Association, 166 Colo. 280, 443 P.2d 708 (1968); Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 (1961); Stumper v. Kimel, 108 N.J.Super. 209, 260 A.2d 526 (1970), cert. denied, 55 N.J. 589, 264 A.2d 63 (1970); see also Barrette v. Hight, 353 Mass. 268, 230 N.E.2d 808 (1967). We agree with and follow these decisions. A contrary holding, accepting Variety's position on the facts of this case, would both expose every admitting physician to liability for the actions of hospital employees merely because he remains generally in charge of the patient's care; and simultaneously relieve the hospital of responsibility for services which it alone should provide and for which it is paid. Each of these results is entirely undesirable and completely contrary to the decided cases. As Justice Rutledge stated in Hohenthal v. Smith, supra, at 72 App.D.C. 345, 114 F.2d 496:

Part of the service furnished to the patient and charged for by the hospital is the...

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