Vaughan v. Memorial Hospital

• Decision Date: 03 November 1925
• Docket Number: 5394.
• Citation: 130 S.E. 481,100 W.Va. 290
• Parties: VAUGHAN v. MEMORIAL HOSPITAL.
• Court: West Virginia Supreme Court

130 S.E. 481

100 W.Va. 290

VAUGHAN v. MEMORIAL HOSPITAL.

No. 5394.

Supreme Court of Appeals of West Virginia.

November 3, 1925

Submitted October 13, 1925.

Syllabus by the Court.

A hospital conducted for private gain is liable to its patient for injuries sustained by him in consequence of incompetency or negligence of a physician treating him at its instance under a contract to furnish him proper treatment.

A physician is not required to exercise the highest degree of skill and diligence possible, in the treatment of an injury unless he has by special contract agreed to do so. In the absence of such special contract, he is only required to exercise such reasonable and ordinary skill and diligence as are ordinarily exercised by the average of the members of the profession in good standing, in similar localities and in the same general line of practice; regard being had to the state of medical science at the time.

Where a physician exercises ordinary skill and diligence, keeping within recognized and approved methods, he is not liable for a mere mistake of judgment. However, he is liable for the result of an error of judgment, where such error is so gross as to be inconsistent with that degree of skill which it is the duty of a physician to possess.

If the testimony of the physician who removed the diseased bone from the injured foot of the plaintiff was material to his case and plaintiff wished to avoid the effect of the legal presumption that, if he had testified, his testimony would have been adverse to him, he should show proper diligence to have him present as a witness or take his deposition.

A case where this court cannot say that the circuit court abused its discretion in granting a new trial.

Error to Circuit Court, Mercer County.

Action by W. A. Vaughan against the Memorial Hospital for malpractice. Verdict for plaintiff was set aside and new trial awarded, and plaintiff brings error. Affirmed.

Hugh G Woods, of Princeton, for plaintiff in error.

Reynolds & Reynolds and Hartley Sanders, all of Princeton, for defendant in error.

WOODS J.

From an order of the circuit court of Mercer county setting aside a verdict for the plaintiff and awarding defendant a new trial, the plaintiff prosecutes this writ of error.

On April 5, 1923, plaintiff, W. A. Vaughan, a coal miner, by reason of a fall of slate and coal, sustained an injury to his right foot; two bones near the first and second joint of the second and third toes being broken. On April 7th he was taken to Memorial Hospital, defendant, for treatment, under whose care he remained until discharged some weeks later. During said period of treatment his foot and ankle were incased first in a wire cast, then a plaster of paris cast. The latter was worn until it became loose, by reason of the swelling in the injured member having subsided, when a second plaster of paris cast was made. These casts, according to plaintiff, did not extend out beyond the broken parts of the foot. After discharge from treatment, plaintiff's foot became swollen, accompanied by severe pain. He consulted a doctor at Matoka, who made an X-ray examination, disclosing the fact that the bones were not knitted. He later came to Charleston, where the bones were removed.

The first ground of defense urged by the counsel for the defendant hospital is that it is not responsible for any default on the part of the physicians Todd and Rixey, they being independent agents; that, if this defense fails, there was no negligence in the diagnosis and treatment of the plaintiff's injury by said physicians.

A hospital incorporated and conducted for private gain, for the benefit of its stockholders, is liable in damages to its patients for negligence or misconduct of its officers and employees. Jenkins v. Charleston General Hospital & Training School, 90 W.Va. 230, 110 S.E. 560, 22 A. L. R. 323; Hogan v. Hospital Co., 63 W.Va. 84, 59 S.E. 943; Brown v. La Société Francaise, 138 Cal. 475, 71 P. 516; Railroad Co. v. Wood, 95 Tex. 223, 66 S.W. 449, 56 L. R. A. 592, 93 Am. St. Rep. 834; 13 R. C. L. 949. The purely private character of the defendant is practically admitted; the certificate of incorporation under the laws of West Virginia being in evidence in the case. The capital invested is like capital invested in any other corporation conducted for profit. In its contracts it stands upon the same basis as any other contractor, and, as to employees and third persons, it is subject to the same general rule, respondeat superior. Jenkins v. Hospital, supra. The plaintiff and defendant were brought into relation with each other through the agency of the employer of the former, the Weyanoke Coal & Coke Company. There he received the surgical and medical care to which he was entitled under the rules and regulations of the State Compensation Commissioner, the expense of such treatment and care to be paid out of the Workmen's Compensation Fund. The application (Form C. D. 12) to the State Compensation Commissioner for payment of said medical, surgical, and hospital treatment afforded plaintiff was rendered in the name of the defendant. It included the item for the operation on the plaintiff's foot by the physicians Todd and Rixey. It appeared in evidence that said doctors are the managers of the defendant hospital; that the X-ray machine used in the hospital for examination of this plaintiff's injury was the property of the institution. Under these conditions, the authorities cited hold that the said defendant cannot absolve itself from the obligation it owed to the plaintiff patient to furnish him proper treatment, on the claim that the physicians who treated him, at its instance, were independent contractors. In view of this, the court erred in submitting the question of whether the medical and surgical treatment was rendered the plaintiff by the physicians on their own account to the jury, in instruction No. 3, given to the jury at the instance of the defendant. It was likewise error to refuse instruction No. 1 requested by the plaintiff, which told the jury that a hospital incorporated and conducted for private gain or the benefit of its stockholders is liable in damages to its patients for negligence or misconduct of its officers and employees.

It is settled law in this state in this class of cases that a physician or surgeon is bound to bestow such reasonable and ordinary care, skill, and diligence as physicians and surgeons in the same general line of practice ordinarily have and exercise in like cases, time and locality being taken into consideration; and that a physician is bound to exercise the average degree of skill possessed by the profession in such locality. This holding is in accord with the great weight of authority elsewhere. We think it may be said to be the generally accepted doctrine that a physician is not required to exercise the highest degree of care or skill and diligence possible, in the treatment of an injury, or disease, unless he has by special contract agreed to do so. In the absence of ...