Voss v. Bridwell

• Decision Date: 18 September 1961
• Docket Number: No. 42237,42237
• Citation: 188 Kan. 643,364 P.2d 955
• Parties: Garrett VOSS, an Incompetent, by and through Thelma Voss, Guardian of the person and estate of Garrett Voss, Appellee and Cross Appellant, v. Russell E. BRIDWELL and A. K. Sen, Appellants, and John I. Davies, Cross Appellee.
• Court: Kansas Supreme Court

Page 955

364 P.2d 955

188 Kan. 643

Garrett VOSS, an Incompetent, by and through Thelma Voss Guardian of the person and estate of Garrett Voss Appellee and Cross Appellant, v. Russell E. BRIDWELL and A. K. Sen, Appellants and John I. Davies, Cross Appellee.

No. 42237.

Supreme Court of Kansas.

Sept. 18, 1961.

Syllabus by the Court

1. A petition in a medical malpractice action against three defendants (a surgeon, an anesthetist and a resident physician at the University of Kansas Medical Center) to recover damages for injuries resulting to the plaintiff from the administration of anesthesia is examined on appeal from rulings of the trial court on separate demurrers, and held to state a cause of action against each of the three defendants on each of two counts, one in ordinary negligence and the other under the doctrine of res ispa loquitur, all as more fully set forth in the opinion.

2. When the plaintiff in an action has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one count.

3. A physician or surgeon must exercise due care in selecting his assistants, and on the simplest principles of law, agency or master and servant, a physician or surgeon may be liable for the neglect or fault of his apprentice, agent or employee, such as an assistant who is working under his direction, for injury resulting therefrom to a patient. The fact that a physician's assistant is a member of the same or a similar profession does not make the rule of respondeat superior inapplicable.

4. Where the employer is a state governmental agency and immune from tort liability under the governmental function doctrine, the official cloak of immunity does not extend to the negligent employee, as an individual, so as to shield him from answering for his wrongful act by which another has suffered injury.

5. Under the doctrine of respondeat superior a person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other.

6. In medical malpractice cases where the action is not founded upon the mere failure of a physician or surgeon to secure the desired result, or upon the merits of a diagnosis or of scientific treatment, the doctrine of res ipsa loquitur has application to those situations in which the injury results from an unusual occurrence, not ordinarily found where the service performed followed the usual procedure of those skilled in that particular practice, provided a layman is able to say as a matter of common knowledge and observation, that the consequences of professional treatment were not such as would ordinarily have followed if due care had been exercised.

7. Where a patient, neurologically sound and physically fit in mind and body, submitted himself for a mastoid operation, which was never performed, to the complete custody and exclusive control of his physician and suffered irreparable damage and injury rendering him decerebrate and totally incapacitated by the administration of anesthesia, and in the use and employment of an endotracheal tube, it is held, the injury is one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube; and upon these facts and under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not such as would ordinarily have followed if due care had been exercised, thus presenting a situation in which the doctrine of res ipsa loquitur is applicable.

John J. Alder, Kansas City, argued the cause, and Harley V. Haskin, Olathe, was with him on the briefs for appellants.

Marion W. Chipman, Hill City, argued the cause, and W. H. Clark and Kenneth Clark, Hill City, and Howard E. Payne, W. C. Jones, Olathe, Robert P. Anderson, Overland Park, and H. Thomas Payne, Olathe, were with him on the briefs for appellee and cross appellant.

Edw. M. Boddington, Jr., Kansas City, argued the cause, and Edw. M. Boddington and Richard J. Croker, Kansas City, and Hugh Kreamer, Olathe, were with him on the briefs for crose appellee.

SCHROEDER, Justice.

This is a malpractice action to recover damages against three defendants, the surgeon, the anesthetist and a resident physician. The case is here on appeal from the trial court's ruling upon separate demurrers to the petition which was alleged in two counts, one in ordinary negligence and the other under the doctrine of res ipsa loquitur.

The question presented is whether the petition states a cause of action against each of the three defendants on each of the two counts.

The petition was filed on the 17th day of September, 1959, by Garrett Voss, an incompetent person, by and through Thelma Voss, his wife, the duly appointed guardian of his person and estate. After preliminary allegations concerning the plaintiff's residence and the appointment of his wife as guardian for him upon an adjudication of incompetency by the probate court of Graham County, Kansas, the petition alleged:

'3. That the said Garrett Voss was rendered an incompetent person by reason of the negligent and careless acts and omissions of the defendants, all as will be more particularly set forth herein.

'4. The defendant Russell E. Bridwell is now and was on the 28th day of August, 1958, a duly licensed and regularly practicing physician and surgeon, and was on said date engaged in the practice of medicine at the University of Kansas Medical Center and elsewhere, and said defendant maintains an office in the National Reserve Life Building in the City of Topeka, Shawnee County, Kansas.

'5. That the defendant John I. Davies is now and was on the 28th day of August, 1958, a licensed and practicing physician, and was on said date a member of the staff at the University of Kansas Medical Center and the supervising head of the Department of Anesthesiology at said hospital.

'6. That said defendant is a resident of Johnson County, Kansas, and that his post office address is 2012 West 85th Terrace in said County.

'7. That the defendant A. K. Sen was on the 28th day of August, 1958, in residency at the University of Kansas Medical Center, and in the Department of Anesthesiology working under the direct supervision and control of the defendant John I. Davies, but plaintiff does not know, and is therefore unable to state whether said defendant A. K. Sen was duly licensed to practice medicine within the State of Kansas or elsewhere; that said defendant is a resident of the State of Kansas, and may be served with process at St. Margaret's Hospital, Kansas City, Wyandotte County, Kansas.

'8. That on the 28th day of August, 1958, Garrett Voss sought the medical advice of the defendant Russell E. Bridwell for the purpose of procuring medical treatment for a mastoid infection of the ear, the exact nature and type of infection being unknown to the plaintiff, but being within the knowledge of the defendants herein and particularly the defendant Russell E. Bridwell.

'9. That said defendant Russell E. Bridwell, after having conducted an examination of the plaintiff herein, advised plaintiff that it would be necessary that an operation be performed for the purpose of curing and treating said mastoid infection, and further advised plaintiff that immediate surgery thereof should be had.

'10. Plaintiff, [in reliance upon the statements of the said Russell E. Bridwell to the above effect,] did then and there engage and employ the services of the said defendant Russell E. Bridwell to perform said surgical operation and treatment, [and the said defendant Russell E. Bridwell did then and there undertake such employment, and did agree to treat, operate, and heal the said Garrett Voss, and to use and employ the ordinary medical skill, treatment, and means generally employed and used by physicians and surgeons in the practice of the medical profession within the community.]

'11. That the said Garrett Voss [relying upon the diagnosis, recommendation, and prescribed surgery consented thereto,] and said defendant Russell E. Bridwell procured the admission of the plaintiff herein to said Medical Center, making all necessary arrangements for the performance of said operation and surgery including the assistance of nurses and particularly the services of an anesthesiologist.

'12. That the defendant, John I. Davies, was the head of the Department of Anesthesiology of the University of Kansas Medical Center and was responsible for and had direct control of administering anesthesia to the plaintiff and undertook the administration of anesthesia to the plaintiff through the said A. K. Sen. Plaintiff does not know and is therefore unable to state, said information being, however, whithin the knowledge of the defendants, how and in what manner the defendant A. K. Sen was assigned for the purpose of administering a general anesthesia to the plaintiff herein, but plaintiff alleges the facts to be that the said A. K. Sen, being in residency as aforesaid in said Department of Anesthesiology as aforesaid, was at all times herein complained of under the direct supervision and tutelage of the defendant, John I. Davies, and the said John I. Davies, being the head of the Department of Anesthesiology, and having undertaken the administration of anesthesia to the plaintiff, was responsible for and had control of the medical activities of the defendant, A. K. Sen, and was responsible for the proper administration of anesthesia to the plaintiff.

'13. That the defendant Russell E. Bridwell, being the operating surgeon, likewise was responsible for and had direct control of the proper preparation of the plaintiff herein as his...