Willigerod v. Sharafabadi

• Decision Date: 12 December 1967
• Docket Number: No. 12647,12647
• Citation: 158 S.E.2d 175,151 W.Va. 995
• Court: West Virginia Supreme Court
• Parties: William D. WILLIGEROD, Jr., et al. v. Cyrus SHARAFABADI et al.

Page 175

158 S.E.2d 175

151 W.Va. 995

William D. WILLIGEROD, Jr., et al. v. Cyrus SHARAFABADI et al.

No. 12647.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 26, 1967.

Decided Dec. 12, 1967.

Syllabus by the Court

Where a master and a servant are sued jointly in an action for recovery of damages resulting from personal injuries, if the action is based solely on the alleged tortious conduct of the servant, and he is, by a final judgment, acquitted of guilt of the tortious conduct alleged as a basis for the action, there can be no recovery thereafter against the master on the basis of such alleged cause of action.

McCamic & McCamic, Jeremy C. McCamic, Wheeling, for appellants.

Chester R. Hubbard, O'Brien & O'Brien, Frank A. O'Brien, Goodwin, Mead & Goodwin, Russell B. Goodwin, Wheeling, for appellees.

CALHOUN, President.

This case is before the Court on appeal by William D. Willigerod, Jr., and Wilma N. Willigerod, husband and wife, plaintiffs in the trial court, from a final judgment rendered for the defendants by the Circuit Court of Ohio County in a civil action instituted in that court against Cyrus Sharafabadi, M.D., Ohio Valley General Hospital, a corporation, and Matt L. Kirkland, Jr., M.D., as defendants, in which civil action the plaintiffs assert that Wilma N. Willigerod sustained personal injuries as a consequence of the negligence of the defendants in connection with the performance of a surgical operation on her. The wife sued for recovery of damages for personal injuries sustained and for expenses incurred as a consequence of such alleged negligence. The husband sued for loss of 'his wife's usual and ordinary services, consortium, etc.'

Originally the action was against Cyrus Sharafabadi, M.D., as the sole defendant. Subsequently, upon motion of the plaintiffs, they were permitted to file an amended complaint by which the Ohio Valley General Hospital and Matt L. Kirkland, Jr., M.D., were made additional defendants.

The amended complaint contains the following allegations concerning the manner in which the alleged personal injuries were caused: 'On or about June 21, 1963, at the Ohio Valley General Hospital, Wheeling, Ohio County, West Virginia, the plaintiff, Wilma N. Willigerod, was grievously injured by the actions of the defendants, Cyrus Sharafabadi, M.D., The Ohio Valley General Hospital, a Corporation, and Matt L. Kirkland, Jr., M.D., in wilfully, recklessly, negigently and improperly employing the said defendant, Cyrus Sharafabadi, in ordering a nitrogen mustard preparation injected into the left arm of the said plaintiff, Wilma N. Willigerod, and in administering said injection.'

In June, 1963, Dr. Matt L. Kirkland, Jr., a physician and surgeon, performed on Wilma N. Willigerod a surgical operation referred to in the record as a radical mastectomy which involved the removal of her left breast and underlying muscles and lymph glands, because it had been determined previously that she had a cancer in that breast. In connection with the surgical operation, nitrogen mustard was given intravenously in the right arm of the patient as a means of counteracting the effects of the cancerous condition. Dr. Kirkland left orders for postoperative care of various sorts to be given to the patient following the surgery.

In connection with the administration of nitrogen mustard, an intravenous solution flowed from a plastic bottle or container through a plastic tube, and thence through a needle inserted in a vein in the patient's arm; and, at the proper time, the nitrogen mustard was injected from a syringe into a 'rubber adapter'. Being thus mixed with the solution proceeding from the plastic bottle or container, the nitrogen mustard ran through the needle previously inserted in the patient's arm. Dr. Kirkland testified that this was the standard procedure employed in such circumstances.

At the time of the surgical operation, the intravenous injection in the patient's right arm was successfully completed. On the day following the performance of the surgery, Dr. Cyrus Sharafabadi, who was then an intern employed by the hospital, commenced the second injection of the nitrogen mustard from the syringe into the rubber adapter from whence it proceeded through the needle which had been inserted previously in the patient's left wrist by somebody other than Dr. Sharafabadi. During that process, a swelling began to develop about the patient's arm, whereupon Sharafabadi withdrew the syringe and discontinued the injection of the nitrogen mustard. Only a nurse, a student nurse and Dr. Sharafabadi were in the room with the patient at the time.

The complaint does not charge negligence against either the nurse or the student nurse, and we are unable to discern that any negligence is proved or even charged against them in the testimony. It apparently is contended by the plaintiffs that the nitrogen mustard got out of the vein and into the subcutaneous tissue, causing the initial swelling and the additional personal injuries which are alleged to have been sustained by the patient. The testimony indicates that the injections of nitrogen mustard in such procedures are customarily made by the interns at Ohio Valley General Hospital.

At the conclusion of all the testimony, upon motions made severally by the three defendants, the court directed a verdict against the plaintiffs and in favor of the three defendants. The plaintiffs initially petitioned this Court for an appeal and a new trial as to all the...