McConnell v. Williams

Opinion by Mr. Justice Horace Stern, Physicians and surgeons, like other persons, are subject to the law of agency, and one of them may be, either permanently or temporarily, in the service of another. The question in the present case is whether such a relationship existed between a hospital interne and defendant, a practicing surgeon, during the latter’s performance at the hospital of an obstetrical operation in the course of which the interne, by alleged negligence, injured the new-born child of the patient. The facts—assuming plaintiff’s testimony to be true—are these: Mrs. Joseph K. McConnell consulted defendant in his professional capacity and she and her huband engaged him to attend her during her pregnancy and to deliver her of an expected child. Finding that a caesarian operation would be necessary, defendant suggested that it be performed at the Jewish Hospital in Philadelphia where he was one of the chiefs of the obstetrical staff, and accordingly she entered there on December 2, 1943. While the Jewish Hospital is not a public hospital in the sense of being owned or operated by government, it is a non-profit, charitable institution, with both private-patient and ward service, its facilities being available to all. On December 3 defendant requested one of the internes at the hospital to attend on the following day “to be his assistant and to take care of the baby at the time of the operation,” but, being told that that interne would not be on duty, he asked that a certain other interne whose name he mentioned should be informed that “he was to be his assistant and take care of the baby at the time of the delivery.” The operation took place on December 4; in the operating room, in addition to defendant and the patient, there were present a nurse attached to the hospital, another nurse privately engaged by Mrs. McConnell, and the interne whom de *358 fendant had designated. The operation was apparently a difficult one; the patient suffered profuse hemorrhages which required defendant’s complete attention. When the child was delivered he .turned it over to the interne for the purpose of tying the cord and applying a solution of silver nitrate to the infant’s eyes. Silver nitrate is an extremely caustic drug .requiring careful dosage, and proper, technique calls for the application of only one or two drops in each eye followed by prompt irrigation. A subsequent analysis of . the silver nitrate used on this occasion revealed that it was a 2.1 solution which, it was testified, was not of excessive intensity. The insertion of silver nitrate or other approved prophylactic agent in the eyes of every new-born child is not only a regularly established practice in obstetrical cases but is required by the rules and regulations of the Department of Health of the Commonwealth, the purpose being to prevent the disease known as ophthalmia neonatorum. According to the testimony of Mrs. McConnell’s nurse the interne in this case filled a syringe and squirted the solution once^ into the child’s left eye and twice into its right eye, putting into the latter “a great many drops”; moreover, he. failed to irrigate the eyes during at least the period of five or ten minutes while this nurse remained in the operating room. The result was that the child lost the sight in her right eye completely, which was so badly burned that it had later to be excised, necessitating a. plastic , operation and the substitution of a glass eye which she will be obliged to wear throughout her life; the left eye was also severely and permanently scarred. Defendant himself testified that the insertion of the silver nitrate drops was not a job-which required any special skill; he said that “it.is done by midwives, nurses, students, physicians, and even those who are not educated in medicine in any way.” *359 The present suit in trespass to reeóver damages was brought against defendant on behalf of the injured child by her father Joseph K. McConnell and by the latter in his own right. At the conclusion of plaintiffs’ testimony the court entered a nonsuit. It is their contention that the case should have been submitted to the jury, and that the court was in error’ in negativing defendant’s ‘ responsibility ás a mattér of law. They do not charge defendant personally with any act of negligence either of commission or omission; they-apparently concede that hé is an obstetrician of high repute and that the operation he performed on Mrs. McConnell was entirely satisfactory and not subject to criticism. On the other hand, their testimony made out a prima facie case of negligence against the interne, and therefore the only legal question involved is whether the doctrine of respondeat superior applies, that is ’to'Say, whether, for the purpose of and during the course of the operation, which included the immediate caretaking of the infant child, the interne was, in the view of the law, the servant or employee of defendant. Counsel- for both plaintiffs and defendant agree that there is no exact precedent in Pennsylvania for the determination of this question, and little, if any, in other jurisdictions. However, the ’general principles applicable to the situation are not only clear, but so firmly established that there is no need to éxplore any new and hitherto uncharted pathway in the law. These applicable principles are as follows: ' 1. In determining whether a person is the servant of another, the essential-test is whether he-is subject to the latter’s control or right of control with regard not only to the work to be done but also-to the manner of performing it: Walters v. Kaufmann Department Stores, Inc., 334 Pa. 233, 235, 5 A. 2d 559, 560; Joseph v. United Workers Association, 343 Pa. 636, 639, 23 A. 2d 470, 472. The true criterion is the existence of power *360 to control the employee at the time of the commission of the negligent act: McGrath v. Edward G. Budd Manufacturing Co., 348 Pa. 619, 623, 36 A. 2d 303, 305. 2. A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services; he may become the other’s servant as to some acts, and not as to others: Rest. Agency, § 227. The important question is not whether he remains the servant of the general employer as to matters generally, but whether, as to the specific transaction in question, he is acting in the business of, and under the direction of, the one or the other: § 227, Comment a. Where one person lends his servant to another for a. special employment .the test is whether, in the particular service he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired: Lang v. Hanlon (No. 1), 305 Pa. 378, 382, 157 A. 788, 789; Rosen v. Diesinger, 306 Pa. 13, 158 A. 561; Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A. 2d 596, 599; Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 413, 414, 45 A. 2d 59, 61. 3. A person may be. the servant of two masters, not joint employers, at one time as to one act, provided that the service to one does not involve abandonment of the service to the other: Rest. Agency, § 226. Such is the case where an employee is transferred to carry on work which is of mutual interest to both of two employers and to effect their common purpose: Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 414, 45 A. 2d 59, 62; Kissell v. Motor Age Transit Lines, Inc., 357 Pa. 204, 209, 53 A. 2d 593, 596. 4. When different inferences can fairly be drawn from the evidence as to who is the controlling master of the borrowed employee at the time of the commission of the negligent act, it is for the jury, not the court, to *361 determine the question of agency: Dunmire v. Fitzgerald, 349 Pa. 511, 516, 37 A. 2d 596, 599; Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 414, 45 A. 2d 59, 62; Kissell v. Motor Age Transit Lines, Inc., 357 Pa. 204, 209, 53 A. 2d 593, 595, 596. In applying these principles of agency to the present case it is to be noted at the outset that defendant’s obligation under his contract with Mrs. McConnell included not only her prenatal care and the delivery of her child, but also the care of the latter until it was turned over to the family physician. Mrs. McConnell testified, when asked what defendant “said he would do”, that “he would perform a caesarian operation and care for the baby for the sum of $200.” Defendant himself, when asked what his agreement covered and whether his liability was to continue until the baby was turned over to the family doctor, answered that “I so considered that it was.” It may well have been in contemplation that he might need help in taking care of the new-born infant, and, as it subsequently turned out, such help was essential, but the necessity of employing assistants is one of the ordinary circumstances of both business and professional life; it is to regulate just such situations that the law of agency exists. In' selecting a person to aid him in carrying out that part of his undertaking defendant was presumably free to make his own choice; there is nothing in the record to indicate that he was compelled to employ an interne; as previously stated, he testified, that as far as the insertion of the silver nitrate solution was concerned it would not have been necessary to use any licensed physician at all. What he chose to do was to call for and borrow from the hospital an interne who thereby became—or so at least a jury might find—his temporary servant or employee for the purpose for which he was engaged. *362 The next important fact to be considered is that defendant himself testified that he had complete control of the operating room and of every person within it while the operation was in progress. To the'question whether they were all Subject to his orders during that-period his answer was: “Sure”. Asked whether the interne- was bound to carry out his orders, his nnsVer was :’ “That' is tíorrect”; And indeed it can readily be understood that in the course of an operation in the operating room of a hospital, and until the surgeon leaves that room at the conclusion of thé opération, (the “operation” in the present case including the tying of the cord and the insertion of the silver nitrate solution in the infants eyes) he is in the same completé charge of those who are present and assisting him as is the captain of a ship over all on board, * and that such supreme control' is indeed essential in view of the high degree of protection to which an anaesthetized) unconscious patient is entitled, a protection which Mrs. McConnell could justly claim in this casé by reason Of her trust and confidence in, and necessary reliance upon, the surgeon she employed to take care of hér and her child when born. If, then, it be true that defendant had ’supervisory control and the right to give orders to the interne in regard to the very act in the performance of which the latter was negligent, it would follow, according to the’ classical test of agency hereinbefore stated, that a jury would be justified in concluding that the temporary relationship betweén defendant and the interne was *363 that of master and Servant, and that consequently defendant- was. legally liable. for the harm caused by any negligence on the part of the interne. As succinctly stated by Mr. Justice (now Chief Justice) Maxey in Rodgers v. Saxton, 305 Pa. 479, 488, 158 A. 166, 169: “Responsibility is .commensurate with authority”. Nor is it a tenable argument that- defendant should be relieved from legal responsibility because; the hospital furnished the services of an interne just as it furnished the silver nitrate-solution and the facilities of its laboratory and just as it furnished Mrs. McConnell with a room and board upon her payment of the hospital charges. The difference between the hospital’s supplying mere mechanical implements or medicines and its furnishing, at defendant’s request, an interne to assist him in the-operating: room.in the discharge of a duty which rested primarily’on defendant’s own shoulders, is obvious, because, by the interne’s becoming subject to his control, he became, responsible for the proper performance by the interne of all acts .done in subordination to-such control, whether defendant actually exercised it or not, and it would make no difference, in view of such control, whether the interne was furnished by the hospital or had been obtained in some other manner. As far as the evidence discloses' it was’ defendant, not the hospital, who assigned the interne; to the task of inserting the silver nitrate solution into the infant’s eyes, and, even if-in the performance of that act he may also have been serving the hospital, that fact would not change his legal status, with respect to defendant, since a borrowed employee may, in the performance of a given act, be serting the interests of both his general employer and his temporary master. It is urged by defendant that the rule of law in regard 'to a “borrowed employee” should no’t apply where the employee ,is a regular part of the personnel of a public or quasi-public hospital. But such an employee *364 can be temporarily detached, in whole or in part, from the hospital’s general control, just as in Siidekum, Administrator, v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A. 2d 59, a policeman was held to have been borrowed from the city’s police force so as to become the temporary servant of a charitablev institution for the purpose of driving its truck on the particular occasion when, by his negligence, an accident occurred. Defendant’s counsel cites several cases from other jurisdictions in an attempt to show that an operating surgeon is not generally held liable for the negligence of hospital internes and nurses. In those cases, * however, the negligence on the part of the nurse or interne was in connection with the post-operative care of a patient, not administered in the presence or under the control of the surgeon. Plaintiffs do not contend that a surgeon’s liability should apply, after the operation is concluded, to treatment administered by floor nurses and internes in the regular course of the services ordinarily furnished by a hospital; as to all such care and attention they would clearly be acting exclusively on behalf of the hospital and not as assistants to the surgeon. But for the period of the operation itself the situation is entirely different, and if operating surgeons were not to be held liable for the negligent performance of the duties of those then working under them, the law would fail in large measure to afford a means of redress for preventable injuries sustained during the course of such operations. In Jordan v. Touro Infirmary, 123 So. 726, 730 (La.), the Court said: “As we have seen from the testimony that the nurses are absolutely under the orders of the surgeons in the operation room and in no manner con *365 trolled by the officers of the defendant [hospital], it [the hospital] has no responsibility for the acts of the nurses. They may be considered, pro hac vice, as the servants of the surgeon.” • * In Aderhold v. Bishop, 94 Okla. 203, 206, 221 P. 752, 754, the Court stated that “While the head nurse and her assistants were , the general employees of the El Reno Sanatarium, they were nevertheless, during the time required for. the actual operation, under the direction and supervision of the operating surgeons, and were the servants of the operating surgeons in respect to such services as were rendered by them in the performance of the operation, and for any negligence on the part of such employees in the performance of such services the operating surgeons are liable.” In Emerson v. Chapman, 138 Okla. 270, 280 P. 820, it was held that where a surgeon performs an operation at a hospital, and a nurse, an employee of the hospital, is used by him to remove adhesive tape and, with a fluid, clean the body of the patient then under an anaesthetic, the surgeon is liable for any negligence on the part of the nurse in applying the fluid for the reason that she was then under the immediate supervision and control of the operating surgeon. In Davis v. Potter, 51 Ida. 81, 2 P. 2d 318, it was held that where the evidence disclosed that the surgeon supervised the placing of a patient in bed in the hospital after an operation, he was liable for the negligence of a nurse which resulted in the patient being burned by a hot water bottle which the nurse had placed there. In that case the surgeon obviously extended the period during which his responsibility continued by assuming the duty of conveying the patient from the operating room to her own room and there seeing that she was placed safely in bed. In Simons v. Northern Pacific Rwy. Co., 94 Mont. 355, 366, 367, 22 P. 2d 609, 613, the Court said: “The *366 mere tact that an assistant-to a physician or surgeon is himself, or herself, a member of the same ora similar profession, does not take the employer and employee out of the operation of the rule of respondeat superior. Where a physician retains complete control . . . but delegates to another the manual administration of the prescribed treatment; the relation of principal and agent, exists, whether the person administering the treatment bé a dayman, a physician, or a nurse.” In Ales v. Ryan, 8 Cal. 2d 82; 105, 64 P. 2d 409, 420, it was said: “The surgeon in absolute charge of and who is directing the operation [performed by him at a hospital] . . . is responsible for the negligent act of the assistant, [a nurse who was an ’employee of the hospital] in failing to remove a sponge from the abdomen.” In Ybarra v. Spangard, 25 Cal. 2d 486, 492, 154 P. 2d 687, 690, the Court stated that “In this connection, it should be noted that while the assisting physicians and nurses may. be employed by the hospital or engaged by the patient, they normally become the temporary servants Or agents-of the surgeon in charge while the operation is in progress, and liability may be imposed upon him -for their - negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable for thé negligence of an assisting nurse who leaves a-sponge or other object, inside a patient, and the fact that the duty of seeing that’ such mistakes do not-occur is delegated to others ’does not absolve the doctor from responsibility for their negligence.” In the present case the' court erred in entering a non-suit. It is for the jury to determine whether -the relationship between defendant and the interne, at the time the child is eyes were injured was that of master and servant. If such was the; relationship, defendant is legally liable for the injury caused; by the interne’s alleged negligence. In determining whether the interne was defendant’s servant at that time, the mere fact that he was then in the general employ of the hospital would *367 not prevent the jury from finding that he was also at that same time the servant of defendant, if he was then subject, to his orders in respect to the treatment of the child’s eyes with the silver -nitrate solution. Order reversed . and record; . remanded with a procedendo. ... ...... Footnotes [*] As. to the personal liability, of .the captain, of a. vessel for negligent acts of the subordinate, officers and crew, whether or not appointed or employed by him, see Denison v. Seymour, 9 Wend. (N. Y.) 9; Ryall v. Kennedy, 40 N. Y. Superior Ct. (8. Jones & Spencer) 347, affirmed 67 N. Y. 379; Daret v. Gray, 12 La. Ann. 394; 58 C. J. 288 [§ 400] b; Story on Agency, 9th ed. pp. 386, 387, § 314; idem., p. 388, § 316. [*] Covington v. Wyatt, 196 N. C. 367, 145 S. E. 673; Harris v. Fall, 177 Fed. 79; Harlan v. Bryant, 87 Fed. (2) 170; Hohenthal v. Smith, 114 Fed. (2) 494; Stewart v. Manasses, 244 Pa. 221, 90 A. 574.