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Foster v. Englewood Hospital Ass'n

MAY 20, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.


The plaintiff, Dorothy Foster, as administrator of the estate of Vercey Lee Foster, brought an action for wrongful death against the defendants, Englewood Hospital Association, Grace Meyer, a nurse, and Evelyn P. Hausman and Continental Illinois National Bank and Trust Company, co-executors of the estate of Dr. Charles Hausman, who died prior to suit. The plaintiff alleged that the negligent medical treatment by one or more of the defendants or Dr. Hausman was a proximate cause of death.

A jury returned a verdict in favor of the plaintiff against all defendants in the amount of $300,000. The court granted Hausman's estate's motion for judgment notwithstanding the verdict, but the post-trial motions of Grace Meyer and the Englewood Hospital Association were denied.

The plaintiff has appealed from the judgment notwithstanding the verdict in favor of Hausman's estate, and the defendants Grace Meyer and the Englewood Hospital Association have appealed from the judgment in favor of the plaintiff. The plaintiff contends that the trial court erred in entering judgment notwithstanding the verdict in favor of Hausman's estate because there was sufficient evidence demonstrating Dr. Hausman's negligence.

The only error assigned by the defendants Meyer and Englewood Hospital is the denial of their motion for a new trial which was based on an evidentiary ruling.

On July 23, 1969, Vercey Lee Foster injured his shoulder while playing football in a park near his home. The following morning he was admitted to the emergency room at Englewood Hospital. The first physician to examine him was Dr. Francisco Hernandez, who conducted a complete physical examination which revealed a possible dislocation of the left shoulder. Thereafter, Dr. Hernandez called the attending surgeon of the day, Dr. Henry Pimentel, who ordered X-rays. Dr. Pimentel conducted an examination and arrived at a diagnosis of a shoulder separation. Both doctors determined that Foster was otherwise healthy and normal, and surgery was prescribed.

The defendant, Grace Meyer, is a qualified anesthetist, who first saw Foster in the operating room the following day. He was brought in on a cart and appeared to be a little apprehensive. She had worked with Dr. Hausman many times before.

She began an intravenous solution of sodium pentothal into Foster's right arm at 10:25 A.M. The solution was mixed the previous Monday, but she did not know who mixed it. The dosage was given at one time, slowly, to observe the loss of lid reflex. The manufacturer of sodium pentothal recommends a test dosage, then a 60-second pause to observe the affect on the patient. She did not wait 60 seconds to watch the reaction. She gave him a larger dose because he was apprehensive. She then replaced the pentothal with a solution of dextrose in water. After that the patient received another anesthetic — penthrane, nitrous oxide and oxygen. A muscle relaxant, anectine, was also administered, after which she opened his mouth and placed a tube into his trachea. The patient then received penthrane, nitrous oxide and oxygen through the tube from a machine. After this was done, Dr. Hausman draped the patient from head to toe, leaving an opening for the surgery. The operation began at 10:35 A.M. and was completed in 15 minutes. Dr. Lontok and Dr. Villafria assisted Dr. Hausman.

Before and during the operation Meyer recorded Foster's blood pressure. It was as follows: at 10:20-150/80 with a pulse of 92; at 10:30-120/50 with a pulse of 90; at 10:40-120/50 with a pulse of 88; at 10:50-110/50 with a pulse of 88; at 11:00-100/50 pulse not recorded. Meyer first assisted the patient's breathing when she started the anectine at 10:25 A.M. He was breathing spontaneously, but shallowly, during the course of the operation, and she was assisting him by hand manipulation of the bag on the anesthetic machine. At 11 A.M., he was not breathing, and she was assisting him by totally controlling his aspiration. At 11:05 A.M. the operation closed, the patient's breathing was totally assisted, and Dr. Hausman left the operating room. From 11:05 to 11:10 Meyer continued controlling Foster's respiration, giving him oxygen. She then asked another nurse if a Bennett resuscitating machine was available in the recovery room because the Bennett gives better respiration than the hand controlled bag.

At 11:10 A.M., Foster's respiration was totally paralyzed. Meyer disconnected the anesthetic machine from the intubation tube. Foster was lifted from the operating table onto a cart. He still had the endotracheal tube in his mouth, and Meyer controlled his respirations with a high percentage of oxygen. She gave Foster an excess of the required amount of oxygen and then controlled and forced the respiration in order to build up a higher concentration of oxygen in the bloodstream. Meyer testified that this amount of oxygen would serve him for three minutes. The endotracheal tube was taken from Foster's mouth, and he was wheeled to the recovery room about 50 to 75 feet down a straight corridor. It took a minute or less to wheel him there. During the trip Foster's lungs were completely paralyzed, and he was not breathing.

Meyer connected the patient to the Bennett machine at which time his blood pressure was 80/50. This was the first time that she realized Foster was in serious difficulty. Foster's pulse could not be detected at 11:10 A.M., and he had no pulse reported at 11:15 A.M. At 11:20 A.M. he had no respiration and no blood pressure, and various doctors were attempting resuscitative procedures. He was reported expired at 12:15 P.M.

Dr. James Eckenhoff, a qualified anesthesiologist, in response to a hypothetical question, testified that the patient died from a lack of oxygen. He based his opinion on the fact that the patient needed continuous supportive respiration by controlled ventilation at all times and he did not have assisted ventilation until late in the case. The coroner's pathologist testified that his findings were compatible with death due to lack of oxygen.

The trial court granted the motion of Hausman on two grounds: "the general insufficiency of the evidence" and the inadmissibility of the widow's testimony under the Evidence Act. Since we cannot tell what insufficiency the trial court was referring to, we will follow the battle-lines that have been drawn in this court by the parties themselves.

The first question to be resolved is the law applicable to liability, that is, what standard of conduct is to be imposed on a surgeon when the negligent act that directly caused the injury was committed by a person employed by the hospital?

• 1 In Graham v. St. Luke's Hospital, 46 Ill. App.2d 147, 159, 196 N.E.2d 355, the complaint charged that a nurse negligently injected a hypodermic needle nine days after a successful operation. At the time, the defendant surgeon was not present. In upholding a directed verdict for the surgeon, the court said: "[I]t is clear that a physician is not liable for the negligence of a nurse or intern, who are employees of a hospital and not under his personal control or supervision." (Emphasis added.) The following rule is stated in 12 A.L.R.3d 1017, 1021, and the Graham case has been cited in support of it:

"An operating surgeon may be held liable for the negligence of an assisting nurse who is in the general employ of a hospital not owned or controlled by the surgeon where the alleged acts of negligence are done while the nurse is under the direct control or supervision of the surgeon."

This rule has been recognized in 20 other jurisdictions, in one of which the surgeon is compared to the captain of a ship. (McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.) The basis for all the decisions upholding liability appears to be that the hospital employee becomes the "borrowed servant" of the surgeon. See Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589; Aderhold v. Bishop, 94 Okla. 203, 221 P. 752; McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.

We are not persuaded of the fairness of a rule which would permit the invocation of the doctrine of respondeat superior for every act of negligence by an employee of the hospital simply because the employee came under the temporary supervision or control of the operating surgeon. As a practical matter, the personnel of the hospital and their abilities are often unknown to the surgeon. He may request the assignment of a particular person but usually has little voice in the selection of those who will assist him. The surgeon's own acts, which most directly affect the life and well being of a patient, charge him with his own awesome responsibility. He should not also be saddled with the role of guarantor of the patient's safety from the negligence of others.

• 2 Nor do we accept the rationale of those decisions based on the borrowed servant doctrine, which provides that an employee may with his acquiescence or consent be lent by his general employer to a third person for the rendition of a special service, and thereby become the employee of the latter in the performance of such special work. The relationship of employer-employee is not an ephemeral one to be imposed or removed lightly. There are certain rights which accrue to the employee and liabilities which attach to the employer. For these reasons the law requires that before a person may be considered a borrowed servant his services must be loaned with his acquiescence or consent (M & M Electric Co. v. The Industrial Com., Sup.Ct.No. 45494, Agenda 13, January, 1974); and he must become wholly subject to the control and direction of the second employer, and free during the temporary period from the control of the original employer. (Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 123, 171 N.E.2d 60.) In order to create the relation, therefore, the original employer must resign full control of the employee for the time being, it not being sufficient that the employee is partially under the control of a third person. (I.L.P. Employment § 2, page 368.) It would thus appear under this doctrine that both the doctor and the hospital could not be liable for the same negligent act of the hospital's "employee."

While the right to control the manner in which the work is done is an important factor, it is not a conclusive one. In Nordland v. Poor Sisters of St. Francis Seraph of Perpetual Devotion, 4 Ill. App.2d 48, 59, 123 N.E.2d 121, an intern sued a hospital for injuries received while he was assisting surgeons during an operation. Summary judgment was granted for the hospital on the ground that the plaintiff was an employee of the hospital and thus subject to relief only under the Workman's Compensation Act. The plaintiff contended that at the time of his injury he was a loaned employee of the surgeon. The court held, as a matter of law, that he was not:

"In the case before this court it was a part of the hospital's business to furnish the use of the intern, and the fact that during the period of the operation the intern was subject to the direction of a physician does not change the relationship. Here the furnishing of the intern necessarily involved the circumstances that the intern furnished would carry out the directions of the physician in charge, and such duty is recognized by the rules of the hospital governing interns: that he will fulfill orders for treatment given by the attending physician and his own orders must not conflict with those. When he was injured he was acting for the hospital under the directions of the surgeon. It still was the duty of the hospital to see that he carried out the directions devolving upon him as an intern. If the plaintiff did not exhibit the knowledge and skill which a person of his medical education and position should exhibit, or if he did not comply with the directions of the physician, he could have been discharged by the hospital."

• 3 A nurse is still subject to the rules and regulations of the hospital, and the doctor may not gainsay them. (Olander v. Johnson, 258 Ill. App. 89.) She may be discharged by the hospital but not by the doctor. The hospital, not the doctor, furnishes the equipment that the nurse uses, and she is paid by the hospital. (See Coontz v. The Industrial Com., 19 Ill.2d 574, 577, 169 N.E.2d 94.) We conclude, therefore, that the employees of the hospital assisting a surgeon remain the employees of the hospital even though the surgeon retains some degree of control over them.

• 4 We do believe, however, that analogous authority supports the general rule that a doctor may be held liable for the negligence of a hospital employee who is subject to the doctor's control or supervision. The law imposes a duty, for example, on one who entrusts work to an independent contractor, but retains the control of any part of the work, to exercise that control with reasonable care. (Restatement (Second) of Torts § 414.) As the comments to section 414 of the Restatement point out, liability may attach to one who retains less than that degree of control necessary to establish the relationship of master and servant. Similarly, if a surgeon retains supervision or control over other persons participating in an operation, he should be required to exercise that control with reasonable care.

The defendant relies on Hall v. Grosvenor, 267 Ill. App. 119, and Olander v. Johnson, 258 Ill. App. 89, in support of her contention that there can be no liability in the absence of a master-servant relationship. We do not believe that these two cases are authority for a rule that would preclude recovery against the surgeon in every case where the negligent acts which directly caused the injuries were performed by hospital employees. It is true that both cases made the following statement: "Generally an operating surgeon is not legally responsible for the mistake of a nurse not his employee, where an operation is performed at a hospital not owned or controlled by the surgeon." (Emphasis added.) But the statement must be examined in the light of the facts of the cases. Both involved gauze sponges that were left in the patient's abdomen.

In Olander, the nurses employed by the hospital kept a record of all sponges, and the method of recording and reporting the sponge count was fixed by hospital rules. At the close of the operation the surgeon examined the field of operation and was unable to see any sponge left in the body. He then asked for the sponge count which was reported as correct. It was conceded that the operating surgeon must devote his entire time to the operation and that it would jeopardize the life of the patient for the surgeon to take the time to keep a count and make a record of the sponges used. The record disclosed that in an abdominal operation the sponges become soaked with blood and secretions and may feel like any other tissue; that occasionally they become rolled up in the abdomen behind the bowels; that the sponges cannot be seen or felt readily; and that it is sometimes almost impossible to distinguish the sponges from the tissues of the abdomen or to locate them. The record also showed that after the surgeon had removed the plaintiff's appendix and operated upon the womb, he made an inspection of the field of operation and did not find any sponge left in her body, and that to have made a further exploration would have been dangerous to the patient.

The Olander court noted that it was the right of the hospital to prescribe reasonable rules for the conduct of the institution. Any physician who used the operating room was required by the rules of the hospital to employ the equipment of the hospital. It included the nurses in attendance, the sponges supplied and the records kept. Every physician who availed himself of the privilege of operating in a hospital was required to conform to the rules of the hospital. The court said at page 99:

"It is indisputable that the operation involved in this case was conducted, so far as the defendant's conduct was concerned, in strict accordance with the established rules and customs of the hospital. It is not denied that he endeavored to see that the rules of the institution concerning the count of sponges were carefully and correctly carried out. That a mistake was made by one of the nurses was no fault of his and appears to have been made in spite of his caution. He inquired about the count and was informed that it was correct. He made an ocular examination without discovering the error. He followed the approved method of ...

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