APPEAL from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
The problems presented in this appeal originated on July 3, 1967, when Alonzo Herron, a 9-year-old boy, was struck by an automobile in Chicago. He was taken to the Garfield Park Community Hospital (Hospital). After treatment was completed, suit was filed on behalf of the minor against the Hospital and the treating physician, Dr. John J. Vitacco (defendant), on the ground of alleged negligence during treatment.
The trial before a jury failed to result in a verdict. After 2 days of trial, the Hospital made a settlement and paid $104,000. The trial continued against the defendant doctor. After the jury reported their inability to agree, defendant settled the claim for $71,000. The Hospital then filed a separate action in the circuit court seeking indemnity from defendant on the theory that the negligence of the Hospital was passive and that of defendant was active and also that the Hospital was entitled to indemnity under the doctrine of respondeat superior. After trial before a jury, a verdict was returned in favor of the Hospital. However, the trial court granted defendant's motion for judgment notwithstanding the verdict. The Hospital has appealed.
In this court the Hospital argues that it is entitled to indemnity from the doctor on the basic theory that the negligence of the Hospital was only passive while defendant was the active tort-feasor. In addition, the Hospital urges that the defendant doctor was its employee and that he is obliged to indemnify the Hospital on the theory of respondeat superior. The defendant responds that the Hospital is not entitled to indemnity because it owed a duty of proper care to the patient which it had breached so that the Hospital was guilty of active negligence. In addition, defendant urges that there should be no indemnity from him to the Hospital under respondeat superior because he was not an employee of the Hospital and the Hospital itself was guilty of negligence beyond its responsibility based upon any principal and agent relationship. A factual statement is required.
The injured minor was taken to the emergency room at the Hospital. Defendant was the physician designated by the Hospital for duty in the emergency room that evening. He was compensated by it on an hourly basis for time spent in the emergency room. The Hospital had no employment records for defendant. That evening defendant was not at the Hospital but he had requested Dr. Jamie Ramos to be present in emergency in his stead. Dr. Ramos, an unlicensed house resident employed by the Hospital as a medical technician, examined the patient. After communicating with defendant by telephone and after x-ray examination, Dr. Ramos diagnosed a fracture of the left femur. After further telephone consultation with defendant, and at his direction, Dr. Ramos had the boy admitted to the Hospital and put him into bilateral Bryant's traction. This apparatus caused both of his legs to be elevated to an acute degree so that the buttocks were raised off the bed. This was accomplished by weights appended to both legs. In accordance with defendant's instructions to Dr. Ramos, a weight of 10 pounds was used on each leg. That same evening, defendant returned to the Hospital, examined the patient and approved of the traction. Defendant remained in charge of the case as the boy's physician.
The Hospital provided a trained nursing staff which was on duty 24 hours each day. The evidence is conflicting as to the specific orders left by defendant with the nurses on the physicians' order sheet. This sheet shows that nurses were to check the patient's vital signs every half hour and record them. Defendant contends that this was sufficient to convey to the nurses that they were to check the legs of the patient for sufficiency of blood circulation. However, the evidence also shows that on the Hospital records the designated vital signs were limited to temperature, pulse, respiration and blood pressure.
The patient remained in traction for 11 days. Defendant saw him every day. The boy's legs were never lowered to a horizontal position. The bandages on his legs were never removed. On July 9, defendant loosened the bandages so that he could examine portions of the patient's legs. This procedure was followed on several subsequent occasions. The defendant testified that he found no reason to change the treatment. On July 12, the defendant ordered additional weight to be added to each leg and this was done. Defendant testified that the blood circulation to the legs was good at that time.
The detailed Hospital records of nurses' notes reveal that the boy's condition was stable from July 3 to July 8. On July 9, the first indication of problems arose. The nurse's notes for the 7 A.M. to 3 P.M. shift indicate: "Dr. Vitacco here L [left] foot edematous" (subject to a swelling caused by an abnormal accumulation of fluid). During the next two days, the nurses' notes reveal that the patient complained of severe pains in both legs and swelling of the right foot. However, the notes stated that circulation remained "good". The initial change in the temperature of the patient's foot, also indicating circulatory problems, occurs in the nurse's notes for the 3 P.M. to 11 A.M. shift on July 12: "Rt. foot sl. swollen and cool to touch."
None of the nurses who had made these notes or participated in the care of the patient testified. Thus, there is no evidence of verbal communication at any time from any of the various nurses to defendant or to any other person regarding the day-to-day condition of the patient or his symptoms.
During the morning of July 13, Dr. Maurice S. Stamler, an orthopedic surgeon on the Hospital staff, passed the room. He noticed that the patient was "distressed." He entered the room, felt the boy's feet and legs, which he found "cold," removed him from traction and told the nurse to notify the doctor. Some four hours later, Dr. Stamler checked the boy and found the left leg had color, warmth and minimal motion. On the right leg he found sensation still absent from the foot and no motion. While the patient's fractured left leg responded to treatment, the right leg had developed a circulatory deficiency known as ischemic necrosis (death from reduced blood circulation) and subsequently required amputation.
At the trial, the Hospital, seeking indemnity, called three expert witnesses. Dr. David Petty, a qualified surgeon, testified that there were dangers inherent in use of the Bryant's traction. In his opinion, this method was good for use with very small children but is practically useless in treatment of children over 3 years old. He felt that it should not be used on a child 9 years of age but that if it is used for any reason, special daily care and precautions were required such as watching the circulation, bathing and cleaning of the skin. In his opinion, the use of the Bryant's traction in this particular case was not good medical practice. This doctor also testified that changes of color in a limb which might indicate impeded circulation as well as other symptoms, such as cyanosis (a bluish discoloration due to deficiency of oxygen in the blood), coldness and pain, should be noted by the nurses who should notify the doctor and that prompt action was important.
Dr. Maurice S. Stamler, the orthopedic specialist who had come to the rescue of the patient, testified that he personally did not use Bryant's traction because he had seen complications from its use. However, it was his opinion that the use of this system was fairly common and he had seen other doctors use it. He suggested that the nurses should be advised to watch the patient but he testified that regardless of the method of traction used, the patient must "always" be watched. In his opinion, all methods of traction are similar but doctors have different opinions about the type of traction to be used. Bryant's traction was, in his opinion, an accepted medical procedure.
Dr. Donald S. Miller, a highly qualified and educated specialist in orthopedic and vascular surgery, testified that he was of the opinion that the limit in application of Bryant's traction depended upon the age and weight of the patient. He felt that the general age limit should be placed at about 4 years with the patient's weight in the area of 55 to 60 pounds but it could be used for older children up to 7 who were very thin. He testified that Bryant's traction was one option in the treatment of fractures although he personally would prefer an alternate method in treatment of a child 9 years of age. However, he further stated, in response to a hypothetical question, that Bryant's traction could be used on a child 9 years of age if there was no problem; but where there was evidence of pain or loss of blood supply to the legs, that situation would have to be remedied. He further testified that the Bryant's traction method was very good for treatment of certain age groups but that the weight of the patient was important and the age was secondary. Any method of treatment by traction or by cast made careful watching of the patient necessary. He testified that a registered nurse would be able to recognize circulatory problems by signs such as cold toes, numbness, discoloration, pain or changes of general appearance. It was not only good routine medical practice but also absolutely basic for a registered nurse to notify the doctor immediately upon noting such symptoms. There would be no excuse for failure of a supervisory nurse to notify an attending physician under those circumstances. He felt that it was highly desirable that these symptoms be communicated to the physician when first seen by anyone including the registered nurses.
As regards the weight of the minor, there is no direct evidence but only two estimates. The minor himself testified that at the time he weighed from 60 to 70 or perhaps 75 pounds. Defendant estimated ...