Joan and John Hendley sued Glenn Evans, M.D., andhis employer, Valdosta Medical Clinic, RC. (the defendants), for medical malpractice. The Hendleys contend that Joan Hendley suffered a vessel collapse during a medical procedure performed by Dr. Evans. They contend that Joan Hendley sustained brain damage and other physical injuries as a result of acts and omissions of Dr. Evans and of hospital personnel who were working under Dr. Evans’s supervision at the time of the collapse. A jury returned a defense verdict, upon which the trial court entered judgment. The Hendleys appeal.
The Hendleys argue that the trial court erred in failing to give any of several jury charges they requested on the issue of Dr. Evans’s potential vicarious liability for the acts and omissions of hospital personnel. We agree that the trial court was required to charge on this theory of recovery, and accordingly we reverse.
We find no merit, however, in the Hendleys’ arguments that the trial court erred in failing to give other requested charges on evidentiary presumptions and circumstantial evidence or in giving Dr. Evans’s requested charge on accepted risk. Finally, in light of our disposition and given the impending change to Georgia’s evidence rules, we do not address the Hendleys’ claim that the court erred in excluding as hearsay certain witness testimony that they argued was subject to the res gestae exception.
1. Facts and proceedings below.
The trial evidence showed that on November 9, 2005, a doctor in Dr. Evans’s practice performed a diagnostic heart catheterization procedure on Mrs. Hendley at a hospital. During the catheterization
Dr. Evans performed the angioplasty procedure. During that procedure, Mrs. Hendley’s blood pressure dropped and one of her bloodvessels collapsed. Dr. Evans then called a “Code Blue.” Hospital personnel in the operating room performed CPR on Mrs. Hendley and, after multiple attempts, intubated her. During the Code, however, Mrs. Hendley’s oxygen saturation dropped to a dangerous level. The Hendleys presented evidence that she sustained some brain damage from lack of oxygen following the vascular collapse.
Mrs. Hendley remained intubated for several weeks after the Code due to complications, and after several unsuccessful attempts at extubation she underwent a tracheotomy. The doctor who performed the tracheotomy found damaged tissue and scarring in her esophagus. The Hendleys presented evidence that this scarring was a complication of the multiple intubation attempts and prolonged intubation. After continued complications and additional surgeries, Mrs. Hendley’s voice box was removed and she is now permanently dependent on a tracheostomy.
2. Jury charges.
The Hendleys argue that the trial court erred in denying their requests for jury charges on the following issues: the borrowed servant doctrine, respondeat superior, agency, imputed negligence, evidentiary presumptions arising from a party’s failure to produce evidence or witness testimony, and circumstantial evidence. They also argue that the trial court erred in giving the defendants’ requested charge on accepted risk.
“A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject.” (Citations and punctuation omitted.) Gates v. Navy,
Concerning the issue of Dr. Evans’s vicarious liability, the Hendleys sought that the jury be charged on the borrowed servant doctrine or, alternatively, be given the pattern charges on respondeat superior, agency and imputed negligence. The trial court, however, declined to give any of these requested charges, and its final charge did not instruct the jury on the issue of Dr. Evans’s possible vicarious liability.
As detailed below, the trial court did not err in declining to give the specific charge that the Hendleys requested on the borrowed servant doctrine, because it was not a fully accurate statement of the law. The Hendleys, however, presented some evidence from which a jury could find Dr. Evans vicariously liable for the negligent acts and omissions of hospital personnel, and the trial court was required to instruct the jury on this theory of the Hendleys’ case. The court’s failure to give any instruction on vicarious liability was reversible error.
(i) A doctor may be found liable under the theory of respondeat superior for the negligent acts of his employees. See Packer v. Gill,
Accordingly, the borrowed servant doctrine “is applied in the context of the tort doctrine of respondeat superior.” Summerlin,
The requirements for the borrowed servant doctrine to apply are well settled in this state[.] In order for an employee to be a borrowed employee, the evidence must show that (1) the*313 special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant. Six Flags Over Ga. v. Hill,247 Ga. 375 , 377 (1) (276 SE2d 572 ) (1981).
(Punctuation omitted.) Tim’s Crane & Rigging v. Gibson,
A number of Georgia cases have explored the parameters of this basis for imputing liability in the context of a hospital operating room. In Miller v. Atkins,
The defendants contend that Ross stands for the proposition that the borrowed servant doctrine may only be used defensively by a party seeking to transfer vicarious liability to another party. They assert in their appellate brief that neither Ross nor the other Georgia cases addressing the borrowed servant doctrine in the hospital context “permit a medical malpractice plaintiff to assert the [b]orrowed [s]ervant [djoctrine as an affirmative theory of recovery.”
We disagree with the defendants’ depiction of the function of the borrowed servant doctrine. To say that a plaintiff has no affirmative cause of action against a negligent actor’s employer is contrary to the doctrine of respondeat superior, under which employers may be vicariously liable for their employees’ negligence. Outside of the operating room context, we have held that an employer could be vicariously liable on a plaintiff’s claim based on the negligence of a borrowed servant. See Coe v. Carroll & Carroll, Inc.,
Moreover, the position advocated by the defendants would result in unnecessary lawsuits being filed against hospitals or other similarly-situated institutions in cases where the undisputed facts showed those institutions had no liability. The defendants’ own appellate brief illustrates this undesirable result. The defendants contend that a plaintiff is not entitled to jury charges on the doctrines of respondeat superior, agency, or imputed liability because “[t]he [b]orrowed [s]ervant [d]octrine provides the only avenue in Georgia through which liability for the alleged negligent act of a hospital employee [can] be imputed to an independent physician.” (Emphasis supplied.) But the defendants also contend that a plaintiff is not entitled to a jury charge on the borrowed servant doctrine unless the plaintiff sues the hospital as well as the doctor. As a result, under the defendants’ view, the only way that a plaintiff injured by the negligence of hospital
We have found no Georgia authority that requires the outcome proposed by the defendants — forcing medical malpractice plaintiffs to sue hospitals merely to preserve their causes of action against doctors. Given the lack of authority demanding this outcome, we decline to read into Georgia’s doctrine of respondeat superior an exception for borrowed servants that would impose such a requirement upon medical malpractice plaintiffs.
(ii) But the specific charge requested by the Hendleys on the borrowed servant doctrine was not a fully accurate statement of the law. Their requested charge stated: “Once a doctor enters the operating room and takes charge of the proceedings then the doctor becomes the master of all of the operating room personnel and their negligence during the course of the master-servant relationship will be imputable to the doctor.” This charge did not comport with the requirements for a transfer of liability under the borrowed servant doctrine as articulated by our Supreme Court in Ross, which included the additional requirement that the tasks performed by the borrowed servants involve professional skill and judgment. See Ross,
(iii) Nevertheless, the court was required to instruct the jury on the law as to every controlling, material, substantial and vital issue in the case, whether or not a proper charge was requested. Duffield,
The trial evidence justified a charge on the issue of Dr. Evans’s vicarious liability for the negligence of hospital personnel regarding the ventilation of Mrs. Hendley during the Code Blue. The Hendleys presented some evidence from which a jury could infer that the hospital employees in the operating room at the time of the Code Blue breached the standard of care in their treatment of Mrs. Hendley by not providing her with proper ventilation (which the parties refer to as being “masked and bagged”) prior to her being intubated. The Hendleys’ expert witness testified that it appeared from the records
And there was some evidence from which a jury could find the requirements for a transfer of any liability for these hospital employees’ acts and omissions from the hospital to Dr. Evans. Although the defendants argue that there was no evidence that the hospital had completely yielded control over the operating room personnel to Dr. Evans, Dr. Evans himself agreed at trial that, when he entered the operating room to perform the angioplasty procedure, he “took control of [the] surgical suite” and that, as the operating physician, he gave direct orders to the four other people in the room. He also testified that, during the Code Blue, he delegated tasks to the other people in the operating room. The defendants’ expert witnesses also agreed that Dr. Evans directed the actions of the others during the Code Blue. The defendants do not argue that the actions of the operating room personnel pertaining to the ventilation and resuscitation of Mrs. Hendley during the Code Blue were not actions requiring professional skill or judgment.
We agree with the defendants, however, that there was not trial evidence to support the Hendleys’ other argument, that Dr. Evans was vicariously liable in regard to an air bubble that may have entered Mrs. Hendley’s circulatory system at some point during one of her procedures. The Hendleys have pointed to no evidence in the record tying the suspected air bubble to any act or omission of a hospital employee during the time when Dr. Evans was in the operating room to perform the angioplasty procedure or during the subsequent Code Blue. See generally Doctors Hosp. of Augusta v. Bonner,
In summary, there was evidence supporting the Hendleys’ theory that Dr. Evans should be held vicariously liable, under the principle of respondeat superior, for negligence of hospital personnel pertaining to the ventilation of Mrs. Hendley during the Code Blue. Accordingly, vicarious liability was a properly asserted and legally cognizable theory of the Hendleys’ recovery. Because the trial court failed to charge on this theory of recovery, we must reverse. See Duffield,
(b) The trial court did not err in failing to charge the jury on evidentiary presumptions.
The Hendleys requested that the trial court give the following two pattern charges on evidentiary presumptions:
When a party has evidence that rejects (or disproves) a claim or charge made against the party and he/she fails to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded. This presumption may be rebutted, however.
Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.160 (2010).
If a party fails to produce an available witness, the jury shall determine whether such a failure warrants the inference that the witness, if produced, would have testified to facts prejudicial to the party failing to produce the witness.
Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.161 (2010). The charges derive from OCGA § 24-4-22, which provides:
If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.
Comparable provisions to this Code section have been included in the revision to Georgia’s Evidence Code, which goes into effect on January 1, 2013. See OCGA § 24-14-22.
(i) The Hendleys argue that pattern charge § 02.160 should have been given because the defendants failed to produce evidence regarding whether Mrs. Hendley was ventilated, through the method the parties refer to as being “masked and bagged,” before being intubated. But the principle set forth in OCGA § 24-4-22 applies only in
(ii) The Hendleys argue that pattern charge § 02.161 should have been given because the defendants did not produce testimony from Dr. Evans, doctors who were partners in the Valdosta Medical Clinic, or any other witness to rebut the medical records that the Hendleys contend showed that Mrs. Hendley was not “masked and bagged.” The requested charge was inapplicable to Dr. Evans, because the evidentiary presumption does not apply to the decision of a party defendant not to testify, see Maloy v. Dixon,
(c) The trial court did not err in failing to give the jury the Hendleys’ requested charge on circumstantial evidence.
The Hendleys argue that the trial court erred in declining to give the following charge: “I charge you that circumstantial as well as
(d) The trial court did not err in charging the jury on accepted risk.
The Hendleys argue that the trial court erred in giving the following jury charge:
I charge you that in the event a plaintiff develops a certain condition or an event occurs which is recognized to be an accepted risk or known complication of medical treatment, that on its own is not proof of negligence. It is for you to determine whether such condition is a medically accepted risk, known complication of plaintiffs’ medical treatment, or negligence.
The first sentence of the challenged charge is a correct statement of law. Barham v. Levy,
3. Hearsay evidence.
The Hendleys also argue that the trial court erred in excluding as hearsay testimony from a person who was working in the operating room at the time of the Code Blue. They proffered that this witness would testify that she heard another person in the room — whom she could not identify — mention a “possible air embolus” during the Code. The Hendleys argue that this testimony should have been allowed under the res gestae exception to the hearsay rule. We decline to review the trial court’s decision on this issue, because as of January 1, 2013, Georgia’s evidence rules will change and any opinion we might make on the admissibility of the evidence on retrial under the
Judgment reversed.