*1 May January 19, Argued 1971, affirmed Respondents. Appellant, MAY, v. BROUN al, et P2d 776 *2 Hershberger, argued Hermiston, J. N. the cause for appellant. him on the With briefs were Morrison & Hershberger, Hermiston. argued Moore,
Thomas Portland, S. the cause for George respondent Corey, Rasmussen. H. Pendleton, respondent argued the cause Broun. With them on Bailey, Morrison & were William brief H. Mor George Joseph, Corey, M. and and rison, Portland, Byler Pendleton. Rew, & Presiding
Before Justice, McAllister, Den- Justices. Howell Holman, Bryson, ecke, HOLMAN, J. damages arising an out of al-
This is action leged negligent defendant doctors while acts hemorrhoidectomy. judg- performing Prom a a involuntary plaintiff appealed. ment of nonsuit, general practitioner a of the defendants was One plaintiff’s regular physician. He associated surgeon, purpose per- for the other defendant, forming operation while he assisted. procedure, part operative
As electrical This used to cauterize blood vessels. instrument was six feet from the which sat about machine, applicator, cord a small connected table, was shape pen, of a which contained a the size and about actually the vessels. An elec- cauterized needle plate about flat, metal, which is a rubber-backed trode, placed size, inches in had been nine inches seven the chest of the as she so it was under *3 lay electrode on the table. The down face the machine. There was a with was also connected surgeon press pedal the with his floor for on the By of current. virtue the the electrical foot to activate body part patient’s of became a the electrode, circuit. electrical operation surgery the fifth was
Plaintiff’s day, they performed that had which defendants prior operations. the in first machine the had used surgeon attempted applicator to use the the two times sufficient heat to cauter- not deliver plaintiff it did on properly, and both times the vessels ize the circulating nurse to check the machine. requested the satisfactorily and the worked Thereafter, it operation, it completed. the was found After was she had where contact with plaintiff burned was that evidence as to the cause the There is no electrode. defendants, testimony the other than the injury, to the effect who as witnesses by plaintiff, were called hooked It is incorrectly. that the machine had been up of this knowledge had no they personal apparent had told by what been relying fact and were also that it was testified They pos- hospital employees. caused a mal- a burn to have been sible such the machine. function of settled a claim against
Plaintiff nurse and them a gave and the covenant circulating of the hospital not to sue. None were called employees no testimony There is concerning witnesses. machine was hooked manner in which the incor- up or whether it if such was was rectly, possible, or safe medical for a usual, practice practical, and the the machine relation to it patient’s check use. One did its actual defendants before testify no way testing there was machine without connected to using it. actually of error assignments involve principal granting involuntary nonsuit propriety of res ipsa loquitur the doctrine whether available the facts of this under ease. As a to plaintiff result, to elaborate known necessary it is circumstances and what this evidence surrounding dis- manner of concerning preparation closes for an operation such as question one though Even there is plaintiff. on no tes- performed details of preparation concerning timony testified as the defendants ease, present prep- made, their usually aration testimony *4 contradicted. was not in the used operating
All equipment room, in- eluding the electrical owned and cauterizer, cared hospital. persons operating for tire All room, exception with the of the anesthetist and the two de- paid by hospital. were selected and fendants, Be- sides the anesthetist and the two there defendants, present operating were room nurse, scrub circulating persons and a nurse, nurse’s aide. These subject of the chief during operation. completion operation immediately
After of the prior to the one consideration, under the defendants lounge, dressing retired to a doctors’ to rest room, preparation operating and to await room for surgery upon plaintiff. procedure Usual is that the operating equipment room is all is cleaned, used re- brought pack pre- sterile is in and and a new moved, pared required items that use. Those possible contact with the doctors sterile, because patient’s operative are handled area, with subjected technique who is to sterile the scrub nurse, before enters the room. Included in she applicator pack are the cauterizer and the cord sterile connected. to which is being brought patient, oper- into the
ating is cart, room on a wheeled anesthetized while lying patient Thereafter, on cart. is he is still placed and is down, from the cart face with removed up under his abdomen. His his knees doubled chest patient placed electrode, is, then, on except draped completely sterile cloths with for a small operative appli- area. opening The cauterizer at draping, pinned the outside of the sterile cator reached as need it can be where prep- notified doctors are when these dictates. completed operation will be in suffi- arations
33
their hands
scrubbing
for them to commence
cient time
for ten
enter
minutes,
they
After scrubbing
and arms.
hold their hands and
room while
the operating
There they
them to avoid contamination.
arms before
who
sterile
nurse,
places
gowns
the scrub
are met by
then
them.
commences.
gloves upon
that he knew
the defendants
testified
One of
machine and had no idea
about the cauterizing
nothing
testified that he
The chief surgeon
how it functioned.
years,
such a machine for
but he had
many
had used
its mechanical
concerning
had any training
oper-
never
how the machine
but he
functioned,
ation. He knew
for an
He
operation.
had never set one
further
up
nurse’s
circulating
that
it was
to set
duty
testified
for the operation.
the machine up
res ipsa loqui-
of
Plaintiff
relies on the doctrine
v.
tur as
Nicholson
Sisters
Charity, applied
v.
Mayor
P2d 861
Dowsett, (1970),
Or
251,
Mayor
In permanently became paralyzed having spinal been administered a safety pin plain- anesthetic. In Nicholson, a was left in completion tiff’s operation. abdomen of an ipsa loquitur Res was used in both cases to sustain a judgment against par- the defendants. Plaintiff here ticularly upon Nicholson because, relies that case, *6 unsuccessfully the defendants made the same conten- being by tion that is made the defendants in this case. In ipsa loqui- Nicholson, defendants contended that res applicable tur duty was not because it was the nurse’s to safety pins take care of and to account for the that the doctors, therefore, exclusive control lacked agency causing injury. only safety pins in room were those which came attached tubing to the ends of rubber sections which were used press organs the doctors to aside internal within operative cavity gained so that access could be to primary operative area. application ipsa loquitur of res in Nicholson upon premise was based that, even if the nurse negligent, pin normally was would not have found way body cavity surgeons its into the unless the were negligent, they also because had exclusive actual con- everything trol of that went in and came out of cavity regardless body might duty of who have had the pins. to take care of to account for the It was based premise pin normally would not have body cavity personal neg- been left without the ligence of the doctors. ipsa loquitur doctrine of
Before the res would apply defendants, one two situations would have it more have to be shown that to exist. It -would not that either the defendants per- than probable for whose or someone was negligent negligent sonally under the doctrine actions defendants were responsible of respondeat superior. relating
A fair of the evidence analysis leads only manner in which was injured caused a machine conclusion that her hooked incorrectly which was which was defective, in relation to which was up improperly plaintiff, operated. conclusion that the evidence is insuffi-
It is our cient to establish a defend- jury question concerning ants’ The evidence does not show negligence. personal machine can be tested whether in defects. It does not show whether the exer- surgeons, check the manner care, normally cise of reasonable machine is hooked its relation to a which a up pa- if or even such check Neither does practical. tient that it is while logical expect surgeons, show severed blood be several feet cauterizing vessels, of a machine. overseeing away *7 Plaintiff contends was the of duty defendants, of the when the ma- operation at the commencement function the failed to properly, suspend chine to determine the difficulty and before they argument further. This necessarily pre- proceeded was occasioned that plaintiff’s supposes machine defendants’ the continuing operate and functioned the nurse It properly. was checked to assume that plaintiff reasonable is just time the failed function the machine burned at to assume that she as it is was burned use its initial function. it did when
n step and more is the deter- next, difficult, responsible
mination whether defendants are on a respondeat superior for the of basis actions the cir- culating justifies drawing nurse. The evidence the up an inference that either she hooked the machine incorrectly oper- its relation to or that in she during surgery. improperly ated it the being employee We start out with the nurse hospital pays of the trains and It selects, her. contrary and there is no evidence to the usual, surgeon arranges this the that for the admission patient hospital hospital of the into that the patient pay- for then contracts with and bills hospital ment of services which in- furnishes, surgical cluding cost of all services, with the personal surgeon. exception of the services of the If nothing say surgical more, there were we would a agent employee hospital. nurse was the depending upon the circumstances, However, employee loaned become a the service of nurse can difficulty determining surgeon. is in at what point under what circumstances this metamor- place. phosis takes usually
Respondeat superior determined right principal negli claimed to control gent actor. There is no doubt a has the right employees hospital, of the to control the includ ing preparation room nurse, surgery, carry patient as well as in the and of the during surgery. ing functions However, out of their general employ the nurse is in the in situation where performing and is services the hos surgeon, pital do not for the courts now as well as changes general employee usually from she hold that
37 employee special of the to a of the surgeon’s direct under the until she is Annotation “Sur entitled, cited in control. cases See Negligence,” geons at 12 ALR3d 1017 1021- —Nurse’s usually holding that courts are now 1022. Thus, employee’s surgeon’s responsibility for the negli in which limited to situations is gence during actual the course occurs respon present and that he is not when the procedures pre- post-operative which it is sible for perform employees hospital’s to usual for surgeon’s absence. ‹ lengths great to courts went one time some
At
surgeons
liability upon
respondeat superior
to attach
immunity which was
of charitable
of the rule
because
original “captain-of-
hospitals.
usually applied
to
the-ship”
Pa
65
Williams,
355,
361
v.
McConnell
following language:
(1949),
243
contained
A2d
“* * *
surgeons
[I]f
not to be
performance
negligent
held liable for the
working
the law
them,
then
under
duties of those
large
means
measure
afford a
fail in
would
during
injuries
preventable
sustained
redress
operations.”
abolished. › probably say It would be fair to that the holding surgeons wave of theory cases liable on one following or another has somewhat receded the aban by many donment courts of the doctrine of charitable immunity hospitals.
Changes
occurring
have also been
in the con-
operating
Surgeons
fines
rooms.
are
highly
more and more in a
mechanized environment
wholly
by hospitals.
highly
created
Much
technical
equipment,
necessary,
by
now considered
is furnished
operated by personnel
which the hos-
pital hires and trains. As a
in most
result,
instances,
surgeon
actually
cannot
have direct
equipment
persons
control over such
and the
who
operate
present,
going
it even when he is
if he is
give
surgery
the concentration and attention to the
patient
right
expect.
which his
has the
only
There are
three cases which we have been
patients
able to find where
were burned
the elec
trode of
eauterizer. Two
resulted
the courts’
refusing to hold the doctors liable. In Bakal v. Uni
versity Heights
302 NY
100
Sanitarium,
870,
NE2d 51
(1951),
plaintiff
was burned as the result of failure
apply
properly
of the nurses to
ointment
to the chest
placing
her on
before
the electrode. The
trial
651,
814,
198 Misc.
99 NYS2d
dismissed
court,
surgeon
complaint
ruled that there was
negligence.
Appellate
no evidence of his
The
Division,
App
(1st Dept.),
572,
277
Div
In 54 L Abs 254, v. Ohio › Hungerford Sanitarium, v. Portland 235 Or 384 P2d cauterizing (Ohio 1948), App machine, NE2d 644 one surgeon, having inspected was re been personnel placed without with another plain change. informing their substitution. tiff was result of the burned as a responsible, stat not court held that ing as follows: opinion nurse the scrub “We employee of defendant not in sense preceding preparing room the task of beginning and that what-
actual that connection cannot ever occurred in 644 at 645-46. him.” NE2d attributed Hospital, 131 In Doctors the third Monk v. *10 (DC 1968), App the F2d U.S. D.C. 580 Cir go evidence to to court held that there was sufficient jury liability of the nurse and the relative to the both surgeon. from it could be the There was evidence against improperly placed found the electrode was that body patient nurse when the doctor the of the the present. was not there also was evidence that However, surgeon propriety of the asked check the nurse the placement and that he so. It was evident that did position surgeon was in that the the electrode such placement. necessarily the manner of its had notice of special surgeon have had knowl The also was shown to edge cauterizing that machine and he had written of held that under such circum on it. The court a treatise surgeon’s of the was sufficient evidence stances there go jury. spe The personal court subject pass upon cifically of whether not there did support finding evidence that the sufficient surgeon’s agent. functioned nurse equipment when technical that hold We operate it are furnished personnel to (cid:127)40 by malfunctioning
.to is caused equipment negligent operators, and it is not shown personally negligent that the or that the practical circumstances were such that it was for him to exercise direct or control over the ma- operation, respondeat superior liability chine or its surgeon. does not attach to the There is no evidence in ability, that this case indicates defendants had con- duty patient, supervise sistent with their to their directly operation. or control the machine or its The following language Agency from Mechem, Outlines (4th 1952) particu- § seem to ed would 466, n. larly applicable:
“* * * equipment [W]here furnished general employer requires special exercise unlikely part that it servant, on the so special employer do more will than ask for presumption general particular results, the that the * * *." strong employer remains is liable may appli- that the real It well be basis superior respondeat is not control, cation of actual negligent party’s putative, rather the but act of principal. carrying his forward the business of may motivating force be the idea the business negligent operation. pay cost of its See T. should “Scope of the Business: Borrowed Servant Smith, 1222 at L Rev Mich Such a Problem,” initially superior points respondeat toward *11 basis hospital surgeon liability and because of both the the simultaneously equipment carrying operator the of employers. hospital both of is in business on the furnishing personnel the facilities and of the business using oper- surgeon, them the to patient. Also, both are his ate on any satisfying judgment against capable normally of doing spreading of of so. Therefore, them and cost on that basis. would be no choice between two there making policy is a reason there However, employers whose business is choice between two being doing to choose the and, so, conducted Although responsible. no the one who should be negligence hospital may pointed specific to in of be prevention opportunities for of like occur primarily rences in the future lie the care with which personnel equipment to is maintained and with which operate opportuni selected and trained. These of the activities and ties all lie within realm duties place hospital; proper to of it is therefore, negligent operators equipment and burden of defective prevent upon pressures to devise means it. placed those should be who best future accidents power to devise such means. have it within their ipsa loquitur of hold doctrine res We application to this case because the instru- has no injury mentality person caused the was not which sufficiently within the control of shown to have been for whose actions de- or of someone defendants, responsible, application were fendants application of such that, without doctrine, evidence the de- was insufficient there doctrine, go jury. fendants’ any opinion appli express as to the not doWe plain loquitur ipsa in a situation where res cation operation, during has suffered an tiff, person any specific piece traced cannot brings against an action all who and later equipment Span operating room. See Ybarra v. within 162 ALR P2d 486, 154 gard, 2d 25 Cal *12 Plaintiff contends the trial court erred in fail- ing hearsay portion to strike as of defendants’ testimony during stated that the machine up improperly. was hooked Because we have not possible treated case as if this were the sole cause plaintiff’s injury, unnecessary it is to discuss the matter. judgment of the trial court is affirmed. concurring.
McALLISTER, J., majority showing holds that was no there opportunity that the had sufficient to exercise operation direct and control over the plaintiff’s injury. agree the machine which caused I holding, majority opinion with that and concur in the except dealing paragraph hospital’s for the with the superior opportunity prevent injuries caused negligent equipment. maintenance and question, There was no evidence on that ma- jority’s assumptions statements are based on factual which I are valid. In doubt these event, statements unnecessary holding and unrelated to the and its only possible Their rationale. effect is future confusion uncertainty as to the basis for our decision in this case.