225 Pa. Super. 111 | Pa. Super. Ct. | 1973
Opinion by
In this appeal, the question is whether the trial court erred in granting defendant’s motion for nonsuit. The
On March 10, 1962, wife-plaintiff, Rebecca D. Muller, was admitted to Hahnemann Hospital, in Philadelphia, for treatment of coronary disease. During this hospitalization, Mrs. Muller was under the care of the appellee, Dr. William Likoff. Four days after admission, Dr. Likoff prescribed Heparin which was to be administered subcutaneously every six hours. The treatment was followed as prescribed with no untoward results. On the occasion in question, however, one Luba Stem, a registered nurse employed by Hahnemann, allegedly injected the Heparin directly into the femoral nerve.
Appellants instituted suit against Dr. Likoff. At the close of plaintiffs case, Judge Harry A. Takiff granted defendant’s motion for nonsuit. It is from a denial of a motion to strike off nonsuit by a court en banc that this appeal has been taken.
After a review of the record in this case and the applicable law, we are unable to say that the trial court erred in granting appellee’s motion for nonsuit.
A nonsuit should only be entered in a clear case. It is basic that on review the plaintiff must be given the benefit of all favorable testimony and every reasonable inference arising therefrom. Any conflict must be resolved in favor of plaintiff. Martino v. Great A. & P. Co., 419 Pa. 229, 213 A. 2d 608 (1965).
The combined testimony of plaintiff’s witnesses was in no way probative of Dr. Likoff’s right to control the manner in which Nurse Stem, or any other hospital nurse, would administer routine hospital treatment and care. There was no evidence presented to indicate that the injection of Heparin was so esoteric in nature as to require either the presence of a physician or the administration of the drug by the physician himself.
In determining whether a master-servant relationship exists, the basic inquiry is whether the person is subject to the alleged employer’s control or right to control. With respect to the instant case, we must specifically answer the question of whether Dr. Likoff had the riglit to control not only the services to be rendered, but also the manner of performing those services. Collins v. Hand, 431 Pa. 378, 246 A. 2d 398 (1968). Our case law reflects a general policy, grounded not only in reason but in practicality, that nurses employed by a hospital are not held to be servants of a physician, when they administer treatment in the regular course of hos
Two exceptions to this general rule exist. Where a physician is acting in the special relationship to hospital employees as a surgeon, the surgeon has been held responsible for the negligent acts of hospital employees who participate in the performance of an operation. Liability is imposed in such a case under the “Captain of the Ship” doctrine; but, this theory is and has always been limited to the operating room situation. See Rockwell v. Kaplan, 404 Pa. 574, 173 A. 2d 54 (1961). A second means of imposing liability on the physician is where there is evidence of the physician’s control or right to control by virtue of his physical presence in the room while treatment is being administered or where he actually employs the hospital nurse and has a right to direct or dismiss her from service. None of these circumstances exist in the instant case. On the contrary, there is no evidence that Dr. Likoff had any right of control over Nurse Stern, who acted solely as an employee of Hahnemann Hospital. All the evidence tends to support the fact that the injection of Heparin was a routine and normal hospital procedure, requiring no special skills or knowledge beyond nursing training.
Under the circumstances, we are not prepared to hold a physician liable for the routine hospital services performed by hospital nurses or other employees. To do so would place an undue hardship and an impossible cloak of responsibility about the physician.
For the reasons stated above, we affirm the order of the court below.
Testimony adduced at trial indicated that proper injection would have been either into the buttocks area or on the outer part of the thigh. Allegedly, Nurse Stern improperly injected the Heparin into the front portion of the thigh ten inches above the kneecap.