*4
instruments, clamps,
sponges.
Before
JOHNSON,
(dissenting).
SAM D.
Justice
began, the scrub nurse
front of
surgery
is respectfully
dissent
submitted.
circulating nurse counted the sponges
early
Ivey,
As
as Moore v.
We
from
v.
Okl.
court,
203,
(1923):
that
should have
587 surgeon had theory that the posed on the anaesthetic, absolutely at ence of negligent individual control the right surgeons performing mercy of the control, right to on the or, with the there was no charged if operation, negligent in injury surgeon preventable theory that no duty to see * * * right If the insist on the to control. failing to patient. to their results liable were not made surgeons operating position of than retain the historic Rather negligent performance state, appeals that of the courts of him, the working under those duties Krchnak, 422 810 in Harle v. S.W.2d fail in large measure would law in a 1967, writ Civ.App. [1st Dist.] — Houston prevent- affording a means of redress Tromly, e.), McKinney n. r. ref’d op- surgical injuries sustained able surgeon asserts that the majority supra, at 565-66. 386 S.W.2d erations.’” only of law liable as a matter may be held [Emphasis added.] conclu necessarily lead to the facts if the surgeon that a language implies This surgeon had the sion negligence occurring liable for during the nurses right to control ap- responsibility This operation. of the course many fact in to be a conceded pears adopted by applying the standard Even Jorns, Webb v. instances. most evi- examination of the majority, an relation- 407, (Tex.1972). special inevitably to in the instant case leads dence that exists between surgeon, that the the conclusion justifies patient a matter of law had Sparger, as imposition liability. of such the nurses to control the actions of relationship arises from during counts respect to patient par- of a selection conscious Indeed, in operation. of the the course patient surgeon, the reliance ticular writer, is over- of this such evidence opinion surgeon, on the skill whelming. any of patient to control inability relationship with the respect With to his occurring during surgery, the the actions nurses, as follows: testified selected will expectation that opera- “Q And course *6 patient’s expecta- operation, control tion, of treatment or or the course require oper- surgeon will tion that the charge Surgeon is in operation, proper to follow medi- ating personnel room of the patient? expectation that the sur- procedures, the cal aspects charge of all the medical “A In neg- protect patient will from the geon patient. personnel, ligence of to the Nurses “Q you issued orders And accepted by the sur- responsibility the care and in connection with proper require geon to they patient, treatment unquali- to exclude medical to follow them? supposed are personnel from the room. fied regard aspects. “A In the medical only jus- relationship is not the Now, opera- “Q connection with an imposition liability on tification for the tion, Surgeon to the issues orders negligence in the surgeon for he operation, does Nurses potential knowledge of such not? to initiate prompt will liability negli- safeguard prevent “A Correct. every possible operating room. follow gence they supposed are “Q And them? “cap- is known as Whether the doctrine Yes, sir. “A label, this ship” byor some other tain to tell the supposed are “Q you And that a would hold writer do, not to and what what to Nurses occurring any negligence liable im- Liability may be do? theater. “Q any disagree- If is conflict or there Correct, regard to the medical “A you and ment in between aspects. else, including Nurses, somebody assisting Bellamy, who even Dr. or jani- certainly wouldn’t want “Q You control, would your judgment you, tor, somebody, or a typist, or a it not? would there, up helping you in the clerk conflict, true, any “A If there is Room, Operating you? would any there is conflict— No, sir. “A words, “Q right. In other Yes. That’s Nurse, Registered don’t “Q You want a charge operation, you are you? to do everybody supposed circulation, yes. “A As far as you what tell them? somebody that has “Q you want And speaking.” right, medically “A That’s and has had train- experience, had [Emphasis added.] ing? request- that he also testified true, requirement. and it is a “A That closing perito- ed a count after Nurses, “Q you know the or did And do With prior closing the skin. neum you know the Nurses before you counts, Ensey, Mrs. respect Worley Hospital that were went technician, operating room testified operation? in this assisting you follows: Yes, sir. “A Now, the hos- you know whether “Q do Ensey, and Mrs. Hol- “Q That is Mrs. required another Regulations pital land? Spar- time that Dr. count after [the ger begun peritone- to close the “A Yes. um]? ability question their “Q you And don’t No, I think did. am “A I don’t do capabilities, or their any way, didn’t, .” . sure you? “A No. Ensey regarding testified Mrs. also
relationship between the nurses and Dr. Sparger: Now, you also told us that “Q you have the doc- “Q instructed to follow you Are Ensey either or Mrs. not ask Mrs. did times? orders at all tors’ count, but that for a one, gave you is that Yes. they voluntarily “A correct? “Q you Do follow them? pro- right, at the time of
“A That’s try my I best. “A Yes. cedure. supposed to follow all “Q you And *7 you? gives didn’t he “Q right. And —but orders All one, give you would voluntarily you “A Yes. one, certainly asked have what to do “Q you And he tells you? wouldn’t not to do? what “A Correct. “A Yes.” super- Holland, Mrs. it true that “Q right. Now isn’t All nurse, testified as registered a visor and surgical controls the your follows: beginning to end from the process got we right. Then when “Q All during operation? got to this we down down—when opera- aspects “A The medical count made at you second that tion. us you have told peritoneum, one,
about, when you counted right surgeon, only not had the bucket, Sparger, you out of came exercised such control on the with Mrs. control but also them floor counted operation. The one of the course of the Finney, neither those doctors to do that? “The state of the facts you majority asserts: directed be such as to make one in some cases may accepted you is do No, “A It sir. or borrowed servant surgeon’s employee that. law, not the that is factual matter of “Q one of those doctors ordered Neither in this case.” With all before us situation do that? you respect, precisely is situation due such just they expect you. know “A You it of case, quoted us in this and the testi- Well, asking you, one “Q I am did either clear. crystal that fact Under mony makes you order to do that? of those doctors standard, during own majority’s “A No. operation the nurses were course “Q right. fact, All In those Orders surgeon’s borrowed servants as a that control Regulations you in that law and the is matter Hospi- your Worley come from
work negligence. for their liable therefore Regulations, they? don’t tal Well, just expect you “A doctors REHEARING FOR ON MOTION sponge count for It is them. have way they expect it.
just the POPE, Justice. rehearing Worley The motion for “Q Now, in Operat- connection purpose Hospital, granted Inc. is Room, ing Surgeon, is the iswho remanding cause to the court of civil this operation, sup- he performing appeals. The cause is remanded so that give you orders posed as to what question whether the court rule on do, and know what not to do? jury’s to find that the nurses were refusal Yes, “A sir. employees of borrowed “Q supposed overwhelming you weight And to follow against great
those orders? evidence, point over jurisdiction. has no See Stanfield court Yes, “A sir. (Tex.1971). O’Boyle, question? “A Without ap- the court Yes, [Emphasis “A sir.” added.] and the cause remanded peals reversed It undisputed had Hospital for further consideration to that court procedures established standard fol- to be the evidence. the state of by lowed the nurses However, that Dr. Sparger it is obvious procedures J., to alter followed YARBROUGH, sitting. case, in this these nurses did in fact requesting
alter the a second
sponge count. testimony
From the of both nurses, it is inconceivable that the
nurses would have refused to obey an order
issued the course of the operation by operating surgeon, Dr. Sparger, on the it conflicted
grounds Hospital.
set forth therefore establish
The facts as a matter nurses, that, as to the
of law