Appeals, Nos. 36 and 37, March T., 1956, from judgments of Court of Common Pleas of Allegheny County, April T., 1952, No. 1651, in case of J. Hogan Benedict, a minor, et al., v. Dr. Frank R. Bondi, Dr. Fred Battaglia, Jean Streigel Waddell, Irma Bieda and McKeesport Hospital. Judgment for defendant hospital affirmed; judgment for defendant Bondi reversed.
Bresci R.P. Leonard, with him Paul K. McCormick and Van der Voort, Royston, Robb & Leonard, for plaintiffs, appellants.
William A. Challener, Jr., for defendant doctor, appellee.
Bruce R. Martin, David Roth, Dalzell, Pringle, Bredin & Martin and Kaplan, Finkel & Roth, for defendant hospital, appellee.
Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This case is ruled by the principles enunciated in McConnell v. Williams, 361 Pa. 355, 65 A.2d 243.
According to the testimony presented on behalf of plaintiffs it appears that the minor plaintiff, J. Hogan Benedict, a three-year old child, became seriously ill one evening and was rushed the next day to the McKeesport Hospital where an emergency operation was performed by defendant Dr. Frank R. Bondi. Mrs. Jean Streigel Waddell, also a defendant, was then a student nurse at the hospital working in and about the operating rooms. She testified that she did not remember the Benedict boy being brought into the room; that some unidentified person requested her to get two hot water bottles; that she did this and upon her return to the operating room was told to fill them; that she filled them out of the hot water faucet in a small instrument scrubbing room off the operating room; that she did not remember whether she made any test whatever of the temperature of the water; that when she came back into the operating room she covered the bottles, not with flannel covers as was the proper practice, but with muslin pillow cases; that when she was about to apply them to the patient, who was then lying prone on the operating table and was partly under the anesthetic she was told not to do so by Dr. Bondi who was standing about two feet from the operating table; that he told her to give the bottles to Mrs. Irma
Bieda, another of the defendants, to put on the child. Mrs. Bieda, who was a graduate nurse and was then on general duty in the operating room, testified that Dr. Bondi told her to apply the bottles, so she placed them on the outer sides of the child's feet; that as soon as the anesthetist said that the child was completely under - which was about three minutes after the hot water bottles had been placed - Dr. Bondi began the actual incision; that in and out of the operating room were several nurses and that an assistant to the surgeon and a number of spectators were also present. It was testified that after the operation was over (which proved ultimately to be successful) the child was taken to his room in the hospital whereupon the floor nurse discovered that his feet were badly burned; a later examination disclosed that he had suffered third degree burns with destruction of the subcutaneous tissue down to the bone. There was testimony that the water in the bottles should not have been of a temperature greater than 115 or 120 degrees, but that, in order to have caused the injury it produced, it must have been at the 212 degree boiling point.
To recover for the child's injuries his father as guardian and also in his own right, brought suit against Dr. Bondi, Dr. Fred Battaglia,*fn1 Mrs. Waddell, Mrs. Bieda, and McKeesport Hospital. The court entered nonsuits as to all defendants, but the court en banc subsequently removed the nonsuits as to the nurses. Plaintiffs appeal from ...