The opinion of the court was delivered by: MARSH
The trial in this case resulted in verdicts of $ 35,000 in the survival action and $ 25,000 in the wrongful death action. Motions were made to enter judgment for defendants and third-party defendant in accordance with their motions for a directed verdict, on which judgment was reserved; or in the alternative to grant a new trial, or dismiss the action for lack of jurisdiction.
The motions contained reasons which can be classified as follows:
(1) denial of liability for malpractice of a physician in the exercise of professional services;
(2) denial that the owners of a private sanitarium had a non-delegable duty to provide proper medical care and treatment to a patient;
(3) the court lacked jurisdiction;
(4) the evidence was insufficient;
(5) the verdicts were excessive.
It is the opinion of the court that the motion for a directed verdict should have been granted, and the motion for a new trial should be denied.
On September 5, 1949, George R. Brown, the plaintiff's decedent, was admitted to the Sanitarium by Dr. John L. Kelly,
the medical director, as a patient for treatment of an anxiety neurosis. The verdict establishes that on September 13, 1949, he died as a result of malpractice on the part of Dr. Kelly.
The jury could have found that several hours after an electro-shock treatment, Brown was negligently permitted to walk about unaccompanied and fell down a flight of steps, breaking his neck; that the doctor negligently diagnosed his condition as hysteria and treated him accordingly; and that the negligence was the proximate cause of Brown's death.
The undisputed evidence produced on behalf of plaintiff disclosed that the owners employed Dr. Kelly, a licensed medical nurses and nurses aids. The doctor was nurses and nurses aids. The grounds and given a residence on the grounds and partial maintenance; he was paid an annual salary, subject to the usual withholding deductions. The doctor had broad managerial powers over the medical facilities, nursing personnel, diagnoses and treatment of patients. He was permitted to engage in private practice, but the Sanitarium had first call on his time twenty-four hours a day.
Prior to September 5th, Mr. Brown had undergone treatment at two Pittsburgh hospitals in the service of his family doctor. The latter referred him to Mercer Sanitarium, but neither he nor Mr. and Mrs. Brown were acquainted with Dr. Kelly who was its only physician at that time. The Browns met Dr. Kelly in his office at the Sanitarium when he admitted Mr. Brown as a patient. There they signed an admission card giving 'The Mercer Sanitarium permission to administer any form of recognized medical treatment, including Electro-Shock Therapy, to George R. Brown which is deemed advisable by the Medical Staff of said Sanitarium, and does hereby release The Mercer Sanitarium and its employees from any damages on this account.' Mrs. Brown, the plaintiff, also agreed 'to indemnify The Mercer Sanitarium for any loss resulting from injury to or injury or damage caused by George R. Brown while a patient of Dr. J. L. Kelly and the said Sanitarium herein mentioned.'
The plaintiff submitted her case of liability on the theory that a private sanitarium conducted for profit is liable for the torts of its hired physician and nurses in performing medical and professional services for Mr. Brown pursuant to the doctrine of respondeat superior. She relied on one Pennsylvania case decided by a court of common pleas in 1931, Ulbrich v. Boone County Coal Corp., 16 Pa.Dist. & Co. 315, and cases from several foreign jurisdictions.