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TONSIC ET VIR v. WAGNER (03/24/72)

decided: March 24, 1972.


Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1965, No. 1894, in case of Kathryn M. Tonsic and James J. Tonsic v. J. Huber Wagner and Pittsburgh Hospital Association.


Daniel M. Berger, with him Berger and Kapetan, for appellants.

Wilbur McCoy Otto, with him Elmer Beatty, Jr., and Dickie, McCamey & Chilcote, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 220 Pa. Super. Page 469]

Order affirmed.


Order affirmed.

Dissenting Opinion by Hoffman, J.:

This is an appeal from the Order of the lower court denying appellants' motion for new trial following a jury verdict in favor of appellee-defendant, Pittsburgh Hospital Association. The jury found verdicts in favor of appellants in sums totaling $37,000 against a second defendant, Dr. J. Huber Wagner, who was appellant's independently selected physician.

The jury verdicts followed a trial in which appellants claimed that both the Pittsburgh Hospital and Dr. Wagner were liable for damages resulting from the failure to remove a Kelly clamp from appellant wife's abdomen at the conclusion of a colectomy operation. Wife-appellant had been admitted to appellee hospital for the performance of the surgery. A part of the hospital's charge for services was for the use of the operating room. The operation was performed by Dr. Wagner who was assisted by nurses and an intern, who were employees of appellee hospital, and by another surgeon, Dr. Weitzel, Dr. Wagner's associate.

In the course of the operation a number of instruments were used. These instruments, including the Kelly clamp, were the property of the hospital. The instruments were handed to Dr. Wagner by the scrub

[ 220 Pa. Super. Page 470]

    nurse who stood by his side and were then returned by the doctor to this nurse. Neither the scrub nurse, nor the circulating nurse, nor the intern, nor the hospital itself counted the instruments or in any other way kept track of the instruments to determine if any had been allowed to remain in appellant's abdomen. Neither of the nurses nor the intern called Dr. Wagner's attention to the fact that a clamp was still in appellant's abdomen, nor did any of them take any action to remove the clamp.

At the conclusion of the testimony the trial judge, despite appellants' counsel's specific request, refused to permit the jury to determine whether appellee-hospital was vicariously liable for the negligence of its nurses and intern in failing to remove the clamp or cause it to be removed prior to the incision being closed with sutures. Rather the Court held that the doctor, as "captain of the ship", had exclusive control over the persons in the operating room and was therefore solely liable for any negligence committed there; and that the hospital could only be liable for negligence in failing to have required an instrument count as an institutional procedure.*fn1

[ 220 Pa. Super. Page 471]

Following the Court's charge the jury specifically found that appellee was not negligent in failing to have an instrument count and its verdict was against Dr. Wagner alone. Appellant's motion for a new trial as to appellee-hospital was then filed.

In its opinion, the lower court stated that its charge concerning the liability of the hospital was in strict compliance with the doctrine that in an operating room, the surgeon in charge is the "captain of the ship" and that "'[t]he Supreme Court of Pennsylvania has never held that there can be two captains of the ship simultaneously'." Quoting from Mazer v. Lipschutz, 327 F. 2d 42, 52 (3rd Cir. 1964). Further, the lower court added that ". . . could different inferences be fairly drawn from the evidence as to who was the controlling

[ 220 Pa. Super. Page 472]

    master of the borrowed employes at the time of the commission of the negligent act?

"Let us look at the act itself. What was it? It was the insertion, use, and abandoning in the abdomen of the patient of a Kelly clamp. Was that a routine act of hospital employes, as to which their superiors on the hospital staff had control or under any view of the facts could have control? Was it for the anesthetist to look up from her instruments and check to see that the doctor removed all of the clamps? Was it the responsibility of the circulating nurse, whose duty it was to run errands for the doctor, or of the scrub nurse?

"In our opinion any answer other than that it was the doctor's sole responsibility appears to be ludicrous. The act was a medical act, which he, a surgeon, and he alone could perform. Why then should the jury be asked or even permitted to determine whether his act in leaving the clamp in the patient's abdomen was ...

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