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TONSIC ET VIR v. WAGNER (12/06/74)

decided: December 6, 1974.

TONSIC ET VIR, APPELLANTS,
v.
WAGNER



Appeal from order of Superior Court, April T., 1971, No. 336, affirming 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, her husband v. J. Huber Wagner and Pittsburgh Hospital Association, a non-profit corporation.

COUNSEL

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

Wilbur McCoy Otto, with him Michael W. Burns, Herbert Bennett Conner, and Dickie, McCamey & Chilcote, for appellee.

Jones, C. J., Eagen, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Justice O'Brien took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Manderino

[ 458 Pa. Page 248]

Appellants, Kathryn M. Tonsic and her husband, James J. Tonsic, filed a negligence action against the appellee, Pittsburgh Hospital Association, and against Dr. J. Huber Wagner, claiming damages for injuries sustained by the appellant wife during an operation in the appellee's hospital. A jury returned a verdict of $37,000 against Dr. Wagner, but found in favor of the appellee hospital. Appellants moved for a new trial on their claim against the appellee hospital. The motion was denied, and on appeal the Superior Court affirmed. Tonsic v. Wagner and Pittsburgh Hospital Association, 220 Pa. Superior Ct. 468, 289 A.2d 138 (1972) (Judge Hoffman filed a dissenting opinion). We granted appellant's petition for allowance of appeal limited to the issue of whether the hospital and the operating surgeon can both be held liable for the negligence of hospital personnel during an operation.

The dissenting opinion of Judge Hoffman in the Superior Court provides the following accurate summary of the case:

"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

[ 458 Pa. Page 249]

    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 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. . . ."

In its charge, the trial court, at several points, instructed the jury that the hospital could not be liable for the negligence of hospital employees during the ...


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