Appeal from order and judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1973, No. 841, in case of Stefania Bilonoha and Ivan Bilonoha, her husband v. Dr. Paul Zubritzky and Ohio Valley General Hospital, Original Defendants, and Edward Weck and Company, Inc., Additional Defendant.
Robert S. Grigsby, with him Janet N. Valentine, and Thomson, Rhodes & Grigsby, for appellant.
George M. Weis, with him Weis & Weis, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 233 Pa. Super. Page 138]
Plaintiff instituted a malpractice action against Dr. Zubritzky and Ohio Valley General Hospital, ("Ohio Valley"), alleging that both defendants were liable for damages resulting from the failure to remove a hemostat from the plaintiff's abdomen at the conclusion of an operation. Following a jury trial, the plaintiff was awarded $135,000 against Dr. Zubritzky. Although all obligations to the plaintiff have been satisfied,*fn1 the appellant-surgeon contends that the lower court erroneously restricted the possible negligence of the appellee-hospital, and thus prevented the jury from finding both defendants jointly liable.*fn2
On October 16, 1966, the plaintiff entered Ohio Valley at the direction and under the supervision of her family doctor, Dr. Zubritzky, for the removal of her gall bladder and the repair of a small umbilical hernia. The operation required that the plaintiff's abdominal cavity be opened. Subsequently the plaintiff developed a ventral hernia
[ 233 Pa. Super. Page 139]
where the incision from the 1966 operation had been made. This necessitated a second operation on February 8, 1968, also performed by Dr. Zubritzky and again required the opening of plaintiff's abdominal cavity. In 1972, an x-ray of the plaintiff's abdomen by a different physician revealed the presence of a surgical instrument known as a hemostat, which was surgically removed at St. John's Hospital.
The parties stipulated that the hospital rooms in which the surgical procedures took place were the property of Ohio Valley, and that the operating rooms were under the general care, direction, and control of the hospital. It was further stipulated that the plaintiff was charged by the hospital for the use of its operating rooms. Dr. Zubritzky admitted at trial that the instrument was left in plaintiff's abdomen during the course of one of the operations he performed. Neither Dr. Zubritzky nor his assistant were employees of Ohio Valley.
Ms. Ida Kemp, the operating room nurse, testified at trial that the instruments required by the surgeon were provided by the hospital. The instruments were counted by hospital employees when they were packaged, and were then taken to the operating room as a set. The record reveals that during 1966 and 1968, the appellee-hospital had no standard procedure for counting surgical instruments before they were removed from the operating room, although it was hospital policy to count the sponges to determine that none were left in the patient. Dr. Zubritzky testified that it was impossible for him to make an instrument count personally, but he also stated that he never asked anyone else to do so: "Q. And when you were finished with that set of instruments what would be done with the entire set? A. They are all gathered together, put on the mobile stand and taken out of the room as a set. Q. Are they counted in your presence? A. No, sir. Q. In 1966 and 1968 did you instruct the nurses to count the instruments? A. No, sir. Q. Did the
[ 233 Pa. Super. Page 140]
hospital instruct you, as a physician using their facilities, to count the instruments before the tray left the operating room? A. No, sir. Q. At any time did you ever have occasion to make it your business to count the instruments? A. No, sir. Q. You did, however, count the sponges? A. The sponge count is reported to me as correct or incorrect as it may be. Q. Why was it, Doctor, that you did not instruct the persons under your supervision to conduct a count of the instruments? A. I assumed that I would be informed in case there would be any abnormal count. . . . Q. Well, who was ...