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THOMAS SIMMONS v. ST. CLAIR MEMORIAL HOSPITAL (08/17/84)

filed: August 17, 1984.

THOMAS SIMMONS, ADMINISTRATOR OF THE ESTATE OF RICHARD D. SIMMONS, DECEASED
v.
ST. CLAIR MEMORIAL HOSPITAL, A CORPORATION, APPELLANT



No. 214 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 80-29661.

COUNSEL

John C. Conti, Pittsburgh, for appellant.

Judd F. Crosby, Pittsburgh, for appellee.

Rowley, Wieand and Hester, JJ.

Author: Rowley

[ 332 Pa. Super. Page 448]

St. Clair Memorial Hospital (St. Clair Hospital) appeals from the trial court's order granting appellee's, Thomas Simmons', Administrator of the Estate of Richard Simmons,*fn1 motion for a new trial in this medical malpractice action. Upon a thorough review of the record in this case, we affirm the trial court's order in part, and reverse in part.

Richard D. Simmons (decedent) committed suicide on September 1, 1977, while he was a patient in the psychiatric unit of St. Clair Hospital. Testimony at the trial in this case indicated that decedent used ties from one or two hospital robes to hang himself from the plumbing fixtures in the bathroom adjoining his assigned room. (Notes of Testimony, November 25, 1981, pp. 67-68, 82-83). Decedent had been admitted to the hospital on August 28, 1977 by Alan Wright, M.D. (Dr. Wright) following a reported suicide attempt. Dr. Wright was Chairman of the Department of Psychiatry of St. Clair Hospital from January 1976 through December 1977. There was testimony that Dr. Wright, as Chairman, was responsible for the administration of the department regarding medical staff membership, and problems that developed in the unit with respect to patient care. (Notes of Testimony, November 30, 1981, pp. 19-20). When decedent was admitted to the hospital in August of 1977, he was placed on the "general observation" level of monitoring patients in the psychiatric unit where he was observed every 30 minutes. The unit also utilized a "special or suicidal observation" level where a patient would be monitored at 15 minute intervals, and a "constant observation" level.

Decedent had been admitted to St. Clair Hospital's psychiatric unit five months earlier on March 28, 1977. On that day he had been taken to the hospital's emergency room by his father. Dr. Wright was contacted by hospital personnel since he was the staff psychiatrist "on call" at the time, and it was Dr. Wright who arranged for decedent's admission to the psychiatric unit. It was at that time that decedent's

[ 332 Pa. Super. Page 449]

    parents first came in contact with Dr. Wright. There was limited testimony at trial that decedent's mother was informed by hospital personnel that Dr. Wright was the head of psychiatry at the hospital and that he was "qualified". Decedent's first admission lasted approximately 18 days. During that admission and until the time of his death, decedent was treated by Dr. Wright.

Decedent's father, appellee, brought suit against St. Clair Hospital, alleging that decedent's suicide was the result of the negligence of the hospital's employees, agents and servants in failing to provide adequate care and supervision to prevent decedent from harming himself.*fn2 During the trial before a jury in the Allegheny County Court of Common Pleas, appellee attempted to introduce evidence to prove that Dr. Wright was an actual or ostensible agent of St. Clair Hospital. The trial judge, the Honorable Silvestri Silvestri, allowed testimony as to Dr. Wright's position as Chairman of the Department of Psychiatry. However, decedent's mother's testimony regarding what she was told by a nurse at the hospital about Dr. Wright's qualifications and his relationship with the hospital was excluded upon the hospital's hearsay objection. Appellee also attempted to present expert testimony regarding Dr. Wright's negligence. However, Judge Silvestri sustained the hospital's objection to that testimony, ruling as a matter of law, that there was no evidence that Dr. Wright was the hospital's agent, servant or employee, express or implied. Thereafter, Judge Silvestri directed that there would be no further testimony as to the agency or negligence of Dr. Wright. Subsequently, the jury was instructed that Dr. Wright was not an employee, agent or servant of St. Clair Hospital, that the hospital was not responsible for his actions, and that any error or improper conduct on his part was not that of the hospital. The jury's verdict was in favor of St. Clair Hospital. Among the alleged trial errors asserted by appellee in his motion for a new trial was that the trial judge erred: 1) in ruling, as a matter of law, that

[ 332 Pa. Super. Page 450]

Dr. Wright was not an agent, express or implied, of St. Clair Hospital; and 2) in withdrawing the agency issue from the jury. Argument on the motion was heard by the court en banc,*fn3 and on February 25, 1982, Judge Silvestri filed an Opinion and Order granting a new trial holding that there was sufficient evidence of record to warrant a jury's finding that Dr. Wright was negligent and that it was error to withdraw the question of Dr. Wright's agency from the jury. This appeal followed.

Appellant-hospital maintains that 1) the trial judge properly exercised its discretion in ruling as a matter of law that Dr. Wright was neither an actual or ostensible agent of St. Clair Hospital; 2) the court en banc erred in granting a new trial generally on all issues rather than limiting the new trial solely to the question of Dr. Wright's agency and the propriety of his conduct; and 3) if this court affirms the grant of a new trial, St. Clair Hospital should be granted immunity for ordinary negligence. We will address appellant's contentions seriatim.

I.

In reviewing a trial court's ruling granting a motion for a new trial, the task of an appellate court is to view all of the evidence in order to determine whether the trial court abused its discretion or committed a clear error of law. Crosbie v. Westinghouse Elevator Co., 297 Pa. Super. 304, 443 A.2d 849 (1982); Hayter v. Sileo, 230 Pa. Super. 329, 326 A.2d 462 (1974). The party appealing from the grant of a new trial has the heavy burden of establishing that the trial court committed a palpable abuse of discretion or acted on an erroneous rule of law that, under the circumstances, controlled the outcome of the case and is assigned by the court as the sole reason for granting a new trial. Keefer v. Byers, 398 Pa. 447, 159 A.2d 477 (1960); Mohr v. Plotkin, 186 Pa. Super. 615, 142 A.2d 414 (1958).

[ 332 Pa. Super. Page 451]

In this case the court en banc granted appellee's motion for a new trial on the ground that Judge Silvestri erred in ruling, at an early stage in the trial, that there was no evidence that Dr. Wright was an actual or ostensible agent of St. Clair Hospital. Upon a review of partial notes of testimony and the trial judge's notes, the court en banc determined that the question of Dr. Wright's agency should have been submitted to the jury rather than determined by the trial judge as a matter of law. Appellant argues, however, that the record was devoid of evidence that Dr. Wright was the agent of St. Clair Hospital. We find that there was evidence of record from which the jury may have determined that Dr. Wright was either an actual or ostensible agent of St. Clair Hospital.

General agency principles apply to hospitals and physicians. Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974). In order to establish actual agency, it must be shown that the employer-hospital controlled or had the right to control the physical conduct of the servant-physician in the performance of his work. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Schneider v. Albert Einstein Medical Center, 257 Pa. Super. 348, 390 A.2d 1271 (1978). A physician may be an agent of a hospital if his duties involve general administration of that hospital and giving treatment therein. See Brown v. Moore, 247 F.2d 711, 718 (3rd Cir. 1957). Where the evidence is conflicting, the jury must decide whether the requisite right of control exists to impose vicarious liability on the employer. Thomas v. Hutchinson, 442 Pa. 118, 275 A.2d 23 (1971). In the instant case, there was testimony that Dr. Wright did not maintain an office at St. Clair Hospital and that he did not receive a salary. On the other hand, there was evidence that Dr. Wright was the Chairman of the Department of Psychiatry at the hospital and that he was responsible for problems that developed with patient care. In addition, there were inferences of record indicating that Dr. Wright may have been responsible, to some extent, for the physical facilities in the psychiatric unit of the hospital. Furthermore, we

[ 332 Pa. Super. Page 452]

    note that the trial judge disallowed further testimony as to Dr. Wright's agency prior to the completion of appellee's case. The evidence regarding the actual agency of Dr. Wright may have been tenuous, nonetheless, our review of the record convinces us that there was a factual dispute as to Dr. Wright's relationship with St. Clair Hospital. Consequently, it was the function of the jury to define the precise nature of the relationship between the parties. See Cox v. Caeti, 444 Pa. 143, 279 A.2d 756 (1971).

As a general rule, a hospital is not liable for the negligence of independent contractor physicians, however, an exception to this general rule has been recognized where there is evidence that the physician is an "ostensible" agent of the hospital. Under the ostensible agency theory approved by this Court in Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980), a physician who holds independent contractor status with respect to a hospital may, nonetheless, be an agent of that hospital with respect to a patient. See also ...


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