Timbrell v. Suburban Hospital, Inc.

THE COURT.

The plaintiffs, husband and wife, sued the defendant hospital and the defendant McGovern, a nurse, for injuries received by Mrs. Timbrell while she was a patient in the hospital following a Caesarian operation. Hot compresses and hot water bottles were applied to the body of the patient at a time when she was unconscious. Excessively hot applications resulted in serious third degree burns and later required a skin grafting operation. The jury returned a verdict in favor of the nurse and against the hospital. Prom a judgment on the verdict the hospital appeals.

The appellant propounds the following as the first question involved: “A verdict is expressly in favor of an employee

[70]

but is against the employer. Can it stand when the only possible liability is based on the doctrine of

respondent superior?”

In other words, it is contended that the verdict in favor of Mrs. McGovern necessarily exonerated the hospital. Reliance is placed on the ease of

Bradley

v.

Rosenthal,

154 Cal. 420 [97 Pac. 875, 129 Am. St. Rep. 171], and other cases to like effect.

The complaint charged the defendants specially named, and the agents, servants and employees of the hospital, with negligence in the treatment of the plaintiff patient with the appliances and equipment of the hospital. It was also alleged that the defendant McGovern was an agent and employee of the hospital in the treatment of the patient. In its answer the hospital denied that such relationship existed between itself and its codefendant, and alleged that Mrs. McGovern was a graduate and registered special nurse employed by the plaintiffs and acting in their behalf in the exercise of an independent calling. In her answer Mrs. McGovern denied that in the care of her patient she was guilty of any negligent act. The parties presented their respective claims on the theories advanced by their pleadings.

The defendant hospital corporation is operated for . profit. The plaintiff wife was received as a pay patient early on the morning of October 3d. Her physician advised the hospital staff that her condition was such as to require special nurses. From a list of registered graduate nurses in its possession the hospital obtained the name of a Miss Lane and notified her that the case was at her disposal. She accepted and entered upon her duties as day nurse. Almost immediately thereafter the operation was performed and Miss Lane remained on duty until 7 o’clock P. M. of that day, except during two periods when she was relieved by nurses from the regular hospital staff. The first period was during the luncheon hour and the second about half-past 5 during the dinner hour. During that day hot water bottles were applied to the body of the patient. At 7 P. M. Mrs. McGovern came on duty. Her services were obtained in substantially the same way as Miss Lane’s. On the doctor’s orders Mrs. McGovern applied hot compresses to the kidney area of the patient’s back, but applied no hot water bottle treatments. The attending physician testified that the burns inflicted upon