I cannot agree with the opinion of my associate that the externe Young was free from negligence in the case at bar. A reading of the record reveals that, after Miss Messina was removed from the hospital room, her condition was not what it should have been, and that her physician, Dr. Graffagnino, ordered the administration to her of hypodermatoclyses every eight hours. The administration of this treatment is said, by Dr. Kahle, who testified for the plaintiff, to be a therapeutic measure, which means that it is the application of a particular remedy for one who is ill. Dr. Graffagnino testified that a hypodermatoclysis is nothing more than the use of either normal salt water and saline solution of plain tap water or occasionally glucose administered under the skin to a patient who is not able to retain food either by way of mouth or through the rectum. The purpose of the treatment is to build up the patient's resistance.
Miss Messina testified that at the time she was administered the hypodermatoclysis by Dr. Young, she complained of the fact that the fluid was burning her. Dr. Young and Mrs. Chassanoil, an attending nurse, corroborate her statement, and Dr. Young says that he immediately tested the fluid and found that it was not too hot. It is singular, however, that, although the plaintiff was administered some seven or eight treatments, the only one which seemed to have a deleterious effect was the hypodermatoclysis performed by Dr. Young.
I do not find that the testimony of Dr. Graffagnino is helpful to the defendants. His evidence shows that he is of the opinion that the injuries to plaintiff resulting from the hypodermatoclysis are due, either because the fluid was too hot, or because the plaintiff's vitality was so low that the injection of the fluid did not penetrate the tissue but formed a necrosis or sloughing off of tissue at the point of insertion. He does not attempt to say that the fluid given was not too warm because he does not know whether such was the case.
The defense, as I understand it, is that the fluid was not too hot, but against the statement of Dr. Young that he tested the fluid and found it to be all right, is the uncontradicted statement of Miss Messina, corroborated by the attending nurse and Dr. Young, that when the fluid was injected she complained that it was burning her, and *Page 808 also the unexplained physical fact that of the six or seven treatments administered to her only the one which was given by Dr. Young had the effect of producing her injuries. Accepting the opinion of Dr. Graffagnino that the injuries which plaintiff has suffered may be caused by either excessive heat of the fluid or a necrosis of tissue, it must also be remembered that this physician testified that Miss Messina was given a hypodermatoclysis immediately after the operation which produced no ill effects. He further testified that her vitality, at the time the hypodermatoclysis was administered by Dr. Young, was somewhat better. Therefore, it seems to me, if Miss Messina's vitality was better at the time the hypodermatoclysis was administered by Dr. Young than it was immediately after the operation when the first of these treatments was given, the chances of necrosis, as a result of the treatment, would be decidedly lessened.
However, while I disagree with the finding of my associate on the question regarding the negligence of Dr. Young, I am of the opinion that the correct result is reached in dismissing the plaintiff's suit. It appears to me that the two most important questions in this case, assuming that Dr. Young was negligent, are: First, whether he was the employee of the hospital in so far as the administration of the hypodermatoclysis is concerned, and, second, if he was the employee of the hospital, does the doctrine of respondeat superior apply?
On the first question, regarding the employment of Dr. Young, I am of the opinion that he was not the employee of the hospital for the performance of the treatment which is the subject of this complaint.
This suit ex delicto is brought against the French Hospital for injuries received by the plaintiff growing out of an alleged breach of contract. The plaintiff, being ill, entered into a verbal contract with the hospital whereby the hospital agreed, for a consideration, to supply her with a room, meals, and nursing facilities during her stay there. I do not believe it was the intention of the parties, at the time the contract was entered into, that the hospital should provide therapeutic measures. The extent of its agreement was to supply the plaintiff with the ordinary nursing facilities of the institution, and it warranted that its employees and agents were qualified to perform such nursing as was necessary to adequately care for the plaintiff during her stay.
Miss Messina had employed Dr. Graffagnino to perform an operation upon her. After the operation, her vitality was so low that the doctor found that the administration of hypodermatoclyses was imperative and necessary for her well being. He instructed and ordered Dr. Young to give her the hypodermatoclysis, which was administered by Dr. Young some eight or ten hours after the operation. While Dr. Young was in the regular employ of the hospital as an externe, he became the agent and employee of Dr. Graffagnino and not of the hospital for the purpose of administering this particular treatment.
My opinion in this respect is affirmed and fortified by the Oklahoma Supreme Court in the case of Aderhold et al. v. Bertha E. Bishop, 94 Okl. 203, 221 P. 752, 754, and also reported in 60 A.L.R. 137.
In that case, the plaintiff had engaged the services of a firm of surgeons to operate on her for goiter. The operation was performed at the El Reno Sanitarium, which was managed and controlled by the defendants in suit. It appears that, while the operation was being performed, her feet and ankles were severely burned as result of the negligence of the attendant nurse in the operating room, who allowed hot water to drop thereon while assisting the physicians in the performance of the operation. It was admitted by the plaintiff that the surgeons themselves were not guilty of any negligence. She sued the two doctors who performed the operation, because of the negligence of the nurse, and the court held that, while the nurse was a regular employee of the El Reno Sanitarium, still, for the purpose of the operation, she became the agent and servant of the doctors performing the surgery and that while she was under their employ the physicians became liable for any fault or negligence on her part. The court said:
"In the instant case the plaintiff went to the El Reno Sanitarium for an operation. The operating surgeons, the defendants in this case, went there to perform the operation. In the performance of the operation, the hospital permitted and the surgeons consented to use its general employees to assist thesurgeons in the performance of the operation. While the head nurse and her assistants were the general employees of the El Reno Sanitarium, they were nevertheless, during the time required for the actual operation, under the direction and supervision of the operating surgeons, and were the servants of the operating *Page 809 surgeons in respect to such services as were rendered by them inthe performance of the operation, and for any negligence on thepart of such employees in the performance of such services theoperating surgeons are liable.
"An examination of the authorities discloses to our satisfaction that the true test of the existence of the relation of master and servant in a given case does not depend upon whether the servant was in the general employ of the master, butupon whether the master actually exercises supervision andcontrol over the servant during the time he uses such servant. Ageneral master may loan the service of his employee to anotherfor a specified purpose and for a short period of time, in whichcase the individual to whom such general servants are let is themaster, and responsible for their neligent acts so long as heexercises actual supervision over them.
"In Wolfe v. Mosler Safe Co., 139 App. Div. 848,124 N.Y.S. 541, it is said that a third person to whom servants of a general master have been temporarily loaned, with their consent, is for the time being their master, he having for the time being control of the servant. Chicago, R. I. P. R. Co. v. Stepp, 90 C.C.A. 431, 164 F. 785, 22 L.R.A. (N.S.) 350; Koenitsky v. Matthews, 64 Misc. 167, 118 N.Y.S. 366; Wvckoff v. Wunder, 107 Minn. 119, 119 N.W. 655; Messmer v. Bell C. Co., 133 Ky. 19, 117 S.W. 346, 19 Ann.Cas. 1.
"In Western U. Teleg. Co. v. Rust, 55 Tex.Civ.App. 359,120 S.W. 249, it is said: `Where a servant has two masters, a general and a special one, the latter, if having the power of directionor control, is the one responsible for the servant's negligence.'
"In Brady v. Chicago G. W. R. Co., 52 C.C.A. 48, 114 F. 100, 57 L.R.A. 712 [11 Am.Neg.Rep. 546], it is said: `The power of control is the test of liability, under the maxim respondeat superior. If the master cannot command the alleged servant, thenthe acts of the latter are not his, and he is not responsible forthem. If the principal cannot control and direct the allegedagent, then he is not his agent.'
"`The liability of masters for the acts or omission of their servants weighs heavily on them; but the hardship would be at least equal if the master were not liable; and it would be attended with injustice too. If the master be morally innocent, so must the injured party be also — and, if two innocent persons, surely he should suffer through whom it is by the employment of another the mischief has been occasioned.' Dansey v. Richardson, 3 El. Bl. 144-161 [118 Eng.Reprint, 1095]." (Italics ours.)
I have quoted at length from this decision because I consider it to be a profound and able analysis of the problem to be solved in the case at bar.
The same principle of law announced in the Aderhold Case, supra, is ably discussed by Judge Claiborne as organ of this court in the case of Jordan v. Touro Infirmary, 123 So. 726. In that case, we found that the nurse, who was guilty of negligence resulting in injuries to the plaintiff, was the agent of the doctor and not of the Touro Infirmary.
My associate seeks to distinguish the Jordan Case from the case at bar on the ground that the injuries which were inflicted in this case did not occur in the operating room and that Dr. Graffagnino, who ordered the treatment to be administered, was not present at the time it was given and had nothing whatever to do with the execution of his own order. I fail to follow this line of reasoning, as I can see no distinction between the supervision and control of the employees of the doctor where the orders are given in the operating room, or his supervision and control of them where he orders the treatment to be performed after the operation and out of his presence. The fact is that he gives the orders, and, in so doing, he thereby constitutes the party obeying his instructions as his agent and employee for their execution. A distinction should be drawn between a case where the instructions of the attending physician relate to the performance of usual nursing measures, which the hospital, by its contract with the patient, has contracted to provide, and a case, such as this one, where the physician has ordered the administration of a particular medical measure, to be performed by one who has the skill and training to execute the order. In the former case the service to be rendered comes within the purview of the hospital's contract, while in the latter it does not. In one case the performance of strictly nursing services is rendered, while in the other case the execution of a medical remedy is paramount.
It seems certain that the duty of a surgeon to his patient does not end in the operating room. In my opinion, it is also his duty to administer such treatment as *Page 810 is necessary until such time as it is ascertained that the patient is out of danger. For, if it were otherwise, doctors could shirk all responsibility immediately after the operation was performed and place upon the hospital the onus of treating the patient until full recovery.
The evidence in this case shows that, because of Miss Messina's weakened condition, therapeutic measures became advisable and necessary after she was taken from the operating room. In accordance with his duty to his patient, Dr. Graffagnino ordered hypodermatoclyses to be administered to her at regular intervals. He appointed and constituted Dr. Young, whom he believed was qualified and competent, to execute his orders. Under the decision in the Jordan Case, Dr. Young became the agent of Dr. Graffagnino and was accountable to Dr. Graffagnino and not to the defendant hospital for the manner and means used by him in the performance of Dr. Graffagnino's instructions.
Inasmuch as the defendant hospital was not the master of Dr. Young at the time he negligently injured the patient, her suit should be dismissed.
Even assuming, for the sake of discussion, that Dr. Young was the employee of the hospital to perform the hypodermatoclysis upon the plaintiff, I am of the opinion that the relationship of master and servant does not exist in this case for the reasons fully set forth by Judge Janvier in his concurring opinion herein.
I confess that a review of authorities with regard to the liability of hospitals for the negligence of their nurses and employees is not very helpful. This is because of the fact that in most of those cases the question of liability vel non has turned on whether or not the defendant hospital is a charitable institution, which is, of course, eliminated in this case under our decision in Rome v. London Lancashire Indemnity Co., 169 So. 132.
On the other hand, a reading of the Jordan Case reveals that we held there that the doctrine of respondeat superior is without application to a nurse employed by a hospital. The first defense, invoked by the Touro Infirmary in that case, was "that the nurse was not the servant of the defendant within the meaning of article 2320, C.C." In deciding this question in favor of the defendant, Judge Claiborne discusses the evidence with reference to the nurse's previous ability, training, and skill, and reviews all pertinent authorities under the civil and common law. He further distinguishes the case from that of Stanley v. Schumpert,117 La. 255, 41 So. 565, 6 L.R.A. (N.S.) 306, 116 Am.St.Rep. 202, 8 Ann.Cas. 1044 (relied upon by the plaintiff in the case at bar), with the observation that: "In that case there was no evidence that the nurse was competent or graduated, nor that the defendant did not have the direction and control of the nurse at the time she inflicted the injury."
Here, it would require a fictitious stretch of reasoning to hold that the hospital had "supervision and control" over the skill possessed by Dr. Young in the performance of a medical treatment. For his errors of judgment, the hospital is not responsible, unless it did not use due care in selecting him as its employee.
I am authorized to say that Judge JANVIER concurs in my view that Dr. Young was the agent of Dr. Graffagnino in the case at bar and not the agent of the hospital.
For these reasons, I concur in the decree.