dissenting.
While I agree that the damages awarded in this case were not excessive, I respectfully dissent from the majority on the question of liability. There was ample evidence presented in this case to support a finding that the appellant hospital acted negligently toward Mrs. Anthony. I believe, however, this negligence was not a substantial factor in causing her tragic death because of the intervening negligence of Dr. Hawkins.
There was no evidence of any negligence by the hospital beyond that which occurred in the early morning of September 6 when it permitted Mrs. Anthony to be discharged without an examination by a medical doctor. According to the testimony of the appellee’s expert, such an examination would have led inevitably to the discovery that Mrs. Anthony needed abdominal surgery. He believed that if her appendix had been removed in due course and antibiotic therapy begun, she “would be alive today.” He also stated that until her infected appendix was removed, her condition would only have continued to deteriorate. In his opinion, if her appendix had been removed by 11:59 p.m. on September 7, her recovery would have been assured. After that time her chances for recovery lessened as time passed. This expert believed that a qualified obstetrician/gynecologist, as was Dr. Hawkins, ought to have been able to ascertain within three hours that Mrs. Anthony needed surgery.
Mrs. Anthony returned to the hospital at approximately 1:00 p.m. on September 6 and from that time on was under the care of Dr. Hawkins, who should have been expected to realize the need for surgery by around 4:00 p.m. on that day according to the expert. It is undisputed that the hospital did not act negligently after Mrs. Anthony’s return. There is no testimony, for example, indicating that the hospital knew or should have known that Dr. Hawkins was acting negligently in the care being given to Mrs. Anthony after her return. Thus, from the time of Mrs. Anthony’s return to the hospital until well after it was too late to save her, the hospital had no reason or right to interfere with Dr. Hawkins’s control of the treatment being given to her patient.
Inasmuch as Mrs. Anthony’s care was under the exclusive control of Dr. Hawkins after her return, and from that time there were still at least 32 hours in which to make a decision which should take only about three hours to make if Dr. Hawkins had acted properly, it seems to me the negligence of Dr. Hawkins superseded that of the hospital and was the legal cause of Mrs. Anthony’s death. This case appears to me to fall squarely within the rule enunciated in § 452(2) of the Restatement (Second) of Torts (1965).