Holger v. Irish

851 P.2d 1122, 316 Or. 402, 1993 Ore. LEXIS 69

• Court: Oregon Supreme Court
• Decided: May 27, 1993
• Docket: CC A8910-05814; CA A67769; SC S39414
• Status: Published

Opinions

GRABER, J.

This is an action for medical malpractice. Defendant is a surgeon who operated on plaintiffs decedent for colon cancer. During the operation, defendant placed pieces of absorbent gauze, known as laparotomy sponges, in decedent’s abdomen; at the end of the surgery, he removed sponges. Two nurses assisting defendant counted the removed sponges and informed him that all the sponges were accounted for. Two years later, a sponge was discovered in decedent’s abdomen. It was surgically removed. Nine months later, decedent, who was then 92 years old, died.

Plaintiff, as personal representative of decedent’s estate, sued defendant and the hospital employing the nurses who assisted defendant during decedent’s surgery. Before trial, plaintiff settled with the hospital. After settling with the hospital, plaintiff amended the complaint to delete all references to the hospital. The second amended complaint alleged only that defendant was negligent. As material here, the amended complaint alleged that defendant “fail[ed] to check and determine that all sponges * * * were removed.” The amended complaint did not allege that the nurses were negligent or that they were defendant’s agents or employees.

At trial, it was not disputed that the nurses who assisted defendant informed him that all the sponges had been removed from the abdomen of plaintiffs decedent. Plaintiff submitted proposed jury instructions on imputed negligence and respondeat superior. The trial court did not give those instructions.

Plaintiff also moved, before trial, to exclude any mention of her settlement with the hospital. The trial court denied that motion and informed the jury of the settlement to explain why the hospital was not a party at trial. The court later instructed the jury not to take the settlement into account in deciding defendant’s liability or in calculating plaintiffs damages, if any. The jury returned a verdict in favor of defendant.

Plaintiff appealed, arguing, among other things, that the trial court erred in refusing to give plaintiffs requested jury instructions on imputed negligence and respondeat superior and that it erred in informing the jury that the hospital had settled with plaintiff. The Court of Appeals reversed and remanded the case for a new trial, holding that “[n]o specific pleading of the vicarious liability theory was necessary” and that the trial court erred in refusing to submit that theory to the jury. Holger v. Irish, 113 Or App 290, 292, 834 P2d 1028 (1992). The court also held that the trial court erred in informing the jury of plaintiffs settlement with the hospital. Id. at 298-99. We affirm on other grounds the decision of the Court of Appeals, reverse the judgment of the circuit court, and remand the case to the circuit court for further proceedings.

In considering whether the trial court erred in refusing to give plaintiffs requested jury instructions on imputed negligence and respondeat superior, we first consider whether plaintiff was required specifically to plead a theory of recovery based on vicarious liability. Before the adoption of the Oregon Rules of Civil Procedure, this court held that a pleading similar to the one in this case was sufficient to support a claim for relief based on a theory of vicarious liability.

“The defendant also complains of an instruction given by the court which would authorize the jury to find the defendant responsible for the negligence of the nurse whom he left in charge of the case. It is argued * * * that the complaint does not allege negligence on the part of the nurse * * *. We think * * * that when it is sought to hold a defendant for a wrong committed by his servant, it is sufficient to allege that the defendant committed the act without mentioning the servant.” Olson v. McAtee, 181 Or 503, 520, 182 P2d 979 (1947).

See also Kuhns v. Standard Oil Co., 257 Or 482, 509, 478 P2d 396 (1971) (where the plaintiff alleged that the defendant operated a truck terminal and was negligent in certain particulars, the plaintiff was allowed to prove direct operation of the terminal and negligence by the defendant or operation of the terminal by an agent and negligence of that agent); Cascade Warehouse v. Dyer, 256 Or 377, 379, 471 P2d 775, 474 P2d 325 (1970), quoting Masters v. Walker, 89 Or 526, 529, 174 P 1164 (1918) (“It is said to be good pleading to allege that ‘an act was done by the defendant, and it is competent to prove that averment by showing that the act was really done by an agent of the defendant thereunto duly authorized, or that it was afterward ratified by the defendant.’ ”). But see Downs v. Nat. Share Corp., 152 Or 546, 551-53, 55 P2d 27 (1936) (“It will be observed that an act done through an agent may be averred in any one of three ways: (1) it may be described as the act of a principal without mention of the agency; (2) it may be described as the act of the agent performed on behalf of the principal; or (3) it may be described as the act of the principal performed through the instrumentality of an agent.”).

The Oregon Rules of Civil Procedure, including ORCP 18A, were promulgated in 1978 and took effect on January 1, 1980. ORCP 18A provides:

“A pleading which asserts a claim for relief * * * shall contain:

“A. A plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition.”

Interpreting ORCP 18A, Davis v. Tyee Industries, Inc., 295 Or 467, 479, 668 P2d 1186 (1983), held:

“[Wlhatever the theory of recovery, facts must be alleged which, if proved, will establish the right to recover. It is no longer permissible to veil the facts or theory behind a nonfactual pleading for money had and received and thereafter prove any state of facts which, historically, could support recovery on a theory of money had and received.”

The court noted that the comment to ORCP 18A states:

“The Council [on Court Procedures] decided to retain fact pleading as opposed to notice pleading, i.e., to retain a requirement of fairly specific description of facts as opposed to adopting the less specific fact description allowable in federal courts. * * * The necessity of pleading ultimate facts retains the present Oregon requirements of pleading facts at a fairly specific level.” Id. at 476 (internal quotation omitted; citation omitted).

This court also has noted “that under the Rules of Civil Procedure ‘claim for relief has replaced ‘cause of action.’ ” State ex rel Gattman v. Abraham, 302 Or 301, 310 n 6, 729 P2d 560 (1986). The term “claim for relief’is narrower than the term “cause of action.” Id. at 310-11. The “Oregon rules require a pleader to state ‘the ultimate facts constituting a claim for relief,’ ORCP 18 A., rather than pleading a form of action.” Nearing v. Weaver, 295 Or 702, 708 n 5, 670 P2d 137 (1983).

In Moore v. Willis, 307 Or 254, 767 P2d 62 (1988), this court held, in regard to pleading a defendant’s negligence, that the Oregon Rules of Civil Procedure require more specificity than the principles previously in effect. The court stated:

“Before the adoption of the Oregon Rules of Civil Procedure, this court had held that a plaintiff need only plead that the defendant acted negligently. Pleading ‘negligence’ adequately stated the foreseeability element. See, e.g., McEvoy v. Helikson, 277 Or 781, 787, 562 P2d 540 (1977). But see Reynolds v. Nichols, 276 Or 597, 600-01,556 P2d 102 (1976) (holding that a complaint alleging that the defendants were negligent did not adequately allege foreseeability). Recent decisions, however, consistently have required more than mere allegations of ‘negligence.’ See Solberg v. Johnson, [306 Or 484, 490, 760 P2d 867 (1988)]; Fuhrer v. Gearhart by the Sea, Inc., 306 Or 434, 441-42, 760 P2d 874 (1988); Kimbler v. Stillwell, 303 Or 23, 28-29, 734 P2d 1344 (1987). Fuhrer v. Gearhart by the Sea, Inc., supra, upheld the dismissal of a complaint alleging that a resort owner negligently failed to warn guests of the dangers of the surf adjacent to the resort. The court explained:

“ ‘[T]here is no allegation in the complaint that Gearhart knew or should have known of the dangerous condition of the ocean surf. Without knowledge of a dangerous condition or reason to know of the condition, Gearhart could not have foreseen an unreasonable risk of harm. If plaintiff were able to prove all the facts alleged in the complaint, plaintiff would still not have proved one element necessary to recovery, the foreseeability to defendant of an unreasonable risk of harm to persons in plaintiffs position.’ 306 Or at 441.

“See also 306 Or at 442-43 (Jones, J., specially concurring).

“We hold that, under the fact pleading requirement of ORCP 18A, an allegation of‘negligence,’ without more, does not adequately plead the foreseeability element of the tort.” 307 Or at 258-59 (footnote omitted).

In other words, under ORCP 18A, a pleader is required to state in what way the defendant allegedly was negligent.

In Lancaster v. Royal Ins. Co. of America, 302 Or 62, 726 P2d 371 (1986), the plaintiff was injured in an automobile accident. He sued the other driver (Martin), Martin’s employer, and the employer’s insurer. The plaintiff settled with Martin and agreed not to execute “personally” on a judgment against him, in return for Martin’s assignment of rights, if any, against the employer and the insurer. Martin executed a stipulated judgment in favor of the plaintiff. The plaintiff then sued the insurer for the amount of the stipulated judgment, relying on his rights as Martin’s assignee. The plaintiff also argued that he had a right to recover under a statute that prevented an insurer from being relieved of obligations through bankruptcy or insolvency of the insured. This court agreed with the defendant’s argument that the plaintiff could not rely on the statute, because he had not pleaded all facts necessary to bring him within its protection:

“[The statute] plainly indicates that execution of final judgment must be returned unsatisfied by reason of bankruptcy, insolvency or any other cause, or judgment must not be satisfied within 30 days after it is rendered in order for the statutory right to apply. Plaintiff failed to plead either element; therefore, he failed to plead ultimate facts sufficient to constitute a claim for relief under ORCP 18A.” 302 Or at 70.

The facts that the claims were related and that they included many of the same elements were not enough to satisfy ORCP 18A.

As will be discussed more fully below, for plaintiff to recover from defendant on a theory of vicarious liability here, plaintiff had to prove that the operating room nurses were negligent and that the nurses were defendant’s employees or agents or that there were other facts that would establish defendant’s supervision and control over the nurses. Those facts need not be proved to establish defendant’s direct liability. In the amended complaint, plaintiff alleged only that defendant was negligent because he, personally, failed “to check and determine that all sponges * * * were removed.” That fact would support direct, but not vicarious, liability. Therefore, plaintiff did not state the “ultimate facts constituting a claim” of vicarious liability against defendant. That was required by ORCP 18A, as interpreted in Davis v. Tyee Industries, Inc., supra; Moore v. Willis, supra; and Lancaster v. Royal Ins. Co. of America, supra. The Court of Appeals erred in holding to the contrary.

Plaintiff argues in the alternative that, because defendant introduced evidence of his relationship to the nurses during the operation, ORCP 23B entitled plaintiff to submit the theory of vicarious liability to the jury. ORCP 23B provides in part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”

See also Whinston v. Kaiser Foundation Hospital, 309 Or 350, 355, 788 P2d 428 (1990) (a pleading is “automatically” amended whenever an issue not raised by the pleading is tried by consent of the parties).

Even assuming that the issue of defendant’s vicarious liability for the negligence of the operating room nurses was tried by express or implied consent of the parties, however, the trial court did not err in refusing to give plaintiffs requested instructions¹ because, as the following discussion will show, there was no evidence to support the giving of those instructions. It is not error for a trial court to refuse to give an instruction that is not supported by evidence. See ORCP 59A (party may submit proposed instructions on questions of law developed by the evidence).²

Plaintiff contends that defendant was vicariously liable as a matter of law for the negligence of operating room nurses who assisted him during surgery. Thus, plaintiff argues, no evidence of agency was required to support the requested instructions; as “captain of the ship,” defendant was responsible as a matter of law for the nurses’ negligence. We disagree.

As noted in Simpson v. Sisters of Charity of Providence, 284 Or 547, 553, 588 P2d 4 (1978), Oregon has not adopted the “captain of the ship” rule. In that case, the plaintiff brought a claim for negligence against the hospital where he was treated for a spinal injury, alleging that he became paralyzed partly as a result of the failure of the hospital’s x-ray technicians to take adequate x-rays of his original injury. The hospital argued that, under the “captain of the ship” rule,

“[hospital] support personnel are obligated to carry out the orders of doctors, and so long as the order is carried out in a competent manner, hospital personnel are not negligent.” Ibid, (internal quotation and citations omitted).

This court concluded that the question whether the hospital’s x-ray technicians were under the supervision and control of the treating doctors when performing the task of taking x-rays of the plaintiff was a question of fact for the jury. The evidence included testimony that the doctors did not tell the technicians “how many milliamps to deliver” or “whether they should use a grid.” Id. at 552. “[T]he preponderance of evidence is to the effect that the hospital’s employees, the technicians, were not under doctors’ orders as to technique in taking and developing x-ray films.” Id. at 553. This court held that the evidence was “sufficient to allow the jury to find that the x-ray technicians were not under the supervision and control of the treating physicians when performing their duty of taking and developing x-ray films of plaintiffs [spine].” Ibid.

Nor does the doctrine of respondeat superior necessarily apply in the context of a surgeon’s alleged vicarious liability for the negligence of hospital personnel. In May v. Broun, 261 Or 28, 492 P2d 776 (1972), the plaintiff sought damages from the defendants, a surgeon and another doctor who assisted him, for burns suffered as the result of an apparent malfunction of operating-room equipment owned and maintained by the hospital and set up for the plaintiffs operation by a circulating nurse. This court wrote:

“Respondeat superior is usually determined by the right of the claimed principal to control the negligent actor. There is no doubt that a surgeon has the right to control the employees of the hospital, including the nurse, in the preparation of the hospital room and of the patient for surgery, as well as in the carrying out of their functions during surgery. However, in a situation where the nurse is in the general employ of the hospital and is performing services for the hospital as well as for the surgeon, courts do not now usually hold that [the nurse] changes from a general employee of the hospital to a special employee of the surgeon until [the nurse] is under the surgeon’s direct supervision or control. * * *

“Changes have also been occurring in the confines of operating rooms. Surgeons are operating more and more in a highly mechanized environment wholly created by hospitals. Much highly technical equipment, now considered necessary, is furnished by the hospital and operated by personnel which [sic] the hospital hires and trains. As a result, in most instances, a surgeon cannot actually have direct supervision or control over such equipment and the persons who operate it even when he is present, if [the surgeon] is going to give the concentration and attention to the surgery which [the] patient has a right to expect.

“We hold that when technical equipment and the personnel to operate it are furnished by the hospital to the surgeon and injury is caused by malfunctioning equipment or negligent operators, and it is not shown that the surgeon was personally negligent or that the circumstances were such that it was practical for [the surgeon] to exercise direct supervision or control over the machine or its operation, respondeat superior liability does not attach to the surgeon. There is no evidence in this case that indicates [that the] defendants had the ability, consistent with their duty to their patient, to supervise or control directly the machine or its operation.” 261 Or at 36-40 (citation omitted).

Piehl v. The Dalles General Hospital, 280 Or 613, 571 P2d 149 (1977), also is pertinent. In that case, the surgeon left a laparotomy sponge in the plaintiffs abdomen during surgery. The trial of the case resulted in a jury verdict in favor of the plaintiff and against the defendants (the surgeon and the hospital) and in a directed verdict requiring the hospital to indemnify the surgeon for any loss that he might suffer from the judgment. On the hospital’s appeal, this court considered the indemnity right between the defendants. The court concluded that, if the surgeon was personally negligent, as distinct from being vicariously liable for the nurses’ negligence, then the surgeon was not entitled to indemnity. 280 Or at 615. The court reviewed the facts in detail and concluded that “there was evidence from which the jury could have found the doctor was actively negligent in not discovering and removing” the sponge; therefore, the trial court erred in directing a verdict in favor of the surgeon on the issue of indemnity. Id. at 619. The court then considered the hospital’s contention that, during the surgery, the nurses were the “loaned servants of the surgeon” for whose negligence the surgeon was vicariously responsible. Id. at 620. This court held that the nurses remained servants of the hospital in carrying out the work for which it was being paid by the plaintiff, even if the nurses also were “loaned servants of the surgeon for some purposes.” Ibid.

In summary, the question whether a surgeon is vicariously liable for negligence of other operating room personnel is a question of fact. Here, there was no evidence that the nurses were defendant’s employees or that defendant had supervision or control of the nurses in the performance of their duty of counting sponges. All evidence in the record was to the contrary: There was testimony that operating room personnel have specialized tasks to perform during surgery, that the operating room nurses present during the operation on plaintiffs decedent had sole responsibility for counting the removed laparo-tomy sponges, that it was not practical for defendant to exercise control of the nurses in their sponge-counting task, and that, to the contrary, it was defendant’s duly to focus his attention on the patient. The nurses were professionals in their own right who were hired and trained by the hospital where the operation took place and for whose services the hospital billed its patient.

Accordingly, we hold that there was no evidence in this case that the operating room nurses were defendant’s agents or employees and, thus, no evidentiary support for giving plaintiffs requested jury instructions on vicarious liability. The trial court did not err in refusing to give plaintiffs requested jury instructions on defendant’s vicarious liability for the negligence of the nurses.

We turn next to the issue whether the trial court erred in informing the jury, at the beginning of trial, that there had been a settlement between plaintiff and the hospital and in instructing the jury in that regard.³ Before trial, the court determined that, in view of expected testimony regarding the operating room nurses’ incorrect count of the laparotomy sponges, the jury would “wonder why the hospital’s not involved in the case.” For that reason, the court told the jury of the settlement, but not of the amount of the settlement. The trial court instructed the jury that it was “not to infer from the settlement that [defendant] is or is not liable to plaintiff. That settlement does not change the issues between the parties.”⁴

The trial court’s actions had two components: the court gave information to the jury, and the court instructed the jury about the law. We first consider the informational component.

This court has not previously considered precisely the question presented, but two cases suggest an answer. In Roe v. Warren, 243 Or 373, 413 P2d 610 (1966), a civil assault case, this court held that it was error to admit evidence of the plaintiff’s claim against a second attacker. In Fenton v. Aleshire, 238 Or 24, 393 P2d 217 (1964), a wrongful death action, this court held that it was error to permit the defendant to tell the jury that the plaintiffs, parents of the deceased child, also had a claim for loss of the child’s services. In both of those cases, this court reasoned that it is prejudicial to introduce evidence or argument that the plaintiff might recover for the injuries in question from another tortfeasor or in another case. Roe v. Warren, supra, 243 Or at 374-75 (citing Fenton v. Aleshire, supra, 238 Or at 28-29). Those decisions suggest that, in the usual case, it is not proper to inform the jury concerning a plaintiffs remedies or potential remedies against persons who are not parties in the dispute that the jury is to decide, unless that information has independent relevance.

Similarly, OEC 408 provides that evidence of a compromise is not admissible unless it is offered for a purpose having independent relevance:

“(l)(a) Evidence of furnishing * * * or accepting * * * a valuable consideration in compromising * * * a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

“(2)(b) Subsection (1) of this section * * * does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, [or] negating a contention of undue delay * *

Here, the information concerning settlement with the hospital had no independent relevance, and the circumstances of the case did not suggest a reason to depart from the usual rule. The trial court erred in informing the jury about the settlement at the beginning of trial.

The trial court also instructed the jury about the effect of the settlement with the hospital. Although the instruction was correct in the abstract, in context it compounded the court’s earlier error by emphasizing an irrelevant issue.

The trial court’s instruction did nothing to inform the jury about the issues that it was to decide. This court has held that it can be error to give an instruction that correctly describes the law if “the instruction distracts the jury from the appropriate line of analysis.” Honeywell v. Sterling Furniture Co., 310 Or 206, 211, 797 P2d 1019 (1990). In Honeywell, this court held that it was reversible error to instruct a jury concerning the distribution that would be made of a punitive damages award, even though the instruction described the applicable statute accurately and even though the jury might have made a “benign” use of the information. Id. at 211-12. In this case, the jury could have been encouraged to conclude that plaintiff had been compensated fully for the claimed injury and thereby could have been distracted from the appropriate line of analysis.

After examining the entire record of the trial, we are convinced that the errors, considered cumulatively, were prejudicial. The “natural tendency [of the court’s státement and instruction] was to plant in the jury’s mind the idea that they should allow no damages,” Fenton v. Aleshire, supra, 238 Or at 28, because plaintiff already was compensated for her loss. Accordingly, we hold that plaintiff is entitled to a new trial.

We have considered plaintiffs other assignments of error but are not persuaded that any of them requires discussion.

The decision of the Court of Appeals is affirmed on different grounds. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

1 Plaintiff requested this instruction on imputed negligence:

“Where there are nurses under the control of the surgeon, the negligence, if any, of the nurses is to be considered the negligence of the surgeon-defendant.” Plaintiff requested this instruction on respondeat superior:

“Plaintiff claims that the nurses in the surgery were defendant’s agents and were acting within the scope of defendant’s directions as such agents at the time involved in this case. Defendant denies that the nurses in the surgery were acting within the scope of defendant’s direction as agentfs] at the time involved in this case.

“An agent is a person who is authorized to act for and is subject to the controls Tsic] or right to control of another person, who is called the principal. The acts or omissions of an agent within the scope of the agents [sic] authority are to be considered by you as the acts or omissions of the principal.”

At the end of trial, in a meeting with counsel, the court stated:

“I’m not going to give Tthe requested jury instruction on imputed negligence], There’s no evidence whatsoever in this record of any agency relationship between the defendant, employee relationship to the defendant.

<<* * * * *

“* * * i cannot find any reference to a claim in your pleadings of either agency or employer or vicarious liability.

“I’ll not give Tthe requested jury instruction on respondeat superior] for the reasons stated.”

2 The same principle applied before adoption of the Oregon Rules of Civil Procedure. See R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 307, 586 P2d 1123 (1978) (instruction need not be given if, although technically correct, it has no relation to the issues raised by the pleadings and proof); Dunford v. Worden, 242 Or 536, 540, 410 P2d 1020 (1966) (party is “entitled to instructions covering all theories of the case supported by competent evidence”); Lee v. Caldwell, 229 Or 174, 182, 366 P2d 913 (1961) (same). See also Dormaier v. Jesse, 230 Or 194, 198, 369 P2d 131 (1962) (giving of instructions not supported by evidence permits jury to speculate and is error).

3 In so informing the jury, the trial court relied on the decision of the Court of Appeals in Yardley v. Rucker Brothers Trucking, Inc., 42 Or App 239, 600 P2d 485 (1979), rev den 288 Or 335 (1980). In that case, the Court of Appeals stated that, “ [depending upon the circumstances, it might be proper or improper for evidence to be admitted before the jury of the existence of a prior settlement.” 42 Or App at 244. The court held, however, that, “if evidence of aprior settlement is admitted, * * * the court must unequivocally instruct the jury to disregard the settlement and return a verdict for the full amount of the plaintiffs damages.” Ibid, (emphasis added).

4 The trial court based its instruction on Uniform Civil Jury Instruction No. 11.70.