SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 21, 2012
In the Court of Appeals of Georgia A12A1218. HENDLEY et al. v. EVANS et al.
MCFADDEN, Judge.
Joan and John Hendley sued Glenn Evans, M. D. and his employer, Valdosta
Medical Clinic, P. C. (the defendants), for medical malpractice. The Hendleys
contend that Joan Hendley suffered a vessel collapse during a medical procedure
performed by Dr. Evans. They contend that Joan Hendley sustained brain damage and
other physical injuries as a result of acts and omissions of Dr. Evans and of hospital
personnel who were working under Dr. Evans’s supervision at the time of the
collapse. A jury returned a defense verdict, upon which the trial court entered
judgment. The Hendleys appeal.
The Hendleys argue that the trial court erred in failing to give any of several
jury charges they requested on the issue of Dr. Evans’s potential vicarious liability for the acts and omissions of hospital personnel. We agree that the trial court was
required to charge on this theory of recovery, and accordingly we reverse.
We find no merit, however, in the Hendleys’ arguments that the trial court erred
in failing to give other requested charges on evidentiary presumptions and
circumstantial evidence or in giving Dr. Evans’s requested charge on accepted risk.
Finally, in light of our disposition and given the impending change to Georgia’s
evidence rules, we do not address the Hendleys’ claim that the court erred in
excluding as hearsay certain witness testimony that they argued was subject to the res
geste exception.
1. Facts and proceedings below.
The trial evidence showed that on November 9, 2005, a doctor in Dr. Evans’s
practice performed a diagnostic heart catheterization procedure on Mrs. Hendley at
a hospital. During the catheterization procedure, that doctor decided that Mrs.
Hendley also should undergo an angioplasty procedure to insert stents into some of
her blood vessels.
Dr. Evans performed the angioplasty procedure. During that procedure, Mrs.
Hendley’s blood pressure dropped and one of her blood vessels collapsed. Dr. Evans
then called a “Code Blue.” Hospital personnel in the operating room performed CPR
2 on Mrs. Hendley and, after multiple attempts, intubated her. During the Code,
however, Mrs. Hendley’s oxygen saturation dropped to a dangerous level. The
Hendleys presented evidence that she sustained some brain damage from lack of
oxygen following the vascular collapse.
Mrs. Hendley remained intubated for several weeks after the Code due to
complications, and after several unsuccessful attempts at extubation she underwent
a tracheotomy. The doctor who performed the tracheotomy found damaged tissue and
scarring in her esophagus. The Hendleys presented evidence that this scarring was a
complication of the multiple intubation attempts and prolonged intubation. After
continued complications and additional surgeries, Mrs. Hendley’s voice box was
removed and she is now permanently dependent on a tracheostomy.
2. Jury charges.
The Hendleys argue that the trial court erred in denying their requests for jury
charges on the following issues: the borrowed servant doctrine, respondeat superior,
agency, imputed negligence, evidentiary presumptions arising from a party’s failure
to produce evidence or witness testimony, and circumstantial evidence. They also
argue that the trial court erred in giving the defendants’ requested charge on accepted
risk.
3 “A charge on a given subject is justified if there is even slight evidence from
which a jury could infer a conclusion regarding that subject.” (Citations and
punctuation omitted.) Gates v. Navy, 274 Ga. App. 180, 183 (4) (617 SE2d 163)
(2005). A trial court may deny a specific request to charge if any portion of the
request is inapt or incorrect, because a request to charge must be “correct, legal, apt,
even perfect, and precisely adjusted to some principle involved in the case.” (Citation
omitted.) Lifestyle Family, L. P. v. Lawyers Title Ins. Corp., 256 Ga. App. 305, 311
(3) (568 SE2d 171) (2002). Nevertheless, “[a] trial court must instruct a jury on the
law as to every controlling, material, substantial and vital issue in the case. The
failure to charge on a properly asserted and legally cognizable theory of recovery,
whether requested or not, or attention be called to it or not, is harmful as a matter of
law.” (Citations and punctuation omitted.) Duffield v. Chui, 314 Ga. App. 214, 214-
215 (723 SE2d 506) (2012). Accord Tempo Mgmt. v. Lewis, 210 Ga. App. 390, 391
(1) (436 SE2d 98) (1993).
(a) The trial court erred in failing to charge the jury on Dr. Evans’s potential
vicarious liability for the negligence of hospital personnel.
Concerning the issue of Dr. Evans’s vicarious liability, the Hendleys sought
that the jury be charged on the borrowed servant doctrine or, alternatively, be given
4 the pattern charges on respondeat superior, agency and imputed negligence. The trial
court, however, declined to give any of these requested charges, and its final charge
did not instruct the jury on the issue of Dr. Evans’s possible vicarious liability.
As detailed below, the trial court did not err in declining to give the specific
charge that the Hendleys requested on the borrowed servant doctrine, because it was
not a fully accurate statement of the law. The Hendleys, however, presented some
evidence from which a jury could find Dr. Evans vicariously liable for the negligent
acts and omissions of hospital personnel, and the trial court was required to instruct
the jury on this theory of the Hendleys’ case. The court’s failure to give any
instruction on vicarious liability was reversible error.
(i) A doctor may be found liable under the theory of respondeat superior for the
negligent acts of his employees. See Packer v. Gill, 193 Ga. App. 388, 390 (4) (388
SE2d 338) (1989). “[T]he traditional definition of ‘employee’ . . . has for at least a
century contained within its purview borrowed servants.” Summerlin v. Ga. Pines
Community Svc. Bd., 286 Ga. 593, 595 (2) (690 SE2d 401) (2010). “Ordinarily, when
one lends his servant to another for a particular employment, the servant will be dealt
with as a servant of the person to whom he is lent, although he remains the general
servant of the person who lent him.” (Citations omitted.) Merry Bros. Brick &c. v.
5 Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969); see Summerlin, 286 Ga. at
594 (2) (“borrowed servants are employees of the borrowing employer”) (citations
omitted).
Accordingly, the borrowed servant doctrine “is applied in the context of the tort
doctrine of respondeat superior.” Summerlin, 286 Ga. at 596 (2); see Staffing
Resources v. Nash, 218 Ga. App. 525 (1) (462 SE2d 401) (1995). It is a means of
transferring the vicarious liability for an employee’s negligence from a lending
employer to a borrowing employer. See Hoffman v. Wells, 260 Ga. 588, 590 (2) (397
SE2d 696) (1990) (discussing borrowed servant doctrine as effecting a transfer of
vicarious liability); Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (367 SE2d
793) (1988) (same).
The requirements for the borrowed servant doctrine to apply
are well settled in this state[.] In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant. Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981).
6 (Punctuation omitted.) Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797 (604
SE2d 763) (2004). The three prongs of this test “focus on the occasion when the
injury occurred rather than the work relationship in general.” (Punctuation omitted.)
Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988); see Berry v. Davis
Feed & Seed, 237 Ga. App. 768, 770 (561 SE2d 812) (1999) (as to the third prong,
“the temporary employer’s exclusive power to discharge must relate only to the
temporary assignment”) (citation and punctuation omitted).
A number of Georgia cases have explored the parameters of this basis for
imputing liability in the context of a hospital operating room. In Miller v. Atkins, 142
Ga. App. 618 (236 SE2d 838) (1977), and its progeny we explained that “where a
hospital yields control of its employees to a surgeon in the operating room, and the
surgeon exercises immediate personal supervision over those employees, then he
becomes their master, and their negligence during the course of the master-servant
relationship will be imputable to him.” (Emphasis supplied.) Id. at 619. Accord
McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 418 (3) (336 SE2d 268)
(1985); Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290, 291 (1) (291 SE2d 1)
(1982). Our Supreme Court, in Ross v. Chatham County Hosp. Auth., 258 Ga. 234
(367 SE2d 793) (1988), reaffirmed this principle regarding the transfer of vicarious
7 liability for the negligence of hospital employees from the hospital to an operating
room doctor pursuant to the borrowed servant doctrine. Id. at 234-235 (1). The Court
held in Ross that a hospital seeking to defend a medical malpractice claim based upon
the negligent acts of its employees during a surgical procedure performed in a
hospital operating room must show three things: (1) that the hospital yielded control
of its employees who were assisting in the surgical procedure; (2) that the employees
were under the immediate supervision of the surgeon; and (3) that the tasks performed
by the employees involved professional skill and judgment. Id. at 235 (1).
The defendants contend that Ross stands for the proposition that the borrowed
servant doctrine may only be used defensively by a party seeking to transfer vicarious
liability to another party. They assert in their appellate brief that neither Ross nor the
other Georgia cases addressing the borrowed servant doctrine in the hospital context
“permit a medical malpractice plaintiff to assert the [b]orrowed [s]ervant [d]octrine
as an affirmative theory of recovery.” (Emphasis in original.) Essentially, the
defendants argue that a plaintiff injured by the negligent acts of hospital personnel
while they were working as borrowed servants of an operating room doctor has no
affirmative cause of action against the doctor under respondeat superior, but instead
must sue the hospital so that the hospital can assert the borrowed servant doctrine as
8 a defense. Only when the hospital is then removed from the case, under the
defendants’ theory, may the plaintiff proceed against the hospital personnel’s
temporary employer, the doctor.
We disagree with the defendants’ depiction of the function of the borrowed
servant doctrine. To say that a plaintiff has no affirmative cause of action against a
negligent actor’s employer is contrary to the doctrine of respondeat superior, under
which employers may be vicariously liable for their employees’ negligence. Outside
of the operating room context, we have held that an employer could be vicariously
liable on a plaintiff’s claim based on the negligence of a borrowed servant. See Coe
v. Carroll & Carroll, Inc., 308 Ga. App. 777, 778-782 (1) (709 SE2d 324) (2011)
(finding summary judgment not appropriate in personal injury action against allegedly
borrowing master of negligent servant, where questions of fact existed as to whether
requirements for application of borrowed servant doctrine had been met). Neither
Ross nor any of the other cases cited by the parties hold that a different rule should
apply to exclude borrowed servants from this basic principle of respondeat superior
in the operating room context. The fact that the borrowed servant doctrine was used
defensively in Ross and other cases by hospitals or other institutions (and thus was
discussed in those cases in terms reflecting that defensive use) is merely a function
9 of the procedural posture of those cases, not support for the deviation from settled
principles of respondeat superior proposed by the defendants.
Moreover, the position advocated by the defendants would result in
unnecessary lawsuits being filed against hospitals or other similarly-situated
institutions in cases where the undisputed facts showed those institutions had no
liability. The defendants’ own appellate brief illustrates this undesirable result. The
defendants contend that a plaintiff is not entitled to jury charges on the doctrines of
respondeat superior, agency, or imputed liability because “[t]he [b]orrowed [s]ervant
[d]octrine provides the only avenue in Georgia through which liability for the alleged
negligent act of a hospital employee [can] be imputed to an independent physician.”
(Emphasis supplied.) But the defendants also contend that a plaintiff is not entitled
to a jury charge on the borrowed servant doctrine unless the plaintiff sues the hospital
as well as the doctor. As a result, under the defendants’ view, the only way that a
plaintiff injured by the negligence of hospital personnel working as the borrowed
servants of an operating room doctor can seek recovery against that doctor is to sue
the hospital, even if, under the borrowed servant doctrine, the undisputed evidence
showed that the hospital had no liability whatsoever.
10 We have found no Georgia authority that requires the outcome proposed by the
defendants – forcing medical malpractice plaintiffs to sue hospitals merely to preserve
their causes of action against doctors. Given the lack of authority demanding this
outcome, we decline to read into Georgia’s doctrine of respondeat superior an
exception for borrowed servants that would impose such a requirement upon medical
malpractice plaintiffs.
(ii) But the specific charge requested by the Hendleys on the borrowed servant
doctrine was not a fully accurate statement of the law. Their requested charge stated:
“Once a doctor enters the operating room and takes charge of the proceedings then
the doctor becomes the master of all of the operating room personnel and their
negligence during the course of the master-servant relationship will be imputable to
the doctor.” This charge did not comport with the requirements for a transfer of
liability under the borrowed servant doctrine as articulated by our Supreme Court in
Ross, which included the additional requirement that the tasks performed by the
borrowed servants involve professional skill and judgment. See Ross, 258 Ga. at 235
(1). Accordingly, the trial court did not err in declining to give this specific charge.
(iii) Nevertheless, the court was required to instruct the jury on the law as to
every controlling, material, substantial and vital issue in the case, whether or not a
11 proper charge was requested. Duffield, 314 Ga. App. at 214-215. As explained below,
Dr. Evans’s vicarious liability for the negligence of hospital personnel was such an
issue in this case. Accordingly, the trial court erred in failing to instruct in some
manner on this issue – whether by modifying the Hendleys’ requested charge on the
borrowed servant doctrine, by giving one of the other instructions requested by the
Hendleys on the principles of respondeat superior, agency or imputed negligence, or
by devising its own charge on the issue. Id.
The trial evidence justified a charge on the issue of Dr. Evans’s vicarious
liability for the negligence of hospital personnel regarding the ventilation of Mrs.
Hendley during the Code Blue. The Hendleys presented some evidence from which
a jury could infer that the hospital employees in the operating room at the time of the
Code Blue breached the standard of care in their treatment of Mrs. Hendley by not
providing her with proper ventilation (which the parties refer to as being “masked and
bagged”) prior to her being intubated. The Hendleys’ expert witness testified that it
appeared from the records that “there was nobody in the room attending to [Mrs.
Hendley’s] respondatory status,” and that this constituted a deviation from the
standard of care.
12 And there was some evidence from which a jury could find the requirements
for a transfer of any liability for these hospital employees’ acts and omissions from
the hospital to Dr. Evans. Although the defendants argue that there was no evidence
that the hospital had completely yielded control over the operating room personnel
to Dr. Evans, Dr. Evans himself agreed at trial that, when he entered the operating
room to perform the angioplasty procedure, he “took control of [the] surgical suite”
and that, as the operating physician, he gave direct orders to the four other people in
the room. He also testified that, during the Code Blue, he delegated tasks to the other
people in the operating room. The defendants’ expert witnesses also agreed that Dr.
Evans directed the actions of the others during the Code Blue. The defendants do not
argue that the actions of the operating room personnel pertaining to the ventilation
and resuscitation of Mrs. Hendley during the Code Blue were not actions requiring
professional skill or judgment.
We agree with the defendants, however, that there was not trial evidence to
support the Hendleys’ other argument, that Dr. Evans was vicariously liable in regard
to an air bubble that may have entered Mrs. Hendley’s circulatory system at some
point during one of her procedures. The Hendleys have pointed to no evidence in the
record tying the suspected air bubble to any act or omission of a hospital employee
13 during the time when Dr. Evans was in the operating room to perform the angioplasty
procedure or during the subsequent Code Blue. See generally Doctors Hosp. of
Augusta v. Bonner, 195 Ga. App. 152, 164 (8) (392 SE2d 897) (1990) (borrowed
servant doctrine did not apply where doctor alleged to be borrowing employer was
not present in operating room when acts of negligence by certified registered nurse
anesthetist occurred). Instead, the evidence pertaining to the suspected air bubble
suggested that, if such an air bubble occurred at all, it was introduced through the use
of equipment during the earlier catheterization procedure, before Dr. Evans entered
the operating room.
In summary, there was evidence supporting the Hendleys’ theory that Dr.
Evans should be held vicariously liable, under the principle of respondeat superior,
for negligence of hospital personnel pertaining to the ventilation of Mrs. Hendley
during the Code Blue. Accordingly, vicarious liability was a properly asserted and
legally cognizable theory of the Hendleys’ recovery. Because the trial court failed to
charge on this theory of recovery, we must reverse. See Duffield, 314 Ga. App. at
214-216; see also Miller, 142 Ga. App. at 619 (reversing judgment on jury verdict
where trial court failed to charge jury on vicarious liability based on borrowed servant
doctrine). It will be for the trial court on retrial to determine the specific charge to
14 give the jury on this issue, consistent with the evidence presented on retrial and the
requirements set forth in Ross, supra, 258 Ga. 234.
(b) The trial court did not err in failing to charge the jury on evidentiary
presumptions.
The Hendleys requested that the trial court give the following two pattern
charges on evidentiary presumptions:
When a party has evidence that rejects (or disproves) a claim or charge made against the party and he/she fails to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded. This presumption may be rebutted, however.
Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.160 (2010).
If a party fails to produce an available witness, the jury shall determine whether such a failure warrants the inference that the witness, if produced, would have testified to facts prejudicial to the party failing to produce the witness.
Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.161 (2010). The charges
derive from OCGA § 24-4-22, which provides that
[i]f a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he
15 has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well-founded; but this presumption may be rebutted.
Comparable provisions to this Code section have been included in the revision to
Georgia’s evidence code, which goes into effect on January 1, 2013. See OCGA § 24-
14-22.
(i) The Hendleys argue that pattern charge § 02.160 should have been given
because the defendants failed to produce evidence regarding whether Mrs. Hendley
was ventilated, through the method the parties refer to as being “masked and bagged,”
before being intubated. But the principle set forth in OCGA § 24-4-22 applies only
in cases where it is shown that a party has withheld evidence within the party’s power
and control, and an instruction on that principle should be given only in “exceptional
cases.” (Citation omitted.) AT Systems Southeast v. Carnes, 272 Ga. App. 671, 674
(3) (a) (613 SE2d 150) (2005). See also Cotton States Fertilizer Co. v. Childs, 179
Ga. 23, 31 (174 SE 708) (1934). Compare Eddie Parker Interests v. Booth, 160 Ga.
App. 15, 16-17 (285 SE2d 753) (1981) (applying presumption against party which
admitted that relevant, unproduced evidence “most likely” was in its files). Here, the
evidence included medical records regarding the treatment of Mrs. Hendley during
16 the Code, and the defendants introduced testimonial evidence that the notations in
those records were consistent with her receiving ventilation as part of
cardiopulminary resuscitation efforts. The Hendleys have pointed to nothing showing
that the defendants withheld other medical records or any other evidence on this issue
that was within their power and control. Under these circumstances, the trial court did
not err in declining to give the requested charge.
(ii) The Hendleys argue that pattern charge § 02.161 should have been given
because the defendants did not produce testimony from Dr. Evans, doctors who were
partners in the Valdosta Medical Clinic, or any other witness to rebut the medical
records that the Hendleys contend showed that Mrs. Hendley was not “masked and
bagged.” The requested charge was inapplicable to Dr. Evans, because the evidentiary
presumption does not apply to the decision of a party defendant not to testify, see
Maloy v. Dixon, 127 Ga. App. 151, 154-155 (2) (a) (193 SE2d 19) (1972), and
because, in any event, Dr. Evans did testify (albeit on cross-examination during the
Hendleys’ case-in-chief). Pretermitting whether the rule regarding a party defendant
also would apply to the other doctors who are partners of defendant Valdosta Medical
Clinic, the Hendleys have pointed to nothing in the record demonstrating that any of
those doctors who did not testify had any personal knowledge relevant to the issues
17 in this case. (One of Dr. Evans’s partners in the Valdosta Medical Clinic did testify
– the doctor who performed the initial diagnostic catheterization procedure on Mrs.
Hendley.) Finally, as stated above, the defendants did present witness testimony
rebutting the Hendleys’ interpretation of the medical records. Under these
circumstances, the trial court did not err in declining to give the requested charge.
(c) The trial court did not err in failing to give the jury the Hendleys’ requested
charge on circumstantial evidence.
The Hendleys argue that the trial court erred in declining to give the following
charge: “I charge you that circumstantial as well as direct evidence may be used to
prove negligence.” The trial court, however, did charge the jury that “[b]oth direct
and circumstantial evidence may be used to prove the facts upon which any expert
relies in formulating his opinion that negligence occurred.” And the trial court
charged the jury on the definitions of circumstantial evidence and direct evidence and
instructed the jury that “[t]he comparative weight of circumstantial and direct
evidence on any given issue is a question of fact for you to decide.” Because the
charges given by the trial court covered the principle addressed by the Hendley’s
requested charge, we find no error in the court’s decision not to give the requested
18 charge. See Georgia Dept. of Transp. v. Miller, 300 Ga. App. 857, 865 (4) (b) (686
SE2d 455) (2009).
(d) The trial court did not err in charging the jury on accepted risk.
The Hendleys argue that the trial court erred in giving the following jury
charge:
I charge you that in the event a plaintiff develops a certain condition or an event occurs which is recognized to be an accepted risk or known complication of medical treatment, that on its own is not proof of negligence. It is for you to determine whether such condition is a medically accepted risk, known complication of plaintiffs’ medical treatment, or negligence.
The first sentence of the challenged charge is a correct statement of law.
Barham v. Levy, 228 Ga. App. 594, 595 (1) (492 SE2d 325) (1997). Although the
Hendleys contend that the second sentence of the charge was confusing, we agree
with the defendants that, when viewed in the context of the charge as a whole, which
included instructions on the “law concerning an allegation of professional negligence
and, in particular, . . . the standards of care and what must have been established in
order to hold Dr. [Evans] liable,” id., the trial court did not err in giving the charge.
19 3. Hearsay evidence.
The Hendleys also argue that the trial court erred in excluding as hearsay
testimony from a person who was working in the operating room at the time of the
Code Blue. They proffered that this witness would testify that she heard another
person in the room – whom she could not identify – mention a “possible air embolus”
during the Code. The Hendleys argue that this testimony should have been allowed
under the res gestae exception to the hearsay rule. We decline to review the trial
court’s decision on this issue, because as of January 1, 2013, Georgia’s evidence rules
will change and any opinion we might make on the admissibility of the evidence on
retrial under the new evidence rules would be advisory. See generally Huff v.
Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate
courts are not authorized to render advisory opinions as to potential error”) (citations
and punctuation omitted).
Judgment reversed. Barnes, P. J., and Adams, J., concur.