Vincent A. Alden v. Providence Hospital, George W. Ware, and Habeeb Bacchus

382 F.2d 163

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 15, 1967
• Docket: 20011
• Status: Published

Opinions

J. SKELLY WRIGHT, Circuit Judge:

The appeal in this malpractice case presents only one question: Did the trial court err in directing the verdict of the jury for the defendants at the close of the plaintiff’s case? We conclude that it did as to the hospital and its chief medical resident, Dr. Bacchus. We therefore reverse for a new trial as to them. We affirm as to Dr. Ware.

Appellant was admitted to Providence Hospital in August 1956 with a condition diagnosed as bulbar poliomyelitis. On March 17, 1957, he was transferred from Providence Hospital to the Polio Rehabilitation Hospital at Warm Springs, Georgia, for further care and treatment. Medical examinations, including x-ray studies, at the Warm Springs Hospital on March 18, 1957, and at the Emory University Hospital, to which appellant was transferred from Warm Springs, on March 19, 1957, disclosed that, in addition to his polio problems, he had been suffering from chronic empyema for several months and that the empyema had resulted in a collapse of the right lung. No diagnosis of empyema had been made prior to his arrival at Warm Springs, and as a result of the empyema appellant’s fifth and sixth ribs on the right side had to be removed by surgery. The basis of appellant’s claim is that the appellees were negligent in failing to discover, diagnose and treat the chronic empyema while he was a patient at Providence Hospital, and that his transfer from that hospital while suffering from this disease exacerbated his condition.

The test to be applied in ruling on a motion for a directed verdict made at the close of the plaintiff’s case is clear and uncontested in this litigation. Unless the evidence, along with all inferences reasonably to be drawn therefrom, when viewed in the light most favorable to the plaintiff is such that reasonable jurors in fair and impartial exercise of their judgment could not reasonably disagree in finding for the defendant, the motion must be denied.¹- With this test in mind, we first briefly review the evidence.

Empyema is an infection of the pleura, the membrane covering the lung, characterized by pus in the pleural cavity often leading to collapse of the lung. The Providence Hospital record in evidence here shows that for months prior to appellant’s transfer from that hospital on March 17, 1957, the pleural fluid in his right lung was presenting a problem. Indeed the x-rays showed continued “opacity of the right lung field which could be due to excess pleural fluid and pleural thickening.” On one occasion a thoracentesis was performed in which 600 cc’s of cloudy yellow fluid was drawn from appellant’s lung. The hospital record shows that time and again there were “no breath sounds and dullness to percussion over the right lung lobe,” indicating pleural fluid and pleural thickening around the lung.

These symptoms, in addition to continuous coughing and temperature, were present throughout appellant’s stay at Providence Hospital, according to its own records. Yet the hospital transfer form outlining his physical condition on transfer, signed by Dr. Bacchus as chief medical resident for the hospital, showed “chest, heart and lungs negative.” The hospital record also showed, and indeed appellant testified, that Dr. Bacchus had on numerous occasions examined, treated and otherwise acted as a physician with reference to appellant during his stay at Providence Hospital. Appellant also testified that Dr. Bacchus advised him to transfer to Warm Springs. The record in this case also contains evidence from a practicing physician in the District of Columbia that on March 17, 1957, appellant had chronic empyema, and that it was not in accordance with good medical practice for a hospital or a doctor in the District of Columbia to transfer a patient in this condition.

The inferences reasonably to be drawn from this evidence are, of course, that the appellant did indeed have chronic empyema during the months he was at Providence Hospital, that the hospital’s chief medical resident had failed to use the same degree of care which a physician practicing in the District of Columbia would normally be expected to use in diagnosing and treating that condition, and that the hospital through its employees, including Dr. Bacchus, had not exhibited that degree of care in diagnosing and treating appellant’s empyema that would reasonably be expected of a hospital in the District of Columbia. Consequently, the case was one for the jury as to Dr. Bacchus and the hospital.²

Unlike other jurisdictions which have been plagued by confusion in their malpractice jurisprudence, particularly as to hospitals, the law in the District of Columbia in this area has been clear for some years. In general it is the duty of a hospital here to give the patient such reasonable care and attention as his condition requires. “This duty is measured by the degree of care, skill and diligence customarily exercised by hospitals generally in the community, and by the express or implied contract with the patient.” Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 239, 204 F.2d 721, 725, 37 A.L.R.2d 1270 (1953). Moreover, “[i]f a hospital undertakes to render services customarily performed by physicians, it must perform such services with the same degree of care to which a private physician is held * * Ibid.

Actually, even though a patient has an attending physician selected by him, when that patient goes to a hospital, the service rendered by the hospital ordinarily includes medical care from the doctors and nurses employed by the hospital as well as access to any laboratory facilities maintained by the hospital. While it may be that an attending physician remains in charge of the case, the hospital and its agents remain responsible for those services it performs, or should perform, under the circumstances of the case and according to good medical practice.³

We affirm as to Dr. Ware because his contact with appellant’s case ended on November. 10, 1956, four months before the transfer to Warm Springs. No expert evidence was produced to show that during the time Dr. Ware was associated with appellant’s case the empyema should have been diagnosed and treated, if indeed it then existed.

Reversed as to Providence Hospital and Dr. Bacchus; affirmed as to Dr. Ware.

1 . Continental Ore. Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); 5 J. Moore, Federal Practice If 50.02 [1], at 2326-2329 (2d ed. 1966); 2B W. Barron & A. Holtzobf, Federal Practice and Procedure § 1075 (Wright ed. 1961).

2 . Garfield Memorial Hospital v. Marshall, 92 U.S.App.D.C. 234, 204 F2d 721, 37 A.L.R.2d 1270 (1953) ; Price v. Neyland, 115 U.S.App.D.C. 355, 320 F.2d 674, 99 (1963) ; Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364 (1952). Compare Stivers v. George Washington University, 116 U. S.App.D.C. 29, 320 F.2d 751 (1963).

3 . United States v. Brown, 348 U.S. 110, 113, 75 S.Ct. 141, 99 L.Ed. 139 (1954) ; Sheehan v. North Country Community Hospital, 273 N.Y. 163, 7 N.E.2d 28, 109 A.L.R. 1197 (1937). See also cases collected in Annot., 25 A.L.R.2d 29 (1952). Compare Hohenthal v. Smith, 72 App. D.C. 343, 114 F.2d 494 (1940). In Hohenthal, Judge Rutledge, later Mr. Justice Rutledge, wrote for the court, 72 App.D. C. at 345, 114 F.2d at 498:

“ * * * Part of the service furnished to the patient and charged for by the hospital is the assistance of nurses, interns and attendants in caring for the patient after the operation pursuant to instructions given by the operating surgeon. They perform the duty of their employer (the hospital) to the patient when they carry out the instructions of the doctor. * * * ”