U.S. FID. GUAR. v. DOCTORS' HOSP

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Docket Number

No. 4992.

Attorney(S)

J. Joseph Barse, Washington, D.C., for appellant. John L. Laskey, Washington, D.C., with whom Dolores Telfer Trojnar, Washington, D.C., was on the brief, for appellee.

Judges

FICKLING, Associate Judge.

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Smart Summary

Factual and Procedural Background

A patient underwent surgery at The Doctors' Hospital, and a hemostat was later discovered in her abdomen. The patient sued the surgeon, Dr. Gerber, and the hospital. After settling with Dr. Gerber, his insurer, United States Fidelity Guaranty Company, sought contribution from the hospital for one-half of the settlement payment. [1]

At trial, the parties stipulated that the resident assistant surgeon had to use reasonable care to observe that instruments were removed before closure, but it was unknown who placed the hemostat in the patient. The trial court found that the insurer had not proved that the resident failed to exercise reasonable care and entered judgment for the hospital. [2][3][4] The insurer appealed from the denial of its motion for a new trial. [5][6]

Legal Issues Presented

Whether the insurer seeking contribution had to prove that the hospital would have been jointly liable to the patient, including proof that the resident assistant surgeon was negligent. [6][7][8]
Whether the insurer could rely on res ipsa loquitur to establish the hospital's liability for contribution. [6][9]
Whether res ipsa loquitur was available between alleged joint tort-feasors who had equal access to the instrumentality causing the injury. [10][11]

Arguments of the Parties

Appellant's Arguments

The insurer argued that the trial court improperly required proof beyond showing that the hospital would have been jointly liable with Dr. Gerber in the patient's settled action. [6]
It contended that the evidence and burden of proof should be viewed from the patient's standpoint, making res ipsa loquitur applicable to its contribution claim. [6]
The insurer asserted that it had successfully carried its burden of proof. [6]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jones v. Schramm	A contribution claim against an unsued second tort-feasor sounds in equity, and the court determines whether that tort-feasor was negligent and liable to the injured plaintiff.	The court held that this principle did not make res ipsa loquitur beneficial to the insurer and treated proof of the resident's negligence as necessary. [12][9][8]
Sweeney v. Erving	Res ipsa loquitur provides an inference of negligence rather than shifting the burden of proof to the defendant.	The court used this principle to explain why the doctrine did not establish the insurer's contribution claim. [13]
Smith v. Reitman	Malpractice may be proved by direct evidence or through res ipsa loquitur when the occurrence ordinarily would not happen absent negligence.	The court emphasized that res ipsa permits, but does not compel, a finding of negligence. [14][15]
Washington Sheraton Corp. v. Keeter	Res ipsa loquitur may be used by a patient against multiple tort-feasors but is unavailable between alleged joint tort-feasors with equal access to the causal instrumentality.	The court applied this rule because the hospital and the other alleged tort-feasor had equal access to the hemostat. [16][11]
Lathon v. Hadley Memorial Hosp.	Res ipsa loquitur permits but does not compel a finding of negligence.	The court relied on this principle in concluding that the insurer's case had been decided on its merits rather than through an automatic inference of negligence. [15][17]
Conrad v. Lakewood Gen. Hosp.	The surgeon may be negligent as a matter of law while the assistant's negligence remains a factual question.	The court cited the case in support of treating the assistant surgeon's negligence as a separate factual issue. [18][19]
Ybarra v. Spangard	The opinion cites the case as additional authority concerning the distinction involving the surgeon and assistant's potential negligence.	The court included it as supporting authority for its analysis of the assistant surgeon's responsibility. [19]
Warner v. Pinson	The opinion cites the case in connection with the rule limiting res ipsa loquitur between alleged joint tort-feasors.	The citation supports the court's conclusion that the doctrine was unavailable in the circumstances presented. [11]

Court's Reasoning and Analysis

The court first distinguished the patient's potential use of res ipsa loquitur from the insurer's contribution claim. In this jurisdiction, res ipsa loquitur does not shift the burden of proof; it merely permits an inference of negligence sufficient to avoid dismissal or a directed verdict in the injured party's action. [9][13]

Although res ipsa loquitur could be used by a patient against multiple tort-feasors, it permitted rather than compelled a negligence finding. Thus, even if Dr. Gerber could have been deemed negligent as a matter of law, the fact finder could still determine that his assistant was not negligent as a matter of fact. [14][16][15][18]

The hospital presented evidence explaining or negating an inference of negligence by the assistant surgeon, creating a factual question. The insurer therefore had to prove that Dr. Alizade was negligent and that the hospital would consequently have been jointly liable to the patient. The trial court found that the insurer failed to do so, and the appellate court was not persuaded that this finding was clearly erroneous. [18][7][17][8]

The court further held that res ipsa loquitur was unavailable between the alleged joint tort-feasors because both parties had equal access to the instrumentality that caused the injury. [10][11]

Holding and Implications

Affirmed. The court held that the insurer could not obtain contribution without proving the resident assistant surgeon's negligence and the hospital's resulting liability to the patient. The trial court's judgment for the hospital was therefore upheld. [7][20][21]

The direct effect was that the insurer received no contribution from the hospital. The opinion discusses no broader implications beyond applying the stated contribution and res ipsa loquitur principles; no new precedent was set.

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UNITED STATES FIDELITY GUARANTY COMPANY, a corporation, Appellant, v. The DOCTORS' HOSPITAL, Appellee.

FICKLING, Associate Judge.

A patient underwent an operation at The Doctors' Hospital for the removal of a malignant cystic tumor approximately the size of a full term pregnancy. Subsequent to the operation, a hemostat or clamp was discovered in her abdomen. As a result, a negligence action was brought by the patient against her surgeon, Dr. Gerber, and The Doctors' Hospital. That action was settled with Dr. Gerber and withdrawn as to The Doctors' Hospital, which had refused to participate in the settlement. Thereafter, United States Fidelity Guaranty Company, Dr. Gerber's insurer, brought this action against The Doctors' Hospital for contribution of one-half of the sum paid by it in settlement of the patient's claim.

At trial it was established that Dr. Gerber was assisted in the operation by Dr. Alizade, a resident physician on the staff of appellee-hospital. Because of the size of the tumor, the assistant surgeon would not at all times have been able to see what the surgeon was doing, and it was possible, during an operation of this nature, for a hemostat to slip out of sight beneath the organs. It was also established that it was the practice of surgeons to search the operative area for foreign substances before closing the incision and that good medical practice required their removal before closing.

The parties stipulated at trial that a resident, as assistant surgeon, "must use reasonable care to observe and see that instruments are removed" from the patient before the incision is closed. They stipulated also that it was not known who placed this particular hemostat in the patient.

The trial court found that the insurer had not proved that the resident had failed to exercise reasonable care in observing the operative site to ensure that all surgical instruments were removed before closing, and judgment was entered for the hospital.

On appeal from denial of the insurer's motion for a new trial, the insurer contends that the trial court erred by requiring proof of something more than the fact that the hospital would have been jointly liable with it in the action filed by the patient against Dr. Gerber and the hospital, had it not been settled. It argues that, "the evidence and the burden of proof must be viewed * * from the patient's standpoint"; that, under those circumstances, the doctrine of res ipsa loquitur is applicable to its case; and that it successfully carried its burden of proof.

In support of its position, the insurer relies on the general language of several opinions to the effect

* * * that when contribution is sought against a defendant [ i. e., a second tort-feasor] who was not sued by plaintiff [ i. e., the patient], as is permitted by our decisions, the claim sounds in equity and the court acts as finder of the fact to determine whether the second tortfeasor from whom contribution is sought was negligent, and therefore liable to the [patient].

Jones v. Schramm, U.S.App.D.C. (No. 22,102, decided March 5, 1970, slip op. at 3) (footnote omitted).

We do not think that this theory of law, as stated in Jones, means that the doctrine of res ipsa loquitur is beneficial to the insurer in the instant case, although the doctrine might have been beneficial to the patient in her action. First, the doctrine of res ipsa loquitur, in this jurisdiction at least, is a device which does not shift the burden of proof to the defendant in an action by the victim of a tort, but merely gives the latter the benefit of an inference of negligence, absent rebuttal, so as to avoid dismissal or a directed verdict in the defendant's favor.

Sweeney v. Erving, 228 U.S. 233, 238, 239, 33 S.Ct. 416, 57 L.Ed. 815 (1913). See Prosser, The Procedural Effect of Res Ipsa Loquitur, 20 Minn.L.Rev. 241 (1936).

In order to make out a case of malpractice, which is a species of negligence, the plaintiff must show that his injury was a result of the failure to use "that degree of care and skill ordinarily exercised by the profession in his own or similar localities." * * * He can do this by direct evidence about the standard in his locality and the procedure used in his case, in order to demonstrate that it fell short of that standard. * * *

[However a] plaintiff can also make out a case of negligence without direct testimony of a failure to meet the requisite standards of care and skill if the evidence makes out a case under the doctrine of res ipsa loquitur. This doctrine "is a common sense rule which allows an inference of negligence where the occurrence complained of ordinarily would not happen in the absence of negligence." * * *

Smith v. Reitman, 128 U.S.App.D.C. 352, 353, 389 F.2d 303, 304 (1967) (citations omitted). The doctrine, which may be used by the patient against multiple tort-feasors, permits but does not compel a finding of negligence by the fact finder.

Washington Sheraton Corp. v. Keeter, D.C.App., 239 A.2d 620, 622 (1968).

Lathon v. Hadley Memorial Hosp., D.C.App., 250 A.2d 548 (1969).

Hypothetically, even assuming that Dr. Gerber, as the surgeon in charge, in an action by the patient was held negligent as a matter of law, the fact finder could find his assistant not negligent as a matter of fact. In the instant case, there was evidence presented by the hospital which explained or negated any inference of negligence by the assistant surgeon, thereby raising a question of fact.

See Conrad v. Lakewood Gen. Hosp., 67 Wn.2d 934, 410 P.2d 785 (1966). See also Ybarra v. Spangard, 93 Cal.App.2d 43, 208 P.2d 445 (1949).

The insurer could derive no benefit from res ipsa loquitur; its case was considered by the fact finder and was disposed of on its merits. The trial court found, in other words, that the appellant had failed to establish as "a prerequisite of contribution that the contribution defendant must have been originally liable to plaintiff [the patient]." That is, the appellant failed to carry its burden of proving that Dr. Alizade was negligent and, consequently, that the hospital (his employer) would have been jointly liable with it in the action by the patient. We are not persuaded that the court's finding was clearly erroneous.

See Lathon v. Hadley Memorial Hosp., supra, n. 3. See generally Smith v. Reitman, supra.

Jones v. Schramm, supra (slip op. at 3) (footnote omitted).

Furthermore, as we have previously held, the doctrine is not available between alleged joint tort-feasors where, as here, both parties had equal access to the instrumentality which caused the injury.

Washington Sheraton Corp. v. Keeter, supra n. 2. See Warner v. Pinson, D.C.App., 260 A.2d 689 (1970).

In light of the foregoing, we find no error and we therefore affirm.

Affirmed.