Messina v. Societe Francaise De Bienfaissance Et D'Assistance Mutuelle De La Nouvelle Orleans

JANVIER, Judge (concurring). I quite agree with the view of my associate that there is no liability in defendants, and I therefore concur in the decree, which dismisses plaintiff’s suit, but I feel that the result could sooner have been reached on the ground that, as a matter of law, there is no liability in a hospital, nor in its insurer, for errors of professional judgment committed by a professional or especially trained employee acting under orders of a physician employed by a patient, if the hospital, in the selection of the especially skilled or trained employee, has exercised due and proper care and precaution. It must be conceded that in the operation of hospitals it is essential that internes and externes and especially trained nurses be employed. It is universally recognized that these employees are usually selected from those students who, because of their excellence in grades, entitles them to special consideration. It is also generally known that these employees, though in the general employ of the hospital, are required by the private physicians or surgeons employed by the patients to perform services requiring the exercise of judgment and discretion, which has presumably been developed as the result of special courses of training which the said employees have completed or are completing. If, in the selection of these employees, the hospital authorities have exercised due care, I feel that it would be improper to hold the hospital itself liable for errors of judgment which may be committed by such employees in carrying out the special orders of the private physicians. To hold otherwise is to hold that in such cases hospitals are the guarantors of the perfection of those employees; that they are the insurers of the patients. All that such hospitals should be held to have undertaken in such cases is the duty of providing employees properly trained to perform the particular services which are customarily permitted or required to be performed by such employees. If, in operating such services, such employees commit errors of professional judgment, there should be no liability in the hospitals employing them. Obviously, there is no right in the hospital to direct or to supervise such employees in the exercise of professional judgment. The doctrine, respondeat superior, is founded on the right to direct or supervise. If the act required to be done does not require the exercise of that special skill, or that special discretion, which has supposedly been developed by the training, and is an act which may just as well be done by an unskilled or untrained employee, or if the error or mistake results not from improper exercise of professional judgment, but merely from nonprofessional mistake, then liability should be held to result. The distinction is well illustrated in Stanley v. Schumpert et al., 117 La. 255 , 41 So. 565 , 6 L.R.A.(N.S.) 306, 116 Am.St.Rep. 202 , 8 Ann.Cas. 1044. There the physician in charge of the patient had ordered that the nurse “drop some solution prepared for the purpose into the plaintiff’s eye with an ordinary medicine dropper.” Through carelessness, the nurse “did not administer the mild solution prescribed,” but “dropped alcohol freely into plaintiff’s eye.” The court held that the hospital, in whose general employ the nurse was, was responsible. There, the mistake made by the nurse did not result from the improper exercise of professional judgment, but from a purely nonprofessional error. She put into plaintiff’s eye something different from that ordered. If the physician had ordered drops of a certain kind to be put into the plaintiff’s eye by the nurse and had not specified how many drops were to be applied, or how often the treatment should be afforded the plaintiff and had left these questions to the professional judgment of the nurse and the nurse had erred in applying too many drops, or in applying them too often, we think the result would have been entirely different, for there the mistake, if any, would have resulted from the exercise of improper professional judgment and there should have been no liability in the general employer. In Jordan v. Touro Infirmary (La.App.) 123 So. 726 , the nurse was ordered by the physician to apply hot water bottles to- the patient The temperature to which the wa *807 ter in the bottle should have been heated was left to the professional judgment and discretion of the nurse. Though the court did not decide the case on that ground, it may well have been held that there was no liability in the hospital for the mistake of the nurse in applying the water too hot, since that was 'not a nonprofessional error, but was a professional error, or an improper exercise of professional judgment. If a doctor determines that a patient should be given strychnine treatment and instructs a nurse or an interne or an externe to administer strychnine, and leaves to such employee the question of determining how often the treatment shall be administered and the employee, supposedly with sufficient skill to determine this, administers the treatment too often, there should be no liability in the general employer, the hospital. But if, under such circumstances, the supposedly skilled employee, instead of using strychnine, makes use of some entirely different drug as the result of nonprofessional error, then the hospital should be liable for this nonprofessional error. In the case at bar the worst that can be said is that it is found that an externe, chosen because of his special skill and training, injected the fluid when it was at too high a temperature. If so, this was not a nonprofessional error, but was a professional error resulting from a mistake in professional judgment as to how hot such fluid should be under the circumstances surrounding that particular situation. There should be no liability in the hospital. However, if the externe, in injecting the fluid, had not used the fluid directed, but, through nonprofessional mistake, had injected some poisonous or otherwise improper fluid, there should then be liability, because theoretically the hospital had the right to say to the externe, "You are not administering the drug ordered, but are injecting something else.” The hospital would have had this right, but it would not have the right to say to the externe, “You are administering the treatment directed, but you are administering it at too high a temperature.” That is a matter for professional judgment, and interference with the exercise of such professional judgment would, in the .great majority of cases, work havoc with the patients. For these reasons, as well as for the reasons given by my associate in his finding on the facts, I concur in the decree.