#### JAMES H. JACKSON, Administrator on the Estate of JUDITH LANE JACKSON, Dec’d., v. DR. T. H. JOYNER.

(Filed 8 October, 1952.)

1. Physicians and Surgeons § 16 %—

Where the evidence tends to show that the physician performing the operation selected and arranged for the help of an anaesthetist employed by the hospital and had full power and control over him in the performance of his duties during the operation, *held*the anaesthetist was, during the period of the operation, the agent of the physician, and the physician is liable for the negligence of the anaesthetist in the administration of the anaesthetic. *Byrd v.*Hospital, 202 N.C. 337, cited and distinguished.

2. Master and Servant § 22d— ■

Where an employee is in the general employment of one person, but in the performance of a particular duty is under the immediate direction and control of another, the latter is liable for the servant’s negligence under the doctrine of *respondeat superior.*

*S.*Physicians and Surgeons § 16%—

Where in an action to recover for the death of a child following an operation, the complaint alleges that the defendant physician permitted an overdose of anaesthetic to be administered to the patient, and upon the trial there is substantial evidence to the effect that the anaesthetist who performed his duties under the direction and control of the physician was *260negligent, error in the charge to the effect that the physician would not be liable for the negligence of the anaesthetist must be held prejudicial.

4. Evidence § 48 *%*—

Where the details of the treatment and care given the patient by defendant physician are presented to an expert witness in the form of a hypothetical question, the witness should be asked whether in his opinion the treatment and care as outlined was in conformity with approved medical practices and treatment in the locality rather than whether such treatment would constitute a reasonable degree of care to be exercised by a diligent physician under the circumstances.

Appeal by plaintiff from *Bobbitt, J.,*and a jury, at Regular March Term, 1952, of Buncombe.

Civil action by plaintiff to recover damages for the alleged wrongful death of his intestate, an eight-year-old girl, who died before regaining-consciousness after a tonsillectomy performed by the defendant, Dr. T. H. Joyner, at the Mountain Sanitarium in Henderson County.

The Sanitarium and also Edgar A. Hanson, who administered the anaesthetic, were originally joined as defendants along with Dr. Joyner. However, by decision on former appeal, heard at the Spring Term, 1951, this Court affirmed a previous judgment of nonsuit as to all defendants except Dr. Joyner. As to him, the case was sent back for retrial for errors committed in the course of the trial. The decision on former appeal is reported in 234 N.C. 222, 67 S.E. 2d 57.

On retrial the jury found for their verdict that the death of plaintiff’s intestate was not caused by negligence of Dr. Joyner. From judgment on the verdict the plaintiff appealed, assigning errors.

*W. W. Candler, Don C. Young, and Cecil C. Jackson for plaintiff, appellant.*

*Harkins, Van WinJele, Walton & Buck for defendant, appellee.*

JohnsoN, J.

The plaintiff challenges the correctness of these instimc-tions: *. .*The Court instructs you that there is no evidence tending to show that Edgar A. Hanson or any of the nurses who attended Judith Lane Jackson was an employee of the defendant, Dr. T. H. Joyner. The Court instructs you further that the negligence on the part of Hanson, if any, and the negligence on the part of any of the nurses, if any, would not be deemed in law, the negligence of the defendant, Dr. Joyner.

“If there were negligence on the part of Hanson or on the part of any one or more of the nurses, which is denied by the defendant, Dr. T. H. Joyner, in such case the defendant, Dr. T. H. Joyner, would not he responsible for their negligence. The issue for decision is whether the defendant, Dr. T. H. Joyner, was negligent and whether such negligence *261on bis part was tbe proximate cause or one of tbe proximate causes of tbe death of Juditb Lane Jackson.”

These instructions in effect withdrew from tbe jury tbe question of negligence of Dr. Joyner based on tbe conduct of nurse Hanson.

Tbe record discloses that the child’s mother in arranging for tbe operation contacted and'engaged only Dr. Joyner. He in turn, after demurring to tbe mother’s suggestion that her family physician be engaged to give tbe anaesthetic, arranged for tbe help and assistance of tbe nurses, including nurse Hanson, who administered tbe anaesthetic.

On this record tbe evidence is sufficient to justify tbe inference that during tbe time tbe child was being prepared for tbe operation and while tbe operation was in progress, Dr. Joyner, as surgeon in charge, bad full power of control over tbe nurses, including nurse Hanson, so as to make him responsible for tbe way and manner in which tbe anaesthetic was administered by Hanson.

And when a surgeon occupies such position, bis duties and liabilities respecting supervision and control over tbe administration of tbe anaes-thetic are substantially tbe same as those respecting tbe other phases of tbe operation and bis treatment of tbe patient generally; that is, be is bound to exercise such reasonable care and skill respecting tbe administration of tbe anaesthetic as is usually exercised by average physicians and surgeons of good standing in tbe same community. 41 Am. Jur., Physicians and Surgeons, Sec. 95. See also *Jackson v. Sanitarium,*234 N.C. 222, 67 S.E. 2d 57; *Nash v. Royster,*189 N.C. 408, 127 S.E. 356.

It is true Hanson was in tbe general employ of tbe hospital; nevertheless, on this record it is inferable that be stood in tbe position of a lent servant who for tbe purpose and duration of tbe operation occupied tbe position of servant of Dr. Joyner. 35 Am. Jur., Master and Servant, Sec. 18. And tbe rule is that where a servant has two masters, a general and special one, tbe latter, if having tbe power of immediate direction and control, is tbe one responsible for tbe servant’s negligence. 35 Am. Jur., Master and Servant, Sec. 541. See also *Hodge v. McGuire,*235 N.C. 132, 69 S.E. 2d 229; *Hayes v. Eton College,*224 N.C. 11, 15, 29 S.E. 2d 137. Tbe power of control is tbe test of liability under tbe doctrine of *respon-deat superior.*35 Am. Jur., Master and Servant, Sec. 539.

It would seem from what we have said that tbe challenged instructions must be held for error in eliminating from tbe case tbe doctrine of *respon-deat superior.*

Tbe defendant seeks to sustain tbe instructions as given on tbe theory that tbe nonsuit as to Hanson, affirmed on former appeal on authority of *Byrd v. Hospital,*202 N.C. 337, 162 S.E. 738, relieves Dr. Joyner from liability for any act or omission connected with tbe conduct of nurse *262Hanson in administering tbe anaesthetic, and such is urged to be the law of the ease.

The contention would seem to be without merit, but it calls for an analysis of the decision in *Byrd v. Ho.spital, supra.*There, the action was against the lessee of a hospital and a staff nurse. The attending physician was not sued. The evidence disclosed that the alleged acts of negligence of the nurse were committed in administering a heat treatment to a patient while the physician in charge was standing by directing the mode of treatment and impliedly approving the treatment as given by the nurse. The treatment was not obviously or inherently dangerous. It was there held that the nurse was justified in assuming that the treatment, administered in the presence of the physician, was proper under the circumstances, and it was further held that the treatment so administered was deemed the treatment of the physician and not of the nurse, and that nonsuit should have been allowed.

In short, *Byrd v. Hospital, supra,*holds that as between patient and nurse, the nurse who follows the orders of the physician or surgeon in charge is not ordinarily liable if injury results from the treatment as prescribed. But nothing is said in the *Byrd case*to justify the contention that exoneration of the nurse, *ipso facto,*immunizes the physician in charge.

On the contrary, the rationale of the decision in the *Byrd case*is, not that nonsuit as to the nurse immunizes the physician, but rather, if the acts and omissions complained of be negligent, they then are referable and imputable to the true author thereof, the physician who directed or suffered the negligent conduct through the instrumentality of an agent under his control, and that therefore the physician alone is responsible and liable therefor.

Further, it is to be observed that the principle announced in the *Byrd case*stands as an exception to the general rule that an agent who does a tortuous act is not relieved from liability by the fact that he acted at the command or under the direction of his principal. 2 Am. Jur., Agency, Sections 324 and 326.

But be that as it may, the decision on former ¿ppeal, based on-the Byrd decision, may not be invoked for the purpose of limiting the liability, if any, of Dr. Joyner or restricting the scope of the issue of negligence as to him. The principle upon which the decision in the *Byrd case*was made to turn has no bearing on the issue of negligence as to Dr. Joyner and furnishes no criterion by which to determine the question of his liability. It follows, then, that the evidence which was adduced below, including that which was substantially the same as on first trial and also the new evidence offered on the retrial, should have been evaluated in the light of the general rules governing the doctrine of *respondeat superior.*

*263■ We have also considered the defendant’s further contention that if there be errors in the instructions they were harmless. Here the defendant urges that there is neither allegation nor proof to support any finding of negligence against Dr. Joyner based on negligent acts or omissions of Hanson. The record impels the other view. The gravamen of the complaint is that this was an anaesthetic death. There is specific allegation that Dr. Joyner permitted an overdose of ether or anaesthesia to be administered by Hanson. The evidence offered at the first trial, which we held to be sufficient to make out a *prima, facie*case of actionable negligence, was substantially re-offered at the second hearing. (See statement of facts in connection with the decision on former appeal — 234 N.C. 222.) Also, on retrial, substantial new evidence was offered tending to show actionable negligence of the defendant based on the conduct of nurse Hanson. However, with the case going back for retrial, we refrain from recapitulating or discussing this evidence in detail. It suffices to say a considerable portion of such evidence was elicited from defense witnesses.

Since errors in the charge necessitate a new trial, we deem it proper to direct attention to another group of exceptions which seem to be worthy of consideration. These relate to the testimony of a number of medical experts placed on the stand by the defendant. The exceptions challenge both the form of hypothetical questions propounded to the witnesses and the answers given by them. The question propounded to Dr. Louis Griffith will suffice to illustrate this group of exceptions:

> “Q. If the jury should find from the evidence in this case and by its greater weight that Dr. Joyner performed a tonsillectomy operation on Judith Jackson, . . . (then follows a three-page gist of the defendant’s evidence, relating numerous visits of Dr. Joyner to the bedside of the child beginning about fifteen minutes after she was taken to the hospital room following the operation and running through the rest of the day and night until she died, and giving the details of the treatment and care of the child by Dr. Joyner and the nurses during this period) . . . have you an opinion satisfactory to yourself as to whether or not the actions of Dr. Joyner in his treatment and care of this patient after post-operation and the conditions under which she was kept and observed during that time would constitute a reasonable degree of care to be exercised by a diligent physician on a patient following a tonsillectomy ?

> “Objection by plaintiff. Overruled. Exception.

> “A. Yes, I have an opinion.

> “Q. What is that opinion, Doctor?

> “A. My opinion is that the child had meticulous care.

> “Motion by plaintiff’s counsel to strike out the answer and instruct the jury not to consider the answer. Motion denied. Exception.

> *264“Q. Doctor, will you please define to the jury what you mean by 'meticulous’ care?

> “A. "Well, in my estimation . . .

> “Q. In your opinion, doctor ?

> “A. Yes, in my opinion. That was just a mistake on my part, my opinion — in my opinion no patient could have had better care than that patient had.

> “Motion to strike. Denied. Exception.

> “Q. That is assuming the facts to be as recited in the question ?

> “Objection.

> “A. Yes, that is it exactly.

> “Motion to strike. Denied. Exception.”

Instead of asking the witness whether in his opinion the treatment outlined in the hypothetical question constitutes “a reasonable degree of care to be exercised by a diligent physician,” it would seem to be the better practice, more nearly in accord with approved precedents, to let the witness say whether in his opinion the treatment and care given, as outlined in the hypothetical question, was in conformity with approved medical practices and treatment in the same locality, thus leaving it for the jury to draw from the evidence its own inference as to whether the physician exercised reasonable care in applying his professional knowledge and skill to the patient’s case. See Stansbury, North Carolina Law of Evidence, Sec. 137; 32 C.J.S., Evidence, Sec. 534 (4) ; 20 Am. Jur., Evidence, Sec. 787 *et seq.;*58 Am. Jur., Witnesses, Sec. 851 *et seq. Cf.*Wigmore on Evidence, Third Ed., Vol. 11, Sections 672 to 686.

It is also noted that this witness’ answer, in addition to being unresponsive to the question, was highly argumentative.

New trial.