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Shepard v. Sisters of Providence6/20/1990
COURT OF APPEALS OF OREGON
CA No. A60886
1990.OR.40818 ; 102 Or. App. 196; 793 P.2d 1384
June 20, 1990
WANDA MAE SHEPARD, APPELLANT,
v.
SISTERS OF PROVIDENCE IN OREGON, DBA ST. VINCENT HOSPITAL AND MEDICAL CENTER, RESPONDENT, AND NATHANIEL D. WILSON, M.D., NATHANIEL D. WILSON, M.D., P.C., ROBERT J. CONDON, M.D., ROBERT J. CONDON, M.D., P.C., DEFENDANTS
Appeal from Circuit Court, Multnomah County. Robert P. Jones, Judge. No. A8401-00175.
James C. Tait, Oregon City, argued the cause and filed the briefs for appellant.
Carrell F. Bradley, Hillsboro, argued the cause for respondent. With him on the brief was Larry A. Brisbee, Hillsboro.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Richardson
The issue in this medical malpractice action is whether Dr. Teply, a surgical resident whose negligence injured plaintiff during an operation at defendant hospital, was the hospital's agent for purposes of the operation, making the hospital vicariously liable for the injury. Plaintiff contends that he was, and the hospital argues, inter alia, that he was instead the agent of the University of Oregon Health Sciences Center (university). Teply was an employee of the university, but was assigned to the hospital pursuant to an affiliation program and agreement. In Shepard v. Sisters of Providence, 89 Or App 579, 750 P2d 500 (1988), we affirmed the trial court's order allowing plaintiff a new trial, because of errors pertaining to jury instructions on agency at the first trial. Plaintiff now appeals from the judgment for the hospital in the second trial. We affirm.
We explained in Shepard v. Sisters of Providence, supra:
"The participating residents are employed by university which assigns them, on a rotating basis, to hospitals with which it has affiliation agreements. Each participating hospital must designate a head of the integrated program. That role at defendant hospital is performed by the director of hospital's department of surgery, who is a salaried hospital employe. Hospital's associate administrator testified that, notwithstanding university's primary responsibility for the supervision and professional development of residents in the program, hospital's director of surgery supervises the residents, reviews their work and criticizes their work 'if that's necessary.' For purposes of the program, hospital's director of surgery is a member of university's surgery faculty.
"Residents perform their services under the immediate supervision and direction of individual physicians, usually private practitioners, who have surgical privileges at and are members of the medical staffs of participating hospitals. Those physicians are denominated 'preceptors,' and they must either be university faculty members or be approved as preceptors by the chairman of university's department of surgery. [Dr.] Wilson was acting as Teply's preceptor in connection with plaintiff's operation. Teply was the chief surgical resident at hospital. It was his responsibility to assign residents to preceptors for particular procedures. He assigned himself to assist Wilson in the surgery on plaintiff.
"* * *
"The agreement between university and hospital contains these provisions:
"'Nothing contained in this agreement shall be construed to limit in any way the responsibility of the Hospital for the establishment of its
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