                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3832
                                    ___________

Charles Scharf,                          *
                                         *
            Plaintiff-Appellant,         *
                                         *   Appeal from the United States
      v.                                 *   District Court for the Eastern
                                         *   District of Missouri.
Paul Zanaboni, M.D.,                     *
                                         *         [UNPUBLISHED]
            Defendant-Appellee.          *

                                    ___________

                             Submitted: September 10, 2002

                                   Filed: September 20, 2002
                                    ___________

Before BOWMAN, LAY, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Charles Scharf appeals from a grant of summary judgment in favor of Paul
Zanaboni, M.D. in this medical malpractice action. Mr. Scharf underwent coronary
artery bypass surgery on July 3, 1997, at St. Louis University Medical Center. He
was given general anesthesia during the surgery, which required that Mr. Scharf have
an endotracheal tube and nasogastric tube placed during the course of the procedure.
Dr. Paul Zanaboni was the attending anesthesiologist on duty that day. However, Mr.
Scharf’s anesthesia was initiated and administered by Dr. Samuel Singer, a resident
physician in anesthesiology. During the surgical procedure, Mr. Scharf suffered a
Mallory-Weiss tear of his esophagus. Mr. Scharf claims that his esophageal injury
occurred during negligent insertion of either an endotracheal tube or probe, or a
nasogastric tube, all of which were performed during his surgical procedure. The
plaintiff’s expert medical witness testified that the injury occurred near the end of the
surgery and it was at that time that the nasogastric tube had been inserted. It is
significant that Dr. Zanaboni was not in the operative suite at the time Dr. Singer
inserted the nasogastric tube. Mr. Scharf does not assert a vicarious liability claim,
nor does he claim that Dr. Singer was an employee of Dr. Zanaboni.

     On appeal Mr. Scharf asserts that the district court1 erred in granting summary
judgment on the issues of res ipsa loquitur and negligent supervision.

       The district court held that Mr. Scharf failed to prove that Dr. Zanaboni had
exclusive control of the instrumentality that caused the injury. To the contrary, the
evidence revealed that Dr. Singer had control over the instrumentality which was
alleged to have injured Mr. Scharf , because he inserted the nasogastric tube, and was
involved in initiating and administering Mr. Scharf’s anesthesia. The district court
correctly held that Mr. Scharf failed to meet his burden of establishing that Dr.
Zanaboni had exclusive control over the instrumentality, consequently the res ipsa
loquitur claim could not survive summary judgment. As to Mr. Scharf’s claim of
negligent supervision on the part of Dr. Zanaboni, the district court held that Mr.
Scharf presented no evidence to demonstrate that a genuine issue of material fact
exists that Dr. Zanaboni was negligent in his supervisory capacity. Therefore, Mr.
Scharf’s claim for negligent supervision could not survive summary judgment.

       We have reviewed the record and find the district court committed no error of
law.


       1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

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The district court is AFFIRMED. See, 8th Cir. R. 47B.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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