BALL MEMORIAL HOSPITAL v. FREEMAN
No. 30,318
Supreme Court of Indiana
February 19, 1964
Dissenting opinion filed February 21, 1964
71
Frank E. Gilkison, Jr., White, Haymond, Pierce & Beasley, of Muncie, John E. Bales, and Wilson & Bales, of Winchester, for appellee.
LANDIS, C. J.---This was an action against appellant-hospital, a charitable corporation, for personal injuries received by appellee while a patient at such hospital. Appellee recovered a judgment upon a jury‘s verdict in the amount of $7,500.00.
Appellant‘s first contention on this appeal is that
Appellee‘s complaint alleged in substance that appellee as a paying out-patient was operated upon in appellant-hospital to have a loose cartilege removed from a joint of his left thumb. That in the course of said operation there was injected into appellee‘s left thumb by the surgeon a fluid appellant had prepared, placed in a container, and labeled as novocaine anesthetic, which appellant had delivered to appеllee with knowledge the fluid would be used by appellee as a novocaine anesthetic and injected into his body. That the fluid was not a novocaine anesthetic, but was a poisonous and deleterious fluid, the composition of which was known to appellant but not to appellee. That said fluid was prepared, placed in a container and labeled by an employee of appellant, one Ruth Rossi. That said fluid was delivered to appellee by an employee of appellant. That said fluid caused great pain and swelling to appellee‘s left hand and arm and caused an ulcer at the base of appellee‘s left thumb necessitating skin graft operations upon appellee, and the removal of a nerve. That as a result, appellee sustained permanent scars and impairment to specified parts of his body and also medical expense and loss of earnings.
It was further alleged the injuries to aрpellee were proximately caused by appellant‘s negligence in improperly arranging the method or system for the preparation and dispensing of novocaine solution so as to see that the preparation dispensed to the surgeon for appellee was in fact novocaine.
Wherefore appellee demanded judgment for $25,000 damages, etc.
We believe appellee‘s position to be well taken, and note that it is generally supported by numerous authorities from other jurisdictions irrespective of whether such jurisdictions follow an immunity rule as to the liability of charitable corporations for torts. See: Volk v. City of New York (1940), 284 N.Y. 279, 30 N. E. 2d 596; Holtfoth v. Rochester Gen. Hosp. (1952), 304 N.Y. 27, 105 N. E. 2d 610, 612, 31 A. L. R. 2d 1113; Medical and Surgical Memorial Hospital v. Cauthorn (1950, Texas Civ. App.), 229 S. W. 2d 932; Evans v. Lawrence & Memorial Associated Hospitals (1946), 133 Conn. 311, 50 A. 2d 443; Fields v. The Mountainside Hospital (1944), 22 N. J. Misc. 72, 35 A. 2d 701; Clampett v. Sisters of Charity (1943), 17 Wash. 2d 652, 136 P. 2d 729.
In Volk v. City of New York, supra, plaintiff was a patient in defendant-hospital and was treated with decomposed morphine solution, causing the loss of use of an arm. Plaintiff charged the defendant with corporate or administrative negligence in making available decomposed medical supplies. The supervisor knew the decomposed morphine was among the medical supplies and that it was not to be used, but did nothing. The Court of Appeals of New York held the defendant-charitable corporation liable for negligence in the performance
Similarly, in Medical and Surgical Memorial Hospital v. Cauthorn, supra, the plaintiff recovered a jury verdict for the negligence of the defendant-charitable corporation in furnishing a defective heat cradle or lamp. In affirming the judgment of the trial court the Texas Court of Civil Appeals, after recognizing that a charitable corporation may be liable for negligence in hiring or retention of employees, said at p. 934 of 229 S. W. 2d:
“... It seems it must follow as a matter of course a hospital is liable to a patient for the failure to provide proper and safe instrumentalities for the treatment of ailments it undertakes to treat, because such is in the conduct of the institution. The аgents and servants do not supply the instrumentalities. It is the institution that does that. Of course, it may not be said it must undertake to treat every ailment that comes but when it undertakes the treatment then it is incumbent upon it to supply suitable and safe applicances and instrumentalities. The ordinary patient submits himself without knowledge and without question of what may be proper and necessary. Such seems to be the conclusion reached by courts in other states holding as do our courts as above indicated. ...”
Appellant has further complained of error in the giving of instruction No. 11 which was as follows:
“When an accident happens, resulting in injury to a person, where it appears that the instrumentalities that caused it were unknown to such person and were under the exclusive control or management of the defendant, and the accident is such that under the ordinary course of things it would not occur if those who have control and management used reasonable and ordinary care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred
from the lack of reasonable and ordinary care. In such case the happening of the accident creates the presumption of negligence; on the face of it, it makes a case for the plaintiff because the thing is said to speak for itself. The defendant may then come forward with evidence to show that notwithstanding such presumption against him, the thing was not in fact caused by his negligence. Then the jury must weigh all the evidence on the subject, and finally determine whether the plaintiff has proved the negligence alleged in the complaint by the preponderance of the evidence.”
Appellant contends this instruction was based upon the theory of res ipsa loquitur and was erroneously given as the rule of res ipsa loquitur was not applicable under the facts of this case, citing: Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 599, 106 N. E. 365, 367; Union Traction Co. v. Mann (1919), 72 Ind. App. 50, 124 N. E. 510.
It is apparent to us, however, that the facts in the cited cases are entirely distinguishable from the case at bar.
In Prest-O-Lite, plaintiff was a workman employed by a contractor to build a building pursuant to plans and specifications prepared by an architect employed by the owner. The building collapsed during the process of construction, and plaintiff brought suit against the owner. It was clear in that case that the defendant owner did not have control over the construction of the building by plaintiff‘s employer, and that the circumstances did not indicate that in the ordinary experience of mankind the accident would not have happened unless the defendant had been negligent. The court therefore properly held res ipsa loquitur was not applicable. Similarly, in Union Traction, plaintiff was a passenger in a street car which was stopped and was struck from
In the case before us, the instrumentality which injured appellee was the solution prepared, stored and dispensed by appellant and delivered by it to appellee. It was not the procaine hydrochloride (novocaine) crystals (salt) which injured appellee, but rather the solution of which such crystals were only a part. Appellant, after obtaining such novocaine crystals from a commercial drug company, assumed complete dominion and control over them, and in fact changed their nature entirely by the manufacturing process of putting them into solution in various proportions with a saline solution, also prepared by appellant. The mere fact that the various ingredients of the solution, including the regular salt, the water, and the bottles, caps and tags used, as well as the procaine salt (novocaine) were purchased from someone else is insignificant when, according to the uncontradicted evidence, it is shown that appellant took these various components and by its own process changed their nature entirely and produced the commodity which caused the injury to appellee.
In fact if res ipsa loquitur did not apply to the case at bar it would be difficult to understand the basis of the landmark case of Byrne v. Boadle (1863), 2 H & C 722, 159 Eng. Reprint 299, which involved the barrel rolling out of the upper window of defendant‘s place of business and gave birth to the doctrine of res ipsa loquitur.
Appellant‘s own evidence in the present case negated any inference there was anything wrong with the pur
The only logical deductiоn from the evidence is that appellant was negligent with regard to the particular system it maintained for the preparation, storage and dispensing of the solution. Here the instrumentalities for injecting the solution, the syringe, the needle, and other equipment were furnished by appellant. The surgeon administering the solution to appellee did nothing to change its character and was merely a conduit to assure that it reached appellee in the place and manner intended. There was no allergic reaction to the novocaine solution in this case.
Appellant had complete control over the solution until it was given to appellee in the manner appellant intended, and the uncontradicted evidence negates any suggestion that the injuries were caused by someone else. This leaves but one inference, that appellant was guilty of negligence.
That this Court is further committed to the application of res ipsa loquitur in cаses such as the case at bar is evident from our recent opinion in New York, Chi., etc., R. R. Co. v. Henderson (1958), 237 Ind. 456, 146 N. E. 2d 531, 147 N. E. 2d 237 (opinion by Judge
“... Since then [the Byrne v. Boadle decision] the doctrine has been applied to train derailment cases, falling objects, surgical and dental operations and treatment resulting in unusual injuries, and failure of mechanical devices within the exclusive control of the defendant, among various other sеts of facts. As complicated mechanical devices of our modern age achieve greater perfection and greater reliance upon them is justified, it follows that the doctrine has a broader application than originally.”1 (Emphasis added.) See also: Knoefel v. Atkins (1907), 40 Ind. App. 428, 81 N. E. 600; Cleveland, etc., R. Co. v. Hadley (1908), 170 Ind. 204, 82 N. E. 1025, 16 L. R. A. (N. S.) 527; Kickels v. Fein (1937), 104 Ind. App. 606, 10 N. E. 2d 297; Sweeney v. Erving (1913), 228 U. S. 233, 240, 33 S. Ct. 416, 57 L ed. 815, 819.2
Although it is not necessary to a determination of this case, apрellant and appellee have devoted considerable argument in their briefs to the question of charitable immunity in view of the fact that appellant-hospital was a charitable corporation and under such doctrine would not generally be liable for its negligence in causing injury to patients. Appellant argues for the doctrine of charitable immunity, while appellee points out that in thirty-two jurisdictions in this country,3 the doctrine has now been repudiated and in still other states remedial legislation has been enacted.
While some of the wording contained in such statute indicates it is not a model of excellence in legislative draftsmanship, we believe legislation of this character should be encouraged to deal with the problem that exists in this area.
As heretofore indicated, in view of the result we have reached, it is not necessary to express any opinion as to whether the charitable immunity doctrine is or is not presently the law of this state.
The judgment of the lower court is affirmed.
Arterburn and Myers, JJ., concur; Achor, J., dissents with opinion; Jackson, J., dissents without opinion.
DISSENTING OPINION
ACHOR, J.---I do not concur in the majority opinion for several reasons.
One: Although the majority opinion purports “not at this time to express any opinion as to whether the charitable immunity doctrine is or is not the law of this
Two: The majority opinion purports to support the decision therein upon the proposition of law that a charitable hospital corporation is liable for the negligence of persons in a managerial or supervisory capacity in failing to employ proper instrumentalities and facilities, as a result of which injury or damage occurs to a patient. However, the majority opinion cites no evidence of any negligence on the part of any person in a managerial or supervisory capacity with regard to such “instrumentalities and facilities,” which are alleged to have resulted in injury to the patient. In fact, the evidence recited negates any negligence on the part of such persons. The negligence, if any, was in the preparation of the purported novocaine anesthetic, and this, the majority opinion states, “was prepared, placed in a container and labelled by an employee of appellant,” and was delivered to the doctor for injection by another employee. [My emphasis.] In my opinion, these facts clearly distinguish the case at bar from those cited and relied upon in the majority opinion.
Upon this proposition, the majоrity opinion cites and quotes, with approval, from the case of Medical and Surgical Memorial Hospital v. Cauthorn (1950, Texas Civ. App.), 229 S. W. 2d 932. However, in that case the court clearly distinguished the circumstances under which a hospital, as distinguished from its agents and servants, would be held liable for negligence. The court stated:
“... [A] hospital is liable to a patient for the failure to provide proper and safe instrumentalities for the treatment of ailments it undertakes to treat, because such is in the conduct of the institu
tion. The agents and servants do not supply the instrumentalities. It is the institution that does that. ...” [My emphasis.]
As previously noted, in the case at bar the majority opinion recites no evidence that anyone connected with the management of the hospital was negligent in either the procuring or processing of the novocaine, which is alleged to have injured the patient. To the contrary, it occurs to me that the only reasonable inference which may be drawn from the evidence is that, if there was negligence or error in the processing of the novocaine, such negligence or error was solely that of the “agents and servants” of the hospital, for which, under the prior decisions of this state, the institution itself is not liable.1
Three: My strongest objection to the majority opinion is that it not only affirms a judgment in damages against a charitable hospital for error or negligence, which is assumed to have existed on the part of the agents and servants of the hospital, the majority opinion resorts to an application of thе doctrine of res ipsa loquitur to establish an inference or presumption that there was any negligence at all on the part of the hospital or its agents and servants. It is my opinion that the application of the doctrine, under the circumstances of the case, was error. And, further, I fail to comprehend how the doctrine of res ipsa loquitur can be applied without abrogating the charitable immunities doctrine, since under the doctrine of res ipsa loquitur no issue is contemplated as to whether the negligence presumed is that of an employee as distinguished from that of his respondeat superior.
The care and treatment of the patients involves first, and foremost, the doctor, over whom the hospital has very little control. There are interns, over whom the hospital may have more, but very little, control. There are nurses, upon whom the hospital must rely primarily for the care аnd treatment of the patients. Yet, the nurses are also under the control of the doctors whose patients are the patients of the hospital. Then, there are student nurses, nurses’ aids, practical nurses, volunteers, orderlies, a veritable galaxy of human personalities of varying skills, upon whom the hospital must rely.
Consider the human errors which might reasonably result in the limited area of the communication between doctor and nurse, over which the hospital would
Similar errors, rooted in human frailty, might occur when a nurse calls a doctor by ‘phone regarding the cоndition of a patient and medication is on an oral or telephone order. For example, a doctor may say castor oil, but a nurse hears camphor oil. He says 15 milligrams of a drug, but she understands it as 50 milligrams. He says argyrol; she interprets it as agoral. He says pavatrine; she hears it as papaverine. He says signemycin, she hears it as sigmagen.
To complicate all this, there is the unremitting pressure of a shortage of nurses and the multiplicity of new drugs, and of patients. The nurse has incrеasingly little time to handle her duties, yet, she must know much more about many more drugs than ever before. In the ten-year period from 1951 through 1960, it is said that an average of 357 new drugs and 106 new dosage forms (ampules, for example, instead of tablets) were produced every year. It has been estimated that three out of every four prescriptions written today are for drugs and drug forms that did not exist 25 years ago. It is difficult enough for trained pharmacists to keep pace with all the new drugs and their uses. It is still more difficult for nurses, who have many other duties besides their pharmacy work which they are required to do as professionals, in the employ of hospitals.
Too, there is the known fact that the human body is such that it responds differently to the same medication and treatment. Thus, untoward results frequently occur, which are beyond еxplanation.
The above are only a few circumstances and reasons which, in my opinion, demonstrate that even though a charitable hospital may be held liable for the negligence of persons in a managerial or supervisory capacities for their failure to provide proper instrumentalities used in the operation of a hospital, the hospital cannot be held liable for the negligence of all its agents and servants, over many of whom it has only limited control; and there is much less reason, grounded upon both public policy and the rules of evidence, why such hospitals should be charged with the burden of proving their lack of negligence, under the doctrine of res ipsa loquitur, merely because a patient experiences an untoward result from his care and treatment.
Four: Finally, in my opinion, if the rule of liability as applied to charitable hospitals is to be so drastically changed, the change in public policy should be effectеd
NOTE.---Reported in 196 N. E. 2d 274.