129 Va. 576 | Va. | 1921
after making the foregoing statement, delivered the following opinion of the court:
The questions presented for our decision by the assignments of error will be disposed of in their order as stated below.
This question must be answered in the affirmative.
The cases of Lynchburg Traction Co. v. Guill, 107 Va. 94-5, 57 S. E. 644; Newport News, etc. Co. v. Nicolopoolos, 109 Va. 168, 63 S. E. 443; and Hunter v. Burroughs, 123 Va. 128-9, 96 S. E. 360, are cited and relied on for the hospital as sustaining the position that the declaration in the case in judgment does not contain the essential allegations of fact required by the rule of the Virginia decisions aforesaid.
And looking merely to the declaration, in our view of it, it is valid under the rule above referred to. As is said in the opinion of this court in Houston v. Lynchburg T. & L. Co., 119 Va. 136, 89 S. E. 114, delivered by Judge Kelly:
The first count of the declaration alleges the situation and circumstances surrounding the plaintiff from which the duty of the hospital arose, the breach of which is alleged as giving rise to the cause of action; and with respect to the conduct of the hospital which is relied on as constituting such breach of duty, this count of the declaration alleges that the injury was caused by the conduct of the servants of the hospital in the application of the hot water bags to the back of the plaintiff, stating the nature and extent of the injury, and alleging that such conduct of such servants, with such result, constituted actionable negligence for which the hospital is liable in damages to the plaintiff. The second count is substantially the same in its allegations, except that the conduct of the hospital alleged as constituting the breach of its duty is the allowing, i. e., the omission to prevent, the application of the hot water bags to the back of the plaintiff by the servants of the hospital.
We think that both counts of the declaration allege such facts as to show that the accident was not one that would ordinarily have occurred if the hospital (or what is the same thing, its servants having care of the plaintiff) had exercised reasonable care. It seems plain to us that a burn of such character and extent, under such circumstances, would not have occurred unless the person having the care of the patient had been guilty of negligence in the matter of the application or removal of the hot water bag or bags which caused the burn. The declaration notified the hospital that the demand of the plaintiff was based on the charge that the conduct of the servants of the hospital, who had the care of the plaintiff, was in the matter in question neg
Such being our conclusion, it is unnecessary for us to construe the new provisions of the statute referred to in the question above stated. (Code 1919, sec. 6118), and we, therefore, express no opinion on that subject at this time.
This question must be answered in the affirmative.
Of the evidence we deem it sufficient to say that, while conflicting on the subject under consideration, there was ample testimony to warrant the jury in concluding that a hot water bag was negligently placed at the back of the plaintiff, by the attending nurse, a servant of the hospital,
This question must be answered in the affirmative.
The matters in question now under consideration involve the issues of whether the plaintiff, or Dr. Henson, who was employed by the plaintiff, or others who were employed by the plaintiff, were guilty of a lack of ordinary or reasonable care in the treatment of the burn after it occurred, and of whether, if there was such lack of care, it was the whole cause of the condition of plaintiff’s back and suffering aforesaid.
We deem it sufficient to say on this subject that the lack of care in question does not affirmatively appear from the evidence for the plaintiff. The most that could be said is that the evidence for the plaintiff does not exclude the possibility that such lack of care might have existed. There is, however, in the evidence for the plaintiff and for the hospital, testimony to the effect that, after the wound from the burn had on two occasions entirely healed, the tissues subsequently broke down and ulcerated, which warranted the jury in inferring that the breaking down of the tissues at other times and the condition of the back of the plaintiff and his loss and suffering aforesaid were due to the recurring breaking down of the tissues caused by the lasting effects of the burn, and not to any infection from lack of care in its treatment at any time. And with respect to the testimony for the hospital on this subject this is true: It introduced two physicians, who are distinguished experts, and neither of them testified to the opinion, nor was there any testimony for the hospital tending to show the affirma
This question must be answered in the negative.
(a). The hospital complains of the refusal of the trial court to give instruction No. 1 asked by the hospital, which is copied in the statement preceding this opinion.
This instruction as asked was predicated on the assumption that the plaintiff was seeking to hold the hospital liable for some negligence of the physician or nurses mentioned in failing to take proper precautions to protect the injured or burned place on the plaintiff’s back. This assumption is negatived by the plaintiff’s declaration and it would have misled the jury to give them such an instruction, by diverting attention to an issue not in the case.
(e). The hospital complains of instruction No. 1, as given on motion of the plaintiff, as being “a general abstract statement of certain duties of the defendant, with no reference whatever to the cause of action set out in the decía
The sole remaining question for our consideration is the . following:
5. Did the court below err in not setting aside the verdict on the ground that it was excessive?
This question must be answered in the negative.
The position of the hospital on this subject as set forth in the petition, is, in substance and as presently quoted in part, that the evidence shows that the plaintiff was, (a) guilty of lack of ordinary care in having his wound treated, and (b) that the Johns-Hopkins expert witnesses for plaintiff, who examined him in October, 1919, shortly previous to the trial in the lower court (which took place in January, 1920), testified that the wound on plaintiff’s back “should then, with proper treatment, have been healed in the course of a week at a cost of $100.00 and hospital fees,” and “that
With respect to the position (a), just mentioned, we find no merit in it for the reasons given in connection with question 3 above considered.
The case will be affirmed.
Affirmed.