Campbell v. Thornton
| Decision Date | 26 August 1975 |
| Citation | 368 Mass. 528,333 N.E.2d 442 |
| Parties | Richard A. CAMPBELL, administrator v. Clarence E. THORNTON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Murphy, Boston, for plaintiff.
Lionel H. Perlo, Boston (Jacob J. Locke, Boston, with him), for defendants.
Before TAURO C. J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.
This is an appeal by the plaintiff from the following rulings and orders of a judge of the Superior Court in the course of the trial of an action of tort for alleged medical malpractice and other negligence causing the conscious suffering and death of the plaintiff's intestate: (a) orders directing the jury to return verdicts in favor of the defendants on counts 5 and 6 against Dr. Clarence E. Thornton and counts 9 and 10 against Dr. Nathaniel A. MacDonald, and (b) rulings excluding certain evidence offered by the plaintiff. The appeal before us involves only the four counts identified above. 1 We conclude that there was no error.
The plaintiff originally sought appellate review by way of a bill of exceptions filed on February 8, 1973. The bill had not been acted on by the judge by July 1, 1974, when the new Massachusetts Rules of Appellate Procedure took effect. Massachusetts Rule of Appellate Procedure 1A, --- Mass. --- (1974), provides in part: The appeal was originally entered in the Appeals Court and was then transferred to this court under the provisions of G.L. c. 211A, § 10(A), inserted by St.1972, c. 740, § 1.
This case arises out of the death on January 23, 1966, of the plaintiff's intestate, Martha Campbell (Martha), a child two years and eight months old, at the Hunt Memorial Hospital (hospital) where she was a patient under the care of Dr. Thornton. At that time Dr. MacDonald was the chief of the medical staff at the hospital. The plaintiff seeks to recover from Dr. Thornton in count 5 for the death of Martha, and in count 6 for her conscious suffering; and he seeks similar recovery from Dr. MacDonald in counts 9 and 10. The two counts against Dr. Thornton are based on 'the carelessness and negligence of the defendant . . . in the care of the plaintiff's intestate, and in the maintenance, design, repair and supervision of the premises of the said hospital and hospital equipment and appurtenances,' and alleged that the defendant had undertaken 'to faithfully, skillfully and diligently practice medicine on the plaintiff's intestate.' The two counts against Dr. MacDonald do not allege that he had undertaken to treat the plaintiff's intestate, otherwise they are the same as the counts against Dr. Thornton. Each defendant filed an answer consisting of a general denial and a claim that the plaintiff was guilty of contributory negligence.
Before moving to the serveral legal issues raised by this appeal, we summarize certain facts about which there appears to be little or no material disagreement. On the morning of Friday, January 21, 1966, Martha seemed to have a cold. Her mother (Mrs. Campbell) called Dr. Thornton who advised that she put Martha 'in steam for the day.' Dr. Thornton is a general practitioner in Danvers, and in the course of his general practice he treats children. Later that day Martha seemed much worse and Mrs. Campbell brought her to the doctor's office. The doctor prescribed penicillin and again advised that Martha be kept in a steam room. Martha's parents followed the doctor's advice but Martha was unable to take or hold her medication. Late in the evening of Saturday, January 22, 1966, as the result of a call from Mrs. Campbell, the doctor had Martha admitted to the hospital.
Dr. Thornton was present when Martha was admitted and placed in a 'fog room' located in the pediatric section of the hospital. She was placed in the crib in that room to relieve her respiratory difficulties. The crib was equipped with side rails which could be moved up or down. When Martha was placed in the crib she was dressed in a garment (jacket) provided by the hospital to be tied to the crib for the purpose of restraining her movement. The sides of the crib were then raised, and they remained in that position when Martha's parents left the room to return home. The hospital's 'Pediatric Procedures' then in effect included a provision stating that 'Bedsides on cribs of all children under 5 yrs. of age must be up and securely fastened at all times--unless someone is actually with the child.'
Martha's parents visited her on the afternoon of the following day, Sunday, January 23, 1966. When they arrived about 2 P.M. the bedsides on the crib were in a raised position and the strings of the restraining jacket were tied to the crib with the result that Martha could sit up but could not stand up, and could move very little from side to side. A nurse lowered one bedside all the way down. This was done at Mrs. Campbell's request to enable her to hold Martha. Mr. Campbell lowered the other bedside about halfway down. A nurse untied the strings of the restraining jacket. As the end of visiting hours (4 P.M.) approached, a nurse entered Martha's room to take her temperature and render her some other service. The restraining jacket strings were not then tied to the crib. The bedsides were as described above, one down and the other partially down. They remained that way when the parents left the room to return home, but before leaving Mrs. Campbell tied the strings of the restraining jacket to the crib. During her visit with Martha, Mrs. Campbell sat near the crib where the bedside had been lowered all the way. When she left the room to go home, she knew the bedside was down, but she did not raise it. Neither did she mention that fact or make any other statement to a nurse whom she saw across the corridor as she was leaving Martha's room. Martha was unattended when her mother left the room.
The nurse, who had not seen the parents leave, next went to Martha's room at 4:25 P.M. and found her hanging over the edge of the crib where the side was in a lowered position. Martha was held by the restraining jacket, with her feet not touching the floor. Her whole body was off the crib with her back against the lowered crib side, her arms over her head, and her head to one side. The jacket was at her neck and under her arms, but not over her head. Two strings from the jacket were still tied to the spring of the crib under the mattress. The nurse picked Martha up and put her on the bed and mouth to mouth respiration was tried without success. Martha was dead. The medical examiner, Dr. Dougald C. MacGillivaray, was called and arrived at the hospital about 4:45 P.M. He caused an autopsy to be performed and the cause of death was determined to be 'asphyxiation by strangulation.'
The nearest nurse's station was about fifteen feet distant from the outer door to the fog room. The outer door was a solid door which opened from the outside into a hall about ten feet in length and five feet in width. At the end of this hall was an inner door leading directly into the fog room. The inner door had a narrow window extending from about the middle level to the top of the door. A person standing at that door could look through the window and see Martha's crib. A nurse at the nearest nurse's station could not see into the fog room.
Like Dr. Thornton, Dr. MacDonald practiced in Danvers, specializing in internal medicine. He was connected with the hospital as chief of internal medicine from 1955 to 1961, and he had been chief of the medical staff from 1961 through the date of Martha's death. The duties of the chief of the medical staff, prescribed by the portion of the by-laws of the medical staff quoted in the margin of this opinion, 2 include the duty '(t)o concern himself with the overall quality of the patient care in the hospital.'
Dr. MacDonald knew that on January 23, 1966, and for some time prior thereto, the hospital had a set to rules and regulations entitled 'Pediatric Procedures' governing the admission, care and treatment of children under seventeen years of age in the hospital. He did not acquaint himself with those rules and regulations, delegating this matter to the chief of pediatrics at the hospital.
The fog room was in a wing which had been added to the hospital about one and one-half years before Martha's death, while Dr. MacDonald was the chief of the medical staff. The doctor had seen the plans for the new wing, but he had no function or authority with respect to the design of the wing. There was a building committee for the new wing, but the doctor was not a member of that committee. He had been in the new wing about five times a week after it was built, and knew of the location of the fog room in question.
The by-laws of the hospital provided that 'The Board of Trustees under the general direction and supervision of the Town Manager shall manage and conduct all business of the hospital relating to its management . . . including recommending the appointments of the Administrator and personnel.' Dr. MacDonald, the chief of the medical staff, did not personally hire or fire any nurses or other hospital personnel. The 'By-laws of the Medical Staff' provide that the chief of each of the services (cinical, surgery, medicine, obstetrics, and pediatrics) 'shall have the responsibility for . . . (t)he supervision of the care of patients in his service.'
Neither Mr. nor Mrs. Campbell ever requested Dr. MacDonald to examine or treat their daughter Martha, nor did either of them see the doctor do so. There was no evidence that the doctor ever did examine or treat Martha.
With regard to the...
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