Bain v. Self Memorial Hosp.

Decision Date26 January 1984
Docket NumberNo. 0127,0127
Citation314 S.E.2d 603,281 S.C. 138
CourtSouth Carolina Court of Appeals
PartiesLloyd Winston BAIN, Executor of the Estate of Nannie S. Bain, Appellant, v. SELF MEMORIAL HOSPITAL, Respondent. . Heard

A. Camden Lewis, of Barnes & Austin, Columbia, and Robert C. Lake, Jr., Whitmire, for appellant.

Robert M. Erwin, Jr., of Burns, McDonald, Bradford, Erwin & Patrick, Greenwood, for respondent.

SANDERS, Chief Judge:

This is a wrongful death action by the executor of the estate of Nannie S. Bain, appellant, against Self Memorial Hospital, respondent. The trial judge excluded certain testimony offered by appellant as being hearsay and ordered nonsuit in favor of respondent. We reverse.


We first address the argument of the Hospital that this appeal should be dismissed for lack of appellate jurisdiction. The Hospital argues that an order for nonsuit is not a final determination of a case on its merits because it is not a bar to further litigation and, for this reason, is not appealable.

While this argument has apparently not been presented recently, our Supreme Court has in the past ruled that an order granting a nonsuit is appealable. Bowen v. Johnston, 87 S.C. 264, 69 S.E. 294 (1910); Sims v. Southern Ry. Co., 66 S.C. 520, 45 S.E. 90 (1903); The American Publishing and Engraving Co. v. Gibbes & Co., 59 S.C. 215, 37 S.E. 753 (1900). Since that time, appeals from orders granting nonsuits have been routinely heard and ruled upon. See e.g. Associate Management, Inc. v. E.D. Sauls Construction Company, 279 S.C. 219, 305 S.E.2d 236 (1983); Fielding Home for Funerals v. Public Savings Life Insurance Company, 271 S.C. 117, 245 S.E.2d 238 (1978); Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972).

The trial judge here ordered nonsuit based on an insufficiency of evidence. Counsel represented to the court that no other evidence was available and appealed, contending the trial judge was in error as a matter of law. In addition, appeal is taken to the ruling of the trial judge excluding certain evidence, which if received, would be sufficient for the case to proceed past nonsuit.

Section 14-3-330 of the 1976 Code of Laws of South Carolina provides appellate jurisdiction for correction of errors of law and directs review on appeal of:

(2) An order affecting a substantial right made in an action when such order (a) in effect determines the action and prevents a judgment from which an appeal might be taken or discontinues the action....

Obviously, the nonsuit ordered in this case has the effect of both determining the wrongful death action of Mrs. Bain's executor and preventing a judgment, as well as discontinuing the action. For these reasons, we hold that the order of the trial judge granting nonsuit in favor of the Hospital is appealable.


We next address the contention of Mrs. Bain's executor that the trial judge erred in failing to apply the doctrine of res ipsa loquitur in this case. Adoption of this doctrine was recently considered by our Supreme Court and rejected. Legette v. Smith, 265 S.C. 573, 220 S.E.2d 429 (1975). Counsel in that case applied for and obtained the right to argue against prior decisions refusing to adopt the doctrine. The court reconsidered its previous views and adhered to them.

Where the law has been recently addressed by our Supreme Court and is unmistakably clear, this court has no authority to change it. Shea v. S.C. Department of Mental Health, 310 S.E.2d 819 (1983). For this reason, we must decline adoption of the doctrine here.


We now turn to the grounds of appeal relating to the facts of this case and the law applicable to these facts.

On November 5, 1977, Mrs. Bain entered the Hospital for the evaluation and treatment of an acute "inferior infarction." The Hospital undertook the duty to nurse, care for and attend to her during her stay and was charged with the duty of exercising reasonable care toward her. On November 6, 1977, Mrs. Bain was moved to a coronary care unit of the Hospital where she remained until her death on November 13, 1977. Mrs. Bain was an elderly lady. She was kept under sedation in the coronary care unit where her mental and physical condition was observed as being groggy, drowsy, confused, lethargic, almost stuperous, restless, disoriented, hostile and agitated. On numerous occasions, she tried to crawl or climb out of her bed.

All of the foregoing facts are alleged by the complaint of Mrs. Bain's executor and admitted by the Hospital in its answer. In addition to these facts, certain hospital records relating to Mrs. Bain were admitted into evidence without objection as joint exhibits of both parties.

These records confirm Mrs. Bain's mental and physical condition as alleged generally by the pleadings for the period November 7-12, 1977. The records also reflect she engaged in inappropriate conversation, called out and sometimes refused medication. Significantly, the records for every day but one, record that she tried to get out of bed or "crawl" or "climb" out of bed and, at one point, was "dangling over the side."

The records for November 13, 1977, the last day of her life, note Mrs. Bain was very confused, calling out, yelling and screaming, and again tried to crawl out of bed.

Beginning with the notation appearing for November 13, 1977, at 9:05 p.m., the following is a direct quotation from these records:

9:05 Assisted up into bed--Resp. became rapid, then slowed & eyes rolled back--pupils dilated--CPR began--Dr. Mobley here--Atropine 1 mg IV p rate--(illegible)--H.R.--p Atropine but no effective beats--No resp. of own--CPR d/c per order Dr. Mobley--Pt. pronounced expired by Dr. Mobley. Dr. Allred notified--

9:25: Dr. Allred here & husband called.

10:00 p.m.: Body & personal effects to morgue.

(Symbols omitted.)

In addition to notations by nurses and other hospital personnel, the records contain entries in the name of one "Allred." (The record otherwise reveals that Dr. David P. Allred was one of Mrs. Bain's physicians while she was in the Hospital.) The following is a direct quotation of this part of the record for November 13, 1977:

Confused during day & suddenly more agitated & sat up & crawled out of bed but suddenly collapsed (illegible) pulses & CPR unsuccessful. Rupture most likely related to infarct (illegible) steroids. Dr. Mobley assisted.

Mrs. Bain's executor also offered a pretrial deposition of Mrs. Bain's husband who had himself died prior to trial. The following is a direct quotation of the pertinent part of Mr. Bain's testimony taken from this deposition in which he relates the contents of the telephone call he testified that he received from Dr. Allred on November 13, 1977, at approximately 9:30 p.m.:

Q. What if anything did Dr. Allred say to you concerning your wife?

A. Well, when he started talking to me, he told me he was sorry to have to inform me that my wife had just passed away and it kind of shocked me a little bit but I asked him, I said, "She was getting along so good today." I said, "What happened?" I said, "She was getting along real good." He said, "Well Mr. Bain, you know she had something wrong with her heart, you know she was a little confused." I said, "Yeah, but what happened?" He said, "She crawled out of the bed, Mr. Bain and the jolt from the fall bursted her heart."

The Hospital objected to this testimony of Mr. Bain. The trial judge excluded it as hearsay and granted nonsuit in favor of the Hospital.


Mrs. Bain's executor argues first that the hospital records alone contain sufficient circumstantial evidence from which the jury could have inferred the Hospital was negligent, and the case should have been submitted to the jury. He cites in support of his position, the cases of Howell v. Hairston, 261 S.C. 292, 199 S.E.2d 766 (1973) and Childers v. Gas Lines, Inc., 248 S.C. 316, 149 S.E.2d 761 (1966). Howell stands for the proposition that negligence can be proved by circumstantial evidence. Childers holds that:

"When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident rose from a want of care." Id. at 323-324, 149 S.E.2d at 764.

In our view, this evidence is sufficient for the jury to have inferred that the Hospital was negligent. Mrs. Bain was an elderly and extremely ill woman. The Hospital admits that it undertook the duty to take care of her and exercise reasonable care in doing so. She was not able to think rationally and over the course of five days tried to get out of bed or "crawl" or "climb" out of bed on numerous occasions. On one occasion, she was observed dangling over the side of the bed. On the sixth day, she was allowed to get out of the bed somehow and had to be "assisted back up into bed," whereupon she immediately died. (While the hospital record of November 13 does not specifically say that Mrs. Bain was out of the bed, this can be inferred from the notation "assisted back up into bed.")

In ruling on a motion for involuntary nonsuit, the evidence must be viewed in the light most favorable to the party resisting the motion. If more than one inference can be drawn from the evidence, the motion must be denied. Associates Management.

However, even though inferences of negligence by the Hospital may be drawn from the hospital records, there is nothing contained in this evidence from which it can be inferred, circumstantially or otherwise, that the negligence of the Hospital resulted in Mrs. Bain's death. In other words, the hospital records, standing alone, are devoid of even an inference that the event of Mrs. Bain's being out of the bed was the proximate cause of her dying. There is no evidence in these records that this was the "thing which caused injury" as required...

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