Ball Memorial Hospital v. Freeman

• Decision Date: 19 February 1964
• Docket Number: No. 30318,30318
• Citation: 196 N.E.2d 274,245 Ind. 71,9 A.L.R.3d 567
• Parties: , 9 A.L.R.3d 567 BALL MEMORIAL HOSPITAL, Appellant, v. John FREEMAN, Appellee.
• Court: Indiana Supreme Court

Page 274

196 N.E.2d 274

245 Ind. 71, 9 A.L.R.3d 567

BALL MEMORIAL HOSPITAL, Appellant, v. John FREEMAN, Appellee.

No. 30318.

Supreme Court of Indiana.

Feb. 19, 1964.

Dissenting Opinion Feb. 21, 1964.

Marshall E. Hanley, Bracken, De Fur, Voran & Hanley, Muncie, William R. Hunter, Mendenhall, Hunter & Stohler, Winchester, for appellant.

Frank E. Gilkison, Jr., White, Haymond, Pierce & Beasley, Muncie, John E. Bales, Wilson & Bales, Winchester, for appellee.

LANDIS, Chief Justice.

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 appellant-hospital being a charitable corporation, could not be liable for the negligence alleged in this case.

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 appellee 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 appellee 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.

Appellee contends that since, under prior decisions of this state and elsewhere, a charitable corporation has been held liable for a failure to exercise due care in the selection of its employees as a result of which injury or damage has occurred, that similarly a charitable hospital corporation is liable for negligence in failing to employ proper instrumentalities and facilities in the preparation, bottling and dispensing of drugs as a result of which injury to patients has occurred.

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 & 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. Mountainside Hospital (1944), 22 N.J.Misc. 72, 35 A.2d 701;

Clampett v. Sisters of Charity etc. (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 of an administrative duty in failing to have a fresh morphine solution available.

Similarly, in Medical & Surgical Memorial Hospital v. Cauthorn, supra, the plaintiff recovered a jury verdict for the negligence of the defendant-charitable corporation in furnishing a defective that 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 agents 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 appliances 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, Ann.Cases 17A, 474, 476;

Union Traction Co. of Indiana 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 behind by a car operated by another company, but plaintiff brought suit against the company operating the car in which she was a passenger. There being no state of facts in such case which suggested plaintiff's carrier appeared to have been negligent, the doctrine obviously did not apply.

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 purchased crystals. The hospital pharmacist who testified for appellant stated the procaine crystals were purchased in five pound packages, lasting about one year. The evidence further showed eight instances of injuries from...