Barnes v. St. Francis Hospital & School of Nursing, Inc., 46546

• Decision Date: 03 March 1973
• Docket Number: No. 46546,46546
• Parties: Myrtle M. BARNES, Appellee, v. ST. FRANCIS HOSPITAL AND SCHOOL OF NURSING, INC., Appellant.
• Court: Kansas Supreme Court

Page 288

507 P.2d 288

211 Kan. 315

Myrtle M. BARNES, Appellee, v. ST. FRANCIS HOSPITAL AND SCHOOL OF NURSING, INC., Appellant.

No. 46546.

Supreme Court of Kansas.

March 3, 1973.

Syllabus by the Court

1. Under familiar principles of appellate procedure, a verdict is not to be set aside on appeal where it is supported by substantial competent evidence.

2. A witness who is qualified as a medical expert and has knowledge of the degree of care and skill employed by hospitals generally in the community where an injury has occurred and similar communities may testify concerning such matters even though he has not practiced medicine in the particular community involved. (Following Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013.)

3. The test of the competency of an expert witness is whether he has sufficient knowledge of the subject to entitle his opinion to go to the jury, and when such knowledge has been disclosed, the degree or depth of his knowledge goes to the weight rather than the admissibility of his testimony. (Following Avey v. St. Francis Hospital & School of Nursing, supra.)

4. Whether a witness is shown qualified to testify as an expert is generally for the determination of the trial court in the exercise of a sound judicial discretion.

5. The contemporaneous objection rule, which is codified in K.S.A. 60-404, requires that timely and specific objection be made to the admission of testimony before its admissibility will be considered on appeal.

6. Where an objection has been made to the admission of testimony at the trial on a ground held to be insufficient, this court on appeal will not consider another or different ground for such objection.

7. The taking of pretrial depositions is part of the discovery process authorized by K.S.A.1972 Supp. 60-226, and among the purposes to be served thereby is ascertaining what an adversary witness may know about matters in litigation and what his probable testimony will be, to the end that the element of surprise will be eliminated so far as possible.

8. Where a witness who has given a deposition knows that it was incorrect in whole or in part when made, or is no longer correct, he should seasonably amend or supplement the same, and in the absence of seasonable disclosure the trial court may in its sould discretion impose sanctions, including the exclusion of evidence.

9. Where a verdict is so excessive and out of proportion as to shock the conscience of the court and judgment has been entered thereon, and where no passion and prejudice appears other than the size of the verdict, this court on appeal may, on appropriate occasions, tentatively affirm the judgment, provided the plaintiff will accept a judgment for a lesser amount or in the absence of such an acceptance, reverse the judgment.

10. The record is examined in an action to recover damages from a hospital for injuries sustained by a patient during her stay therein, and for reasons disclosed in the record it is held (1) the verdict is supported by substantial competent evidence and the trial court did not err in overruling the defendant's motions for directed verdict and for judgment notwithstanding the verdict; (2) the trial court did not err in its rulings on the admissibility of evidence during the trial; and (3) the verdict is not so excessive as to justify a remittitur.

Richard A. Loyd, of Jochems, Sargent & Blaes, Wichita, argued the cause, and Robert L. Heath, Wichita, was with him on the brief for appellant.

Terry O'Keefe, of Kidwell, O'Keefe & Williamson, Wichita, argued the cause, and Walter C. Williamson, Wichita, was with him on the brief for appellee.

FONTRON, Justice:

The defendant, St. Francis Hospital and School of Nursing, Inc., has appealed from a $22,500 judgment rendered against it for personal injuries sustained by the plaintiff, Myrtle M. Barnes, while a patient in the hospital. The parties will be referred to as plaintiff or Mrs. Barnes, on the one side, and defendant and hospital, on the other.

On October 27, 1967, plaintiff was admitted to the St. Francis Hospital by her attending physician, Dr. Milbank, for a hemorrhoidectomy. She was operated the next day. Following surgery she developed a hard, sore, indurated area in the left buttock, which was medically diagnosed as fat necrosis. She was dismissed from the hospital November 6, and returned to the emergency room the next day where an incision was made under local anesthesia. On November 9, Mrs. Barnes was readmitted to the hospital and conservative treatment was administered. She was discharged charged and returned home November 28. Mrs. Barnes was again readmitted to the hospital on December 8. This time surgery was performed and plaintiff remained hospitalized until January 2, 1968.

Several points are raised on appeal. The first three relate to the trial court's failure to sustain motions for directed verdict in defendant's favor, while the fourth concerns the denial of a motion for judgment notwithstanding the verdict. In effect, these points raise a central question for us to determine: Is there substantial competent evidence to support the verdict? We address ourselves to this point.

Plaintiff's evidence tends to show that the fat necrosis, which we understand denotes the death of fatty tissue, was caused by an injection of dramamine (a drug for control of nausea) administered subcutaneously in the area of the left hip; that the correct way to administer the drug hypodermically is to inject it into the muscle, i. e., by intramuscular injection, where the absorption is better; that dramamine cannot safely be injected into the subcutaneous tissue, since it is an irritating substance and will cause the tissues to die; and that the injection of the drug subcutaneously is not good nursing procedure and falls below the degree of care and skill employed by hospitals generally in Wichita or similar communities.

In defense of the plaintiff's charges of negligent and unskillful care, the defendant contends that the nurse who administered the dramamine injection was simply carrying out an order improperly given by Mrs. Barnes' treating physician. Hence, the hospital maintains it cannot be held liable for damages unless negligence be established in giving the injection, or unless it be shown that the doctor's order was so obviously improper as would cause it or its employees to anticipate injury.

The doctor's order, placed over the phone, was for dramamine to be given hypodermically. The evidence reflects that 'hypodermically' means either subcutaneously or intramuscularly; that nurses are familiar with how different drugs are administered, and that nursing judgment has to be used in determining whether an injection should be given subcutaneously or intramuscularly where it has not been spelled out. Various nurses employed at the defendant hospital testified that dramamine, if given by needle, is to be administered deep, that is, intramuscularly; that it cannot be given subcutaneously because it is irritating; and that the doctor's order was given in the ordinary way, where the drug is as well known as dramamine. Indeed, we learn from the notes of the nurse who gave the injection that she charted it as having been given IM (intramuscularly).

We believe there is abundant evidence to establish knowledge on the part of the nursing staff that dramamine, if administered hypodermically, rather than orally, must be given intramuscularly, even though the doctor's order may not be specific on this point. There is also evidence from which a reasonable inference may be drawn that the needle used in giving the injection was not long enough to reach the gluteus muscle, Mrs. Barnes being a woman of considerable girth and fleshy withal.

In view of the testimony as we have it summarized from the record we are forced to conclude there was sufficient evidence to take the case to the jury and to support the jury's verdict. Accordingly, under familiar principles, the verdict cannot be disturbed on appeal in the absence of other error. (See cases in 1 Hatcher's Kansas Digest (Rev.Ed.), Appeal & Error, § 495.)

It is next argued that Dr. Taylor, who testified on behalf of Mrs. Barnes as an expert witness, was not competent to testify as to the standards of care and skill required of hospitals in communities such as Wichita. In a recent case, Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P.2d 1013, this court considered this very question in depth, and having done so clearly spelled out the rule which now obtains in this state:

'A witness, qualified as a medical expert, who claims knowledge of the degree of care and skill, used by hospitals generally in the community where an injury occurred and gives a reasonable explanation of how such knowledge was acquired, may testify concerning such matters even though he had not practiced medicine in the particular community. (Syl. 1.)

'Pursuant to K.S.A. 60-419 and 60-456, the test of competency of an expert witness is whether he discloses sufficient knowledge to entitle his opinion to go...