Burke v. Pearson

• Decision Date: 12 September 1972
• Docket Number: No. 19484,19484
• Citation: 191 S.E.2d 721,259 S.C. 288
• Court: South Carolina Supreme Court
• Parties: , 63 A.L.R.3d 1012 Helen R. BURKE, By Her Guardian Ad Litem, John T. Burke, Respondent, v. Hugh O. PEARSON, Jr., Appellant.

Page 721

191 S.E.2d 721

259 S.C. 288, 63 A.L.R.3d 1012

Helen R. BURKE, By Her Guardian Ad Litem, John T. Burke, Respondent, v. Hugh O. PEARSON, Jr., Appellant.

No. 19484.

Supreme Court of South Carolina.

Sept. 12, 1972.

T. Reeve Sams and Julian S. Levin, of Levin & Sams, Beaufort, for appellant.

James C. Sanders, of Dowling, Dowling, Sanders & Dukes, Beaufort, for respondent.

BRAILSFORD, Justice:

This malpractice action against Dr. Hugh O. Pearson, Jr., a Beaufort physician, resulted in a verdict against him for actual and punitive damages, and he appeals, principally upon the ground that the evidence raised no submissible issue as to actionable negligence or willfulness.

The controversy concerns a heating pad burn inflicted upon Helen R. Burke, while she was Dr. Pearson's patient in Beaufort County Memorial Hospital, to which she was admitted May 14, 1969. Mrs. Burke, age sixty-seven had been in poor physical and mental health for a number of years. She suffered from chronic disease of the back and other ills. She was extremely underweight, markedly depressive and, at times, agitated. When aroused, she complained of pain and frequently demanded drugs, saying to the nurses, 'Knock me out!' Under Dr. Pearson's orders she periodically received seven different medications, primarily to relieve her pain and depression. Most of these were sedatives and anti-depressants. One, however, a synthetic analogue to morphine, was an analgesic.

On May 15, the second hospital day, Mrs. Burke asked that her heating pad be sent for her to use on her lower back. Instead, the doctor ordered the use of a hospital heating pad. On May 19, the sixth hospital day, a nurse noted an area of redness, or erythema, on the lower back and buttock where the heating pad had been in use. Dr. Pearson assumed, as had the nurse, that the heating pad had caused a burn, and the erythema was so treated. By the fifth day thereafter, the tissues in the center of the reddened area were dead. Separation of tissues, infection and drainage followed. On June 14, the ulcerated area was surgically debrided, leaving a sizeable open wound. ¹

Mrs. Burke was dismissed from the Beaufort hospital on June 16. In the 'Discharge Summary' entered on the hospital record, Dr. Pearson wrote: 'On the 5th hospital day a large burn overlying the right sacral prominence was noted secondary to the use of a heating pad. This progressed to infection, drainage, requiring debridement and initially (sic) developed into a . . . decubitus ulcer.'

By the time of trial, Dr. Pearson had changed his diagnosis to simple decubitus ulcer (bedsore) unrelated to use of the heating pad. The other doctors who testified in his behalf were likewise positive that a heating pad burn could not account for the depth and magnitude of the wound, which they unanimously characterized as a decubitus ulcer. One of them did testify that such an ulcer could be Precipitated by a heating pad burn. However, we see no need to examine the testimony in detail on the issue of causation. Dr. Pearson initially diagnosed the injury as a heating pad burn, and adhered to that view even when the full extent of the ulceration was known. The circumstances under which the lesion developed, especially in light of the original diagnoses by doctor and nurse, give rise to a reasonable inference that respondent's injury, whether burn or bedsore, was caused or precipitated by heat from the pad. See Oglesby v. Smith, S.C., 188 S.E.2d 856 (1972); cf. Fowler v. Coastal Coca-Cola Bottling Co., 252 S.C. 579, 167 S.E.2d 572 (1969). The dispositive issue is whether the record contains evidence reasonably sustaining the jury's finding of negligence and willfulness.

The complaint alleged misconduct in seven particulars. One specification found fault with the appellant's failure 'to be present himself, or to have some other responsible person present, to be sure that the Plaintiff was not burned.' Another specification complained of appellant's prescribing the pad for unlimited use when he should have known that the hospital staff was inadequate to 'carefully watch over the Plaintiff to be sure that she was not burned . . ..' The remaining specifications assigned negligence in authorizing use of the pad without limitation when the patient was heavily sedated and unlikely to sense incipient injury from the pad.

The medical witnesses testified that the use of the heating pad was sound medical practice. They further testified that the terse order authorizing the heating pad--'Heating pad to back'--was sufficient as written; that routine supervision by the nurses was implicit in the order; that such supervision was properly to be assumed; and that no explicit cautions or limitations were needed.

Respondent offered no testimony that the standard of care accepted and employed by reasonably prudent physicians under the circumstances related included explicit instructions as to precautions to be taken. Such testimony is normally required. Bessinger v. De Loach, 230 S.C. 1, 94 S.E.2d 3 (1956). However, respondent relies on the well-established exception that expert testimony is unnecessary when the subject matter lies within the ambit of common experience, so that no special learning is needed to evaluate the physician's conduct. Bessinger v. De Loach, Supra.

Dr. Pearson disclaims the existence of competent evidence that the drugs administered, in the dosages prescribed, rendered Mrs. Burke unable to detect the pain of a burn. However, the testimony of the patient's husband and daughter, and the nurses' and doctor's notes made during the period of heating pad use, amply confirm the patient's lethargy and somnolence. This condition was reasonably attributable to the various drugs continually administered. It was for the jury to determine the extent to which her ability to look out for herself was impaired by sedation.

Plaintiff contends that expert testimony was unnecessary to evaluate the defendant's conduct in authorizing the use of a heating pad At all, considering her sedated condition. She introduced in evidence a hospital heating pad similar to the one used. It operates on a single temperature, which cannot be varied. The pad's plastic cover carries the following information:

'UNIFORM LOW-TEMP HEAT (Approx. 125 --130 F.)'

Eleven numbered instructions follow. Two of these are relevant:

'1. Due to varying sensitivity of the individual's skin, temperatures sufficiently high to cause burns may result from the improper use of this pad regardless of the control switch setting. Therefore, the patient's skin at the point of application should be inspected frequently if the pad is applied directly to the body.

'8. Do not apply this pad to a helpless person (an infant, in invalid, a sleeping or unconscious person) unless carefully attended.'

We think these instructions, unobjected to, were relevant to the issue of negligence. See, E.g., Monk v. Doctors Hospital, 131 U.S.App.D.C. 174, 403 F.2d 580 (1968). Cf. Sanzari v. Rosenfeld, 34 N.J. 128, 167 A.2d 625 (1961). But Mrs. Burke presented no evidence that appellant had reason to think these instructions would be disregarded by trained hospital nurses; nor was there evidence that the nurses were derelict in this respect. Plaintiff presented no evidence in support of her allegation that the hospital staff was inadequate. She has not contended, despite her allegation, that her physician or someone in his stead should have been constantly present for monitoring of the pad's use. There is no showing that the nurses by the exercise of due care should have discovered the erythema any sooner than it was in fact discovered. There is no evidence that the nurses failed to examine the patient frequently. If the manufacturer's instructions are accepted as correctly expressing the duty of care, there is simply no evidence that the duty was breached.

But even assuming that the nursing staff failed to attend the patient with due care, the physician has not been connected with such misconduct. Respondeat-superior principle do not apply to the relationship of private physician and hospital nurse while the latter is carrying out her general duty of attending patients in his absence. The medical testimony unanimously indicated that proper administration of the heating pad was reasonably to be expected without special directive....