Byrd v. Marion General Hospital

• Decision Date: 02 March 1932
• Docket Number: 560.
• Citation: 162 S.E. 738,202 N.C. 337
• Parties: BYRD v. MARION GENERAL HOSPITAL et al.
• Court: North Carolina Supreme Court

162 S.E. 738

202 N.C. 337

BYRD v. MARION GENERAL HOSPITAL et al.

No. 560.

Supreme Court of North Carolina

March 2, 1932

Appeal from Superior Court, McDowell County; Sink, Judge.

Action by Mrs. Alice Byrd against the Marion General Hospital and others. From a judgment in favor of plaintiff, Dr. J. F Miller and another appeal.

Reversed.

Law contemplates that physician is solely responsible for diagnosis and treatment of patient.

Where physician stood by without protest, if nurse's preparation of patient's body for treatment in sweat cabinet prescribed by physician was not proper, preparation was part of treatment, as regards liability of physician for burns received by patient.

The defendant hospital is a corporation, and it was alleged that said corporation was engaged in running a general hospital for the treatment of diseases. It was further alleged that the defendant J. F. Miller was a physician and surgeon, and by virtue of some contractual relationship between him and the hospital, was engaged in the operation and management thereof, and that Mrs. J. F. Miller, the wife of defendant Miller, was assistant superintendent or assistant manager. The hospital filed an answer alleging that the defendant Dr J. F. Miller had leased the hospital and was operating it on his own account at the time of plaintiff's injury.

A summary of the evidence is as follows: The plaintiff is the wife of Frank Byrd and had given birth to a child on or about January 16, 1929. Plaintiff's physician was Dr. Bingham who had no connection whatever with any of defendants, but was engaged in the general practice of medicine. Dr. Bingham had been treating plaintiff and advised the husband of plaintiff that she was threatened with convulsions. He said if she did to rush her up there to the hospital and have them sweated out. "Dr. Miller had never seen my wife up to that time. Up to the time the child was born Dr. Miller never was my doctor. Up to the time she was treated in this electric cabinet he never had been my doctor. *** Dr. Bingham was the man who sent her to the hospital. *** Dr. Bingham was the man who prescribed this sweat cabinet treatment and the only doctor I had. He was the last one and I followed his advice. I never took any advice from Dr. Miller at all about what treatment to give my wife. So far as I know Dr. Miller had never seen me in my life."

On January 22, the plaintiff began having convulsions, and her husband and certain friends of the family placed the plaintiff in an ambulance and took her to the hospital in order that she might be treated in the "sweat cabinet" owned and operated by the Millers, and sometimes referred to as a baking machine or radiation cabinet. This appliance is a metal box about two and a half feet wide and about two feet high. The top is oval-shaped. In front there is a glass window so that any one can look in and see the patient. One end has a curtain over it, and there is a padding upon which the patient lies. The cabinet was equipped with forty electric lights controlled by four switches, there being about ten lights to each switch. Each bulb carried about forty volts. The head of the patient is not within the machine. The curtain referred to drops below the head, leaving that part of the body totally outside the machine. The undisputed evidence from experts and disinterested witnesses tended to show that the appliance was known as the Burdick type of machine, and that the mechanism was approved and in general use. Dr. Hall, teacher of zoölogy and physiology at Duke University, testified: "I have used the Burdick cabinet for seven or eight years in my experimental work. I am familiar with the construction and operation of these Burdick cabinets. The are used universally in hospitals. I think nearly every hospital of any size has a similar type of cabinet. *** It was used during the world war."

The defendant, Mrs. J. L. Miller, testified that on January 22, 1929, Dr. Bingham called the hospital and that she answered the telephone; that Dr. Bingham called for Dr. Miller, and that witness informed him that Dr. Miller was out of town; that thereupon Dr. Bingham said: "I have a patient that I am sending in that I wanted sweated in the sweat cabinet immediately, and I will be right along, and you go down and get it ready." In a few minutes the plaintiff, with her friends, arrived at the hospital, and Mrs. Miller, who was superintendent of nurses, received the plaintiff and proceeded to prepare her for the sweat cabinet. All her clothing was removed except a light vest, a light gown, and an abdominal binder. The plaintiff was then unconscious and was having convulsions about every five minutes.

At this point there is a divergence in the evidence. Mrs. Miller and her witnesses testify that Dr. Bingham came before the plaintiff was placed in the cabinet. The husband of plaintiff testified: "I couldn't say whether Mrs. Miller had placed my wife in this sweat cabinet before Dr. Bingham came in or not." Subsequently he testified: "I won't be positive, but I think I saw my wife in the sweat cabinet before Dr. Bingham got in there." Another witness for plaintiff testified: "After I got there I would say it was at least ten minutes, if not longer, until Dr. Bingham showed up." A witness for plaintiff also testified that she was informed that a hypodermic had been given to the plaintiff a few minutes after she was placed in the cabinet. The hands and feet of plaintiff were tied in order to eliminate the possibility of breaking the electric lights and inflicting cuts during her struggles when seized with convulsions.

Dr. Bingham was not examined as a witness by either party. The defendants, however, offered the testimony of a neighbor of the plaintiff, to wit, Mrs. Davis Bright, who went with her to the hospital. She testified that, when the plaintiff was put in the cabinet, Dr. Bingham was present and going in and out from the cabinet room, and that he directed Mrs. Miller to fix a hypodermic and give it to the plaintiff; that Mrs. Miller requested Dr. Bingham to watch the patient while she prepared the hypodermic. After administering the hypodermic Mrs. Miller asked Dr. Bingham: "How long do you want this patient to stay in here?" And he said: "How long has she been in?" She said: "About thirty minutes." He said: "Let her stay in about ten minutes longer." The nurse who assisted in preparing the plaintiff for the treatment, testified that Dr. Bingham was present at the time the patient was placed in the cabinet, and that she kept a cold cloth on Mrs. Byrd's head, and that Dr. Bingham prescribed the hypodermic which was given by Mrs. Miller. Reverend J. S. Lockaby, rector of the Episcopal Church in Marion, who was in the hospital, testified that he heard the conversation between Mrs. Miller and Dr. Bingham; that he went down and stood in the door of the cabinet room during the time Mrs. Byrd was there, and that Dr. Bingham was present.

The defendant offered the testimony of several witnesses who had been treated frequently in the machine, and the treatment was administered to the naked body and no ill effects resulted. The evidence for defendants tended to show that Mrs. Byrd was suffering with dema, but there was evidence to the contrary. The defendant also introduced many experts who testified that the treatment of plaintiff by means of dry heat was an improper method of treatment.

Plaintiff introduced evidence of a physician who testified that, if the plaintiff had been properly prepared, "covered with Turkish towels, you couldn't burn her." Witness further testified that he had never used a machine like the one in controversy or had never served in a hospital where one was used, and that he knew nothing about the particular type of appliance.

In a few hours after plaintiff was removed...