Crowe v. Provost

• Decision Date: 17 May 1963
• Citation: 374 S.W.2d 645,52 Tenn.App. 397
• Parties: Gene S. CROWE, et ux., Plaintiffs-Defendants-in-Error, v. Dr. Edwin K. PROVOST and Mrs. R.B. McKee, Defendants-Plaintiffs-in-Error.
• Court: Tennessee Court of Appeals

Page 645

374 S.W.2d 645

52 Tenn.App. 397

Gene S. CROWE, et ux., Plaintiffs-Defendants-in-Error, v. Dr. Edwin K. PROVOST and Mrs. R.B. McKee Defendants-Plaintiffs-in-Error.

Court of Appeals of Tennessee, Middle Section, at Nashville.

May 17, 1963 Certiorari Denied by Supreme Court Nov. 6, 1963.

Shelton & Shelton, M.A. Peebles, Sam D. Kennedy, Columbia, for plaintiffs in error.

Henry & Henry, Pulaski, for defendants in error.

CHATTIN, Judge.

The plaintiffs below, Gene S. Crowe and wife, recovered a judgment of $25,000.00 for the alleged wrongful death of their son, Kyle Crowe, against the defendants, Dr. Edwin K. Provost and Mrs. R.B. McKee. The defendants have appealed in error to this Court.

The son, Kyle Crowe, age twenty-two months, awakened on the morning of March 4, 1961, ill. The child was taken to the office of Dr. Provost about nine thirty o'clock the same morning.

The defendant, Mrs. R.B. McKee, was employed by Dr. Provost as an office nurse. She had had some twenty-five years experience as a practical nurse and had been in the employment of Dr. Provost for twelve years.

Dr. Provost gave the child a routine examination. He was of the opinion the child was suffering from nasopharyngitis, an infection of the tonsils and throat.

Mrs. McKee was directed by Dr. Provost to administer an injection of four hundred thousand units of penicillin in the hip of the child. He also gave Mrs. Crowe a prescription for Cosa-Terrabon, an antibiotic, to be given the child in the treatment of the infection.

At ten thirty o'clock Mrs. Crowe gave the child a dose of the Cosa-Terrabon.

The child continued to be upset and feverish. At about eleven thirty o'clock the child's condition suddenly changed and he seemed to become critically ill.

The child was rushed to the office of Dr. Provost. Dr. Provost had left the office. Mrs. McKee called for the Doctor at his home and left word for him to call. A few minutes after twelve o'clock Dr. Provost returned the call and Mrs. McKee told him the mother of the child had told her she thought the child was much worse than he was at the time Dr. Provost examined him. She also told him the mother had said she thought the child had had a convulsion. She further stated to the Doctor she had taken the child's temperature under his arm and it was 99 3/5 degrees. She told Dr. Provost the child seemed to be in the same condition he was at the time of the examination. Upon this assurance, Dr. Provost stated he would have his lunch and then return to the office.

Miss Faye Lentz, Dr. Provost's office receptionist, returned from lunch and Mrs. McKee left the office for her lunch.

A very few minutes after Mrs. McKee left the office the child's condition became worse and he vomited while lying on his back on a treatment table. He died within a few minutes after he vomited and prior to the return of Dr. Provost and Mrs. McKee.

It is the theory of plaintiffs' declaration that Dr. Provost negligently caused to be administered powerful drugs to the child without ascertaining whether he was allergic to same; that he failed to make a proper diagnosis; that he abandoned the patient in that he failed to respond to a call for treatment of an unconscious and dying child who had been entrusted to his care; that the defendant, Mrs. McKee, while acting as a nurse, employee and agent of defendant, Dr. Provost, either made a false report to her employer or failed to make a proper diagnosis of the condition of the child; that she negligently abandoned an unconscious patient in need of nursing and medical care; and that she negligently failed to exercise the standard of care required of an office nurse in that locality; and that as a result of the aforesaid acts of negligence, or one or more of them, the child was caused to die.

The defendants filed special pleas to the declaration in which they averred that Dr. Provost possessed and used that degree of skill in his diagnosis and treatment of the patient possessed by physicians engaged in the practice of medicine in that locality; that Mrs. McKee possessed and used that degree of skill possessed by office nurses in that locality; that Mrs. McKee requested and received permission from Mrs. Crowe to leave for her lunch. The defendants denied the child was unconscious and that they had abandoned an unconscious patient. Both defendants averred the death of the child was sudden and unexpected due to an overwhelming virus infection; and therefore, not due to any negligence upon the part of either defendant.

The defendants moved for a directed verdict at the conclusion of plaintiffs' proof which was overruled. Defendants did not stand on their motion, but offered the testimony of Dr. Provost, Mrs. McKee, and Miss Lentz, together with the testimony of six reputable and practicing doctors of Columbia and Nashville.

At the conclusion of all the proof the court again overruled defendants' motion for a directed verdict.

The basis of defendants' first, second, and third assignments of error is the trial court's action in overruling their motion for a directed verdict. Defendants' fourteenth assignment is there is no evidence to support the verdict of the jury.

We will consider these assignments together.

It is conceded by the defendants Mrs. McKee was negligent in leaving the patient under the circumstances; that she was the agent and servant of Dr. Provost and he would be vicariously liable for her negligence provided it contributed as a proximate cause of the death of the child.

Accordingly, the only question for our determination, with respect to these assignments, is whether the jury was justified under the evidence in the case in finding the negligence of Mrs. McKee contributed as a proximate cause of the death of the child.

In deciding this question, we must consider the whole proof, construe it in the most favorable light of the theory of the plaintiffs, take as true the evidence which tends to support that theory, discard all inconsistent or countervailing evidence, and allow all reasonable inferences from it favorable to plaintiffs' insistence. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 211 S.W.2d 450; Sepaugh v. Methodist Hospital, 30 Tenn.App. 25, 202 S.W.2d 985.

Mrs. Crowe testified substantially as follows: The Deceased, Kyle Crowe, was a healthy twenty-two month old child prior to March 4, 1961. On that morning about seven o'clock he became ill. At nine thirty o'clock Mrs. Crowe took the child to the office of Dr. Provost. Dr. Provost made a routine examination of the patient. He diagnosed the condition of the child as nasopharyngitis, a mild infection of the throat and tonsils. Under orders of Dr. Provost, Mrs. McKee administered a shot of penicillin in the hip of the patient, without either inquiring of Mrs. Crowe whether the child was allergic to penicillin or making any tests to ascertain that fact. The Doctor wrote a prescription for Cosa-Terrabon to be used in further treatment of the infection.

At ten thirty o'clock the same morning, Mrs. Crowe gave the child a dose of Cosa-Terrabon. Within an hour, the child suddenly screamed and threw his arms over his head and lapsed into a condition of unconsciousness.

Mrs. Crowe arrived at the office of Dr. Provost about eleven forty-five o'clock. The Doctor had gone for his lunch. Mrs. Crowe told Mrs. McKee she thought the child had had a convulsion and that he was dying. The child was unconscious and his breathing was abnormal. At the request of Mrs. Crowe, Mrs. McKee called Dr. Provost but he had not arrived at his home. At twelve ten o'clock, Dr. Provost returned the call. Mrs. McKee told Mrs. Crowe the Doctor would come to the office in a few minutes. Mrs. McKee then left the office for her lunch. Miss Faye Lentz, the receptionist for the office of the Doctor, returned from her lunch as Mrs. McKee left. Within a few minutes after Mrs. McKee left the office, the child vomited and his condition seemed to grow worse. Miss Lentz called Dr. Provost at approximately twelve thirty-five o'clock and told him the child's condition was worse. He arrived at the office about one o'clock and after the child had died.

After the child vomited, Mrs. Crowe raised him up and held him in an upright position. But when she did this his breathing seemed shorter than while lying on his back on the treatment table. Vomit and phlegm continued to run out of his nose and mouth and his breathing became faint. His lips became a dark color. The child died a few minutes before the defendants returned to the office.

After Dr. Provost returned to the office and examined the child, he stated to Mrs. Crowe he did not know what caused the child's death.

Henry Dawson, a policeman and an uncle of Mrs. Crowe, came in the office after the child had vomited. When he arrived the child seemed lifeless. He tried to arouse the child but was unsuccessful. After the child died, he undertook to revive him by mouth to mouth artificial respiration. He was unable to do so because of the amount of phlegm and vomit oozing from the mouth of the child.

Mrs. Frances Brooks, a registered nurse and a graduate of the University of Tennessee School of Nursing, testified she had seventeen years of experience as a nurse and had served eighteen months in the army nursing corps during World War II as a Second Lieutenant. She further testified if the child had had a convulsion prior to arriving at the Doctor's office and was unconscious and breathing irregularly, such symptoms would indicate a need for immediate medical attention; and that under such circumstances standard nursing procedure would require the nurse to notify the doctor and remain with the child until he arrived. She further testified a nurse would have known not to leave a child on its back or to hold him in an upright position while vomiting. That a child in such a position while vomiting would cause the vomitus to drain into the lungs and choke or drown the...