D'Antoni v. Sara Mayo Hospital

• Citation: 144 So.2d 643
• Decision Date: 02 July 1962
• Docket Number: No. 638,638
• Parties: Mrs. Alert Louise D'ANTONI v. SARA MAYO HOSPITAL and the Aetna Casualty and Surety Company.
• Court: Court of Appeal of Louisiana (US)

Page 643

144 So.2d 643

Mrs. Alert Louise D'ANTONI v. SARA MAYO HOSPITAL and the Aetna Casualty and Surety Company.

No. 638.

Court of Appeal of Louisiana, Fourth Circuit.

July 2, 1962.

Rehearings Denied Oct. 4, 1962.

Certiorari Denied Nov. 27, 1962.

Joseph E. Berrigan, Jr., Francis J. Demarest, Jr., and R. Louis Carruth, New Orleans, for plaintiff-appellee and appellant.

Adams and Reese, St. Clair Adams, Jr., New Orleans, for defendant-appellant.

Henry M. Robinson and Herbert J. Garon, New Orleans, for defendant and third-party plaintiff-appellee.

Before REGAN, SAMUEL and HALL, JJ.

LUTHER E. HALL, Judge pro tem.

This is a suit by Mrs. Alert Louise D'Antoni against Sara Mayo Hospital and The Aetna Casualty and Surety Company, its public liability insurer, to recover damages for personal injuries sustained by plaintiff as a result of falling from her bed in the hospital on August 4, 1958 at approximately 1:00 A.M.

Exceptions of no cause or right of action were filed on behalf of The Aetna Casualty and Surety Company on the theory that the right and cause of action herein are predicated upon alleged malpractice of Sara Mayo Hospital and that the comprehensive general liability insurance policy issued by Aetna to the hospital contained a malpractice exclusion clause. These exceptions were overruled, and Aetna filed a general denial and repeated its defense of no cause of action as to Aetna.

Exceptions of no cause or right of action were filed in behalf of Sara Mayo Hospital under the doctrine of immunity of charitable institutions and were overruled. Sara Mayo Hospital then filed an answer repeating its defense that no cause or right of action existed against the hospital, generally denying negligence on the part of the hospital, and further charging that the sole and proximate cause of the accident was the negligence of the plaintiff and, alternatively, that plaintiff was guilty of contributory negligence. In addition Sara Mayo Hospital filed a third-party action against The Aetna Casualty and Surety Company praying for judgment for whatever amount the hospital might be cast in the suit, and also praying for a further judgment against Aetna for attorney's fees, costs and expenses incurred by the hospital in defending the suit as a result of Aetna's breach of contract by failing to defend on its behalf.

Judgment below was rendered in favor of the plaintiff against the Aetna Casualty and Surety Company in the sum of $25,000.00 plus interest and costs.

Judgment was further rendered in favor of the defendant Sara Mayo Hospital dismissing plaintiff's suit as to it.

Judgment was still further rendered in favor of the third-party plaintiff, Sara Mayo Hospital, against the third-party defendant, The Aetna Casualty and Surety Company, in the sum of $4,500.00 attorney's fees and $110.00 for expenses of the trial together with interest and costs.

The plaintiff appealed from that part of the judgment dismissing her suit against Sara Mayo Hospital, and The Aetna Casualty and Surety Company appealed from the judgment against it in favor of the plaintiff and also from the judgment against it in favor of Sara Mayo Hospital.

The record shows that plaintiff was admitted to Sara Mayo Hospital as a patient on July 25, 1958. At approximately 1:00 A.M. on the morning of August 4, 1958 she fell from the left side of her bed and sustained a fracture dislocation of the left ulna, an impacted fracture of the left radius, and an intertrochanteric fracture of the left femur.

Plaintiff contends that the hospital was negligent in not maintaining the side rail in place on the left side of the bed, and that this failure was the proximate cause of the accident.

When plaintiff was admitted to the hospital a notation was made on her admit card that she was 62 years old, that she had cirrhosis of the liver and that she suffered from tonic-clonic jerkings and epileptic and psychomotor seizures that were sudden and unpredictable in onset. Her attending physician, Dr. Bernard Richmond, testified that he ordered side rails to be placed and maintained on her bed at all times. He also ordered that oxygen be administered initially and then be kept available for immediate use.

Dr. Richmond further testified that plaintiff was semi-lucid; that when he visited her he would have to shake her to arouse her; that she could answer questions put to her but would suddenly lapse into sleep.

Plaintiff was receiving injections of sodium luminal, three grains, four times a day during her early hospitalization; but at the time of the accident she had improved and was receiving only one injection of sodium luminal, two grains, at bed time.

The record shows that in accordance with the doctor's orders side rails were attached and maintained on each side of the patient's bed, but that in order to administer oxygen to the patient the side rail on the left of the bed was lowered and the nurse on duty failed to raise it when the oxygen tent was removed. There is testimony to the effect that oxygen may be administered without lowering the side rail.

On the night of the accident plaintiff's daughter was in the room with her, either sound asleep or dozing in a chair. Plaintiff had received an injection of sodium luminal at 9:30 P.M. and when the nurse on duty visited the room at 12:30 A.M., just one-half hour prior to the accident, the left side rail was down and the patient was asleep. The nurse did not raise the side rail.

It is questionable if anyone saw the patient fall. The daughter's testimony is so filled with contradictions that it is of little value. Plaintiff testified that she did not remember being admitted to Sara Mayo Hospital and remembered nothing of her stay there. However her daughter signed a statement for an insurance investigator to the effect that the plaintiff had advised her the following day after the accident that she was attempting to go to the bathroom because no one had responded to the signal light.

Assuming this to be true, we are of the opinion, as was the trial judge, that had the side rail been in proper position a sick and elderly woman such as the plaintiff would have been restrained by the side rail from attempting to get out of the bed by herself.

Considering the plaintiff's age and her semi-lucid condition and the fact that she was under sedation the entire time she was in the hospital (even though she had improved and the dose had been reduced) we do not believe that her action in attempting to get out of bed (if such be the case) amounted to negligence on her part.

We are of the opinion that the hospital attendants and nurses were negligent in not maintaining the side rails in place at all times in accordance with the doctor's orders, and that the absence of the side rail was the proximate cause of the accident.

Since the doctrine of immunity of charitable institutions obtains in this state and since the record abundantly shows that Sara Mayo Hospital is entitled to the benefit of that doctrine, no judgment can be rendered against it. See Nations v. Ludington, Wells and Van Shaick Lumber Co., 133 La. 657, 63 So. 257, 48 L.R.A.,N.S., 531; Congdon v. Louisiana Sawmill Company, 143 La. 209, 78 So. 470; Jordan v. Touro Infirmary et al., La.App., 123 So. 726; Jurjevich et al. v. Hotel Dieu, La.App., 11 So.2d 632; Thibodaux v. Sisters of...