Davis v. Potter, 5658

• Decision Date: 09 July 1931
• Docket Number: 5658
• Citation: 2 P.2d 318,51 Idaho 81
• Parties: TURNER DAVIS and RUBY DAVIS, His Wife, Respondents, v. A. L. POTTER et Ux., Defendants, and H. J. STURGES, Appellant
• Court: Idaho Supreme Court

2 P.2d 318

51 Idaho 81

TURNER DAVIS and RUBY DAVIS, His Wife, Respondents, v. A. L. POTTER et Ux., Defendants, and H. J. STURGES, Appellant

No. 5658

Supreme Court of Idaho

July 9, 1931

PHYSICIANS AND SURGEONS-DEGREE OF SKILL REQUIRED-LIABILITY FOR NEGLIGENCE-EXCESSIVE DAMAGES.

1. Surgeon, under evidence disclosing he supervised placing patient in bed after operation, held liable for nurse's negligence resulting in patient being burned by hot water bottle.

2. Physician and surgeon undertaking to treat patient is not required to exercise highest degree of skill possible.

3. Physician or surgeon is only required to exercise degree of skill and learning ordinarily exercised by members of profession in good standing, practicing in similar locality.

4. Physician and surgeon must use reasonable diligence in exercise of skill and application of learning and act according to best judgment.

5. In patient's action for injuries resulting from being burned by hot water bottle, instruction defining duty of defendant surgeon held not erroneous.

6. Five thousand dollars to patient for burns on leg from hot water bottle after major operation, against surgeon, held not excessive.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondents.

Cannon McKevitt & Fraser and O. J. Bandelin, for Appellant.

In Floyd v. Michie, (Tex. Civ. App.) 11 S.W.2d 657, 658 the court discusses the presumption that a physician has discharged his full duty and says:

"To defeat this presumption the law exacts affirmative proof that such breach of duty resulted in injury. Negligence is never imputed from results nor is any inference thereof indulged in against the physician. (Citing a long list of cases.)"

The only evidence present in the case at bar is that of a burn sustained by the patient while in the hospital at Coeur d'Alene, but, as is said in 21 R. C. L., pp. 406 and 407:

"The burden of proof is not shifted by showing that an unsuccessful result has attended the treatment of the patient by the physician. A bare possibility of such result is not sufficient. . . . Nor does such result shift from the plaintiff the burden of going forward."

In the case of Parkes v. Seasongood, 152 F. 583, the following language is used:

"A trained nurse performing her usual duties and exercising the skill which is the result of training in that profession does not come within the definition of a servant, but rather is one who renders personal service to an employer in the pursuit of an independent calling, and the employer is not liable as master for her acts."

In 46 A. L. R. 1457-1459, the rule is laid down that a physician is not liable for the negligence of a nurse and internes in caring for a patient after treatment even though the patient thought the doctor owned and operated the hospital.

N.D. Wernette, for Respondents.

A surgeon having undertaken to carry his patient to bed and putting the patient in bed owes a duty to the patient to know that the bed is free from anything that might harm or endanger the helpless patient; he has no right to close his eyes and rely upon someone else to protect the unconscious patient from danger.

He owes a duty of conveying the patient to and furnishing the patient with a safe bed. (Harber v. Gledhill, 60 Utah 391, 208 P. 1111.)

A jury is presumed to have found its verdict upon the facts without having been influenced by passion or prejudice, and where a verdict is for a less sum than the full amount demanded in the prayer of the complaint, this presumption is strengthened. (Cox v. Northwestern Stage Co., 1 Idaho 376.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

This is an action for damages for personal injuries to surgical patient on account of burn from hot water bottle occurring after the operation.

Mrs. A. L. Potter, a graduate trained nurse, owns and operates a hospital in the city of Coeur d'Alene, known as the Home Hospital, which is her sole and separate property. The hospital is small and the nursing is looked after by Mrs. Potter. Appellant, H. J. Sturges, is a physician and surgeon residing at Coeur d'Alene, Idaho. Pursuant to an understanding with respondent husband and wife, appellant performed a major operation upon Mrs. Davis, she being thought to be pregnant at the time. Appellant informed Mr. Davis that it would be necessary to have a special nurse for two or three days after the operation and told Mrs. Potter to call Mrs. Anna R. Tanner, a practical nurse who had had some hospital training but was not a trained graduate nurse. She had served in similar capacity in other cases handled by Dr. Sturges and came to the hospital before the operation was completed, found the room assigned to Mrs. Davis and proceeded to warm the bed to be occupied by her with three rubber hot water bottles. When the operation was completed the patient, still under the influence of the anesthetic, was wheeled to her room, accompanied by Dr. Sturges, Dr. Dwyer, who assisted in the operation, Mrs. Potter and Mrs. King, the latter, who was the office girl for Dr. Sturges, having given the anesthetic. The patient was lifted off the car with the assistance of Dr. Sturges and placed in the bed. Dr. Dwyer and Mrs. King then wheeled the car back to the operating-room and did not again come into the patient's room. Mrs. O'Donnell, an aunt of Mrs. Davis', was permitted to stay in the operating-room during the operation but was not admitted to the patient's room immediately, she and Mr. Davis remaining in the hall with the door closed. She testified that they remained there for five or ten (Davis says ten) minutes before Dr. Dwyer and Mrs. King came out. Mrs. Potter and Dr. Sturges came out of the room and the former told Mrs. O'Donnell and Mr. Davis they might go into the patient's room in a few minutes. She came back presently and said they might go in. They found the patient, still under the influence of the anesthetic, covered up in bed. The special nurse was sitting on the edge of the same bed. After about twenty minutes she seemed to be coming from under the influence of the anesthetic and complained of being burned. The nurse said, in effect, that she imagined this and was probably still out of her head. The nurse left the room in a few minutes and the patient still complained of being burned. Finally, a hot water bottle fell to the floor and an examination made by Mrs. O'Donnell revealed a burn on the patient's right leg, toward the front, above the knee and approximately nine and one-half inches long by six and one-half inches wide. On the return of Mrs. Tanner, this fact was disclosed to her. She promptly notified Mrs. Potter, who directed her to advise Dr. Sturges, which was done.

Respondents brought this action against Dr. Sturges and A. L. Potter and Mrs. Potter. Under instruction of the court the jury found in favor of A. L. Potter. They, also, found in favor of Mrs. Potter, but returned a verdict for $ 5,000 against Dr. Sturges, who moved for a new trial, which was denied. The present appeal is from the order denying the motion for a new trial.

The court instructed the jury, in effect, that a physician is only bound to use such reasonable and ordinary care, skill and diligence as physicians and surgeons of the same neighborhood in the same line of practice ordinarily have and exercise in like cases. Negligence was defined and, also proximate cause. The court further instructed the jury that if Mrs. Davis was burned by a hot water bottle, such burn was the proximate cause of the injuries complained of, and if they further found that said hot water bottle was placed in the bed by plaintiff's nurse...