Delling v. Lake View Hosp. Ass'n & Training Sch. for Nurses, Gen. No. 41533.

• Decision Date: 23 April 1941
• Docket Number: Gen. No. 41533.
• Citation: 33 N.E.2d 915,310 Ill.App. 155
• Parties: DELLING v. LAKE VIEW HOSPITAL ASS'N AND TRAINING SCHOOL FOR NURSES ET AL.
• Court: United States Appellate Court of Illinois

310 Ill.App. 155

33 N.E.2d 915

DELLING

v.LAKE VIEW HOSPITAL ASS'N AND TRAINING SCHOOL FOR NURSES ET AL.

Gen. No. 41533.

Appellate Court of Illinois, First District, Third Division.

April 23, 1941.

Appeal from Superior Court, Cook County; Peter H. Schwaba, Judge.

Action by Florence R. Delling against the Lake View Hospital Association and Training School for Nurses and another, for negligence. From a judgment for plaintiff, named defendant appeals.

Affirmed. Edward W. Rawlins, James F. Wright, and Fay Warren Johnson, all of Chicago, for appellant.

Robert M. Woodward and Robert J. Spahr, both of Chicago, for appellee.

BURKE, Justice.

On October 28, 1935, plaintiff filed her complaint in the Superior Court of Cook County against the Lake View Hospital Association and Training School for Nurses, a corporation, and Ezra C. Porter, a physician. After the cause was placed at issue, Dr. Porter died. His death was suggested and John J. Flavin, administrator de bonis non of his estate, was substituted as a party defendant. An amended complaint was filed, which charged that while plaintiff was in the care, custody and control of Dr. Porter and the Lake View Hospital Association and Training School for Nurses, for a cervix operation, a certain electrical wire instrument was used and that through the alleged negligent, careless, wanton and malicious use of said instrument by Dr. Porter and the other defendant, the electrical cord was caused to burn and break off and part of the wire remained in the abdomen of the plaintiff to the disturbance of her vital organs. The answers denied all the acts of negligence and damage.

The trial was before the court and a jury. The court directed a verdict in favor of the defendant, John J. Flavin, administrator de bonis non of the estate of Ezra C. Porter, deceased. The jury returned a verdict in favor of plaintiff and against the defendant, Lake View Hospital Associationand Training School for Nurses, and assessed plaintiff's damages at the sum of $2,000. Motions for a directed verdict, for a new trial and for judgment notwithstanding the verdict, were overruled, and judgment was entered on the verdict, to review which this appeal is prosecuted. For convenience, the Lake View Hospital Association and Training School for Nurses, a corporation, will be referred to as the defendant, or the hospital.

Plaintiff's theory of the case is that the hospital, while under the duty, failed to exercise reasonable care and caution in furnishing a cautery apparatus in a reasonably fit and safe condition for use in the operation, whereby electric current escaped from said apparatus and burned plaintiff and caused wires from the cord of the apparatus to become imbedded in the body of plaintiff, and that the court properly entered judgment on the verdict against the hospital. The theory of defendant is that it was not guilty of any negligence whatever in supplying the electrical cautery apparatus to Dr. Porter for the operation on the plaintiff; that there is no evidence tending to show that there was any defect in this electrical apparatus; that there is no evidence whatsoever to support plaintiff's theory that some part of the insulated cord was broken or was burned off by the electric current, or that any piece of wire became embedded in the person of the plaintiff during the operation; that the court erred in refusing to instruct the jury to find the defendant not guilty at the close of all the evidence, in overruling its motions for judgment notwithstanding the verdict and for a new trial; in admitting improper evidence, in giving improper instructions and in refusing proper instructions. Defendant also contends that the verdict is against the manifest weight of the evidence and that it is for an excessive amount.

Plaintiff went to the hospital on Saturday, May 11, 1935, for an operation on her uterus to be performed by Dr. Ezra C. Porter. She was then 34 years of age and resided with a minor daughter. She had been a registered nurse for eleven years, and at the time she entered the hospital was regularly employed as a registered nurse. For about six months previous to her admission to the hospital, she had been having slight hemorrhages from the uterus. On the morning of Monday, May 13, 1935, the operation was performed by Dr. Porter. Plaintiff was placed on her back on an operating table, her limbs held in an apparatus described as “stirrups”. Dr. Porter sat on the seat of a high stool between the patient's knees. An interne, Dr. Maurice Goldstein, was immediately to her left. Frances Borchert, a registered nurse employed by the hospital as surgical supervisor, and who had charge of all activities in the operating rooms, the central dress rooms and the emergency rooms, stood immediately to the right of the patient. Dr. Goldstein was admitted to practice in 1933 and was resident interne at the hospital from June of that year. He assisted at surgical operations. The patient was subjected to anesthesia. Dr. Porter performed the operation on the mouth of the uterus of plaintiff. This operation took approximately thirty minutes. Then a “regular cautery machine” into which electricity was introduced, was used by Dr. Porter. This machine is also spoken of as a “radio knife”. The nurse, Frances Borchert, supervised the cautery machine. It was kept in a supply room next to one of the operating rooms. Whenever it was to be used it was inspected by her in order to determine whether it was in condition to be used. The cautery machine used consisted of a cord and plug which is plugged into an outlet and leads to a box. The interior of the box consists of one or two vacuum tubes which changes the current in the hospital to a high frequency alternating current. A cord to which a cauterizing tool is attached, leads from the box. This cord terminates in a small pencil-like holder for the particular tool that is to be used at the time. The tool to be inserted may be a cutting blade or a cauterizing tool. The part of the instrument that is applied to the flesh in cauterizing is called the tip. When the instrument is used for cauterizing, it is frequently called a “cauterizing pencil”. Inside the handle are mainly connections between the cord and the tip and suitable insulation so that the tip can be handled and conveniently used. The holder is designed to allow the wire which comes into the handle to carry electric current through to the tip which is used for cauterizing. The patient had a piece of linen over her, known as a lithotomysheet, designed to cover all areas except a sufficient area exposed for the doctor to work. The cabinet of the machine was on the patient's right, the same side on which the nurse was standing. The doctor held the cauterizing pencil in his right hand. There was sufficient slack in the cord so that it could be handled with ease. The power was controlled by the doctor by a foot switch. When he wanted electric current to come through he put down his foot, and when he wanted the current discontinued he lifted his foot. The nurse did not operate the instrument. She did, however, control a separate switch to cut in the current or to shut it off. Dr. Goldstein, called by plaintiff, testified that he saw Dr. Porter using the instrument during the cauterizing process; that he heard a sparkling or sizzling noise and the operation was stopped; that this sputtering or sparkling sounded a little louder than normal; that after he heard this sizzling or crackling noise, some ointment was applied by him to a burn on the surface of the pubic bone directly above the opening of the vagina; that he saw the wound the following morning and it looked a little redder and that the surface skin had started to come off; that when he first saw the area over the pubic bone the skin was not broken; that when he examined the area the next day he did not see any wires in it and that he did not see any wires in it the first time he applied ointment; that the apparatus belonged to the hospital; that he had been present when that same cautery apparatus had been used in other operations; that the cord of the apparatus, running from the box to the cautery pencil, was not lying across the patient's abdomen at the...