Dent v. Memorial Hosp. of Adel, Inc.
| Decision Date | 16 July 1997 |
| Docket Number | No. A97A0289,A97A0289 |
| Citation | 227 Ga.App. 801,490 S.E.2d 509 |
| Parties | , 97 FCDR 2880 DENT et al. v. MEMORIAL HOSPITAL OF ADEL, INC. |
| Court | Georgia Court of Appeals |
Gray & Hedrick, William E. Gray II, Law Office of David W.M. Boone, Robert G. Ballard, Atlanta, for appellants.
Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Thomas A. Graham, Atlanta, for appellee.
The Dents as parents, and the father as the estate administrator, sued Memorial Hospital of Adel, Inc. ("hospital") and others for the wrongful death of their 15-month-old son.
At about 10:30 p.m. on November 21, 1987, Mark Alan Dent stopped breathing. His parents successfully administered CPR at home and rushed Mark to the hospital's emergency room. Dr. Howard McMahan concluded that Mark had suffered an apneic event, decided that Mark should be admitted to the hospital for observation and ordered his placement on a pediatric apnea monitor. The monitor was to be set so an alarm would sound, alerting the nurses, if Mark stopped breathing for ten seconds.
At about 4:30 a.m., Mark's mother awakened and discovered her son was not breathing. After noticing he appeared extremely blue, she ran to the nurse's station for assistance. When the nursing staff responded, Mark was already in a cyanotic state, indicative of oxygen deprivation for several minutes, not a few seconds. Mark never resumed normal, unassisted breathing and died four days later. 1
The evidence conflicted as to whether the alarm failed to sound, whether the attending nurse failed to turn the alarm switch to the "on" position, and whether the hospital's crash cart lacked several essential items. There was opinion evidence that the nursing staff's response to Mark's emergency was inadequate. After a lengthy trial, the jury found for the hospital. Following denial of their motion for new trial, the Dents appealed and enumerate two errors.
1. The Dents contend the trial court committed reversible error by using a charge on professional negligence which confused and misled the jury into believing it could disregard the issue of ordinary negligence. The complaint and the pre-trial order, which formed the basis for the claim and the issues, the closing arguments of both counsel, the judge's whole charge to the jury, and the history of the jury's deliberations and question and the judge's reply, show that no reversible error occurred as enumerated.
It is evident that the jury understood that it should consider two theories of negligence, ordinary and professional. Whether the jury found no breach of the duty of ordinary care by the nurses and no breach of their professional duty of care or lack of proximate cause, which of course we do not know, the charge as given did not mislead or confuse. Even if the charge could have been made clearer or reworded, that is not the issue.
The jury had the complaint with them for their deliberations. It contained alternate theories in separate counts. As related to the hospital, the plaintiffs alleged undifferentiated negligence in paragraphs 13, 26 and 28.
Plaintiffs outlined their contentions about the events in the Pre-Trial Order. They listed two theories of liability, i.e., "ordinary negligence" and "medical (nursing) malpractice or professional negligence including the breach of a duty...." The "specifications of negligence" were not separated into two categories, one ordinary and one professional, and are not listed in the record. Defendant's contentions were outlined as not breaching any duty of care owed and allegedly violated.
The verdict form agreed upon by the parties does not distinguish between the two theories. It simply lists as possible verdicts one in favor of the plaintiffs as parents for the wrongful death (value of life), one in favor of the father as administrator of the child's estate (pain & suffering, medical and burial expenses), and one in favor of the hospital. It was in fact the form used, except it omitted pain and suffering as an item of damages for the administrator.
While we recognize that the jury is not instructed on the law by the lawyers but by the judge, the arguments of counsel illuminate the issue as to whether the jury was misled or confused by the judge's instructions. The arguments of counsel made clear that the two theories were advanced by plaintiffs, thereby contributing to the jury's understanding. Defendant, who gave the first closing argument, told the jury at the outset that Defendant discussed in particular medical malpractice, as related to the nurses' training and to the care given, and, in so doing, focused on the expert testimony.
Plaintiffs also discussed the two theories of ordinary negligence and professional negligence and said that the jury would not have to find professional negligence but only ordinary negligence by way of the fact that the alarm was, or alarms were, not on. Plaintiffs argued that experts are necessary to prove professional negligence. Their counsel guided the jury's thinking:
And later: Still later: (Counsel then tied the alarm apparatus into professional negligence.)
At the end of the argument about liability, before going on to the issue of damages, counsel said: "If you find that the hospital is liable, ... and by liability now, I mean that they committed an act of negligence [or] professional negligence, and that that negligence [or] professional negligence, proximately caused the death."
Thereafter, the court charged the jury. It first charged, in a clear fashion, ordinary negligence:
Later, and separate from the charge on ordinary negligence, the court charged at some length on the theory of professional negligence. In the midst of the charge on professional negligence, and having already covered the subject of ordinary negligence in an earlier part of the charge, the court charged what appellants now contest: "if you find from the evidence in this case that the defendants did not commit any acts of professional negligence or malpractice, a verdict in the plaintiffs' favor would be unlawful...." It is obvious that the court was speaking about a verdict based on the theory of professional negligence. That is what the court was focusing on. It had just said that the plaintiffs did not have to prove "all the grounds of negligence" to win, making the point that any of the numerous acts of negligence that were charged would be a sufficient basis for recovery (assuming proximate cause). Its exact instruction was: Appellants concede that the court charged that it was not necessary that all grounds of negligence be proven for plaintiffs to recover.
It is clear that in the instructions regarding damages the court embraced both ordinary negligence and professional negligence. It spoke of "tortious act" and "a tort, here negligence" without excluding ordinary negligence. The same is true when it focused on the hospital corporation, which the judge instructed would be liable "for the negligence of its agents and/or employees, if any you should find, if at the time of the negligent acts, the employees were acting within the scope and authority of their employment." This was, again, not narrowed to "professional negligence" nor in any way excluded ordinary negligence. If anything, it favored ordinary negligence because the qualifier "professional" was not used. Neither was the term "malpractice" used.
During the charge conference plaintiffs objected to a portion of defendant's request number 20, but it was out of context then and the court agreed not to give that part of the charge. Defendant was more...
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