Duling v. Bluefield Sanitarium, Inc.

• Decision Date: 15 June 1965
• Docket Number: No. 12346,12346
• Citation: 149 W.Va. 567,142 S.E.2d 754
• Court: West Virginia Supreme Court
• Parties: Galen F. DULING, Administrator of the Estate of Nancy Marie Duling v. BLUEFIELD SANITARIUM, INC.

Page 754

142 S.E.2d 754

149 W.Va. 567

Galen F. DULING, Administrator of the Estate of Nancy Marie Duling v. BLUEFIELD SANITARIUM, INC.

No. 12346.

Supreme Court of Appeals of West Virginia.

Submitted May 4, 1965.

Decided June 15, 1965.

Syllabus by the Court

1. Before directing a verdict in favor of the defendant, every reasonable inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and all facts should be assumed as established which the jury might properly find from the evidence.

2. A hospital owes to one who is a patient therein a duty to exercise reasonable care in rendering hospital services to the patient and, in the performance of such duty, due regard must be given to the mental and physical condition of the patient of which the hospital, in the exercise of reasonable care, should have knowledge.

3. A private hospital may be held liable in damages for the death of a patient in such hospital resulting from the negligence of nurses employed by it.

4. In an action against a private hospital based upon negligence of nurses employed by the hospital in failing properly to attend and care for a patient subject to their care in such hospital, resulting in the death of the patient, it is proper to admit testimony of physicians, or of other qualified persons, concerning the usual standards employed by nurses in caring for patients in hospitals. Such standards need not relate merely to the general area in which the hospital is situated and it is not necessary that such witnesses reside in the general area in which the hospital is situated or that they be acquainted with such standards in that area.

5. In a wrongful death action against a private hospital based upon negligence of nurses employed by the hospital, the plaintiff, by virtue of R.C.P. 43(b), may call, as a witness for the plaintiff, a physician who is a member of the hospital staff and a director of the defendant hospital corporation, may interrogate him by questions in hypothetical or other form and may require answers of him, including expressions of expert medical opinions of the witness, in all respects as if he had been called as a witness by and in behalf of the defendant.

6. While it is proper for a trial court to direct counsel for the respective parties to exchange lists of witnesses ten days in advance of the commencement of the trial, such a requirement should not be so applied as to create undue hardship or unduly to impede the development of pertinent facts before the jury. The trial court, in the light of the situation subsequently arising, may commit reversible error in refusing to permit a witness to testify before the jury on the ground that opposing counsel were apprised less than ten days in advance of the trial that such person would be called as a witness.

7. Under the provisions of Code, 1931, 55-7-6, as amended and reenacted by Chapter 1, Acts of the Legislature, Regular Session, 1955, a jury may not award damages in excess of ten thousand dollars unless it is proved by a preponderance of the evidence that financial or pecuniary loss was sustained by one or more distributees as a consequence of the wrongful death. The mere fact of the wrongful death can form no basis for any award of such financial or pecuniary loss.

Weaver & Daugherty, W. C. Weaver, George A. Daugherty, Charleston, for appellant.

Hudgins & Coulling, Paul S. Hudgins, L. R. Coulling, Jr., Bluefield, for appellee.

CALHOUN, Judge.

Galen F. Duling, as administrator of the estate of his deceased daughter, Nancy Marie Duling, instituted a wrongful death action against Bluefield Sanitarium, Inc., in the Circuit Court of Mercer County. Nancy Marie Duling died while a patient in the Bluefield Sanitarium, Inc. At the conclusion of the taking of the plaintiff's testimony, the trial court directed a verdict in favor of the defendant and from judgment entered on that verdict, the plaintiff has appealed to this Court.

Bluefield Sanitarium, Inc., is a private hospital. It is conceded, therefore, that this is not a case for application of the charitable immunity doctrine as defined in prior decisions of this Court. Meade v. St. Francis Hospital, 137 W.Va. 834, 74 S.E.2d 405; Koehler v. Ohio Valley General Hospital Association, 137 W.Va. 764, 73 S.E.2d 673; Fisher v. Ohio Valley General Hospital Association, 137 W.Va. 723, 73 S.E.2d 667; Roberts v. Ohio Valley General Hospital, 98 W.Va. 476, 127 S.E. 318, 42 A.L.R. 968.

In the interest of further defining the questions presented for decision and narrowing their scope, we deem it pertinent to state that this is not a malpractice action against a physician. The competency of the attending physician and the professional skill employed by him in treating the patient were not questioned in the complaint or the proof of plaintiff's case. The case is based solely on alleged negligence of nurses employed by the defendant hospital, as distinguished from their lack of skill or competency in caring for or treating the patient.

At the time of her death in the defendant hospital, Nancy Marie Duling was thirteen years and eight months of age. Her father at that time was a member of the faculty of Concord College, which is located at Athens in Mercer County; and her mother was a teacher in the public school system. Nancy had a high intelligence quotient and until immediately prior to October 14, 1960, the date on which she was admitted to the defendant hospital as a patient, she had apparently enjoyed fairly normal health. On October 14, 1960, Dr. James Gatherum, a physician of Athens, was called to the Duling home to see Nancy in his professional capacity. Acting upon his advice, her parents took her in the afternoon of that day to the defendant hospital, where she was placed in the care of Dr. Henry F. Warden, Jr., a specialist in internal medicine.

Soon after the patient arrived at the hospital, Dr. Warden examined her in a preliminary sort of way, and, after she submitted to various tests at his direction, Dr. Warden saw her again in her private hospital room at approximately seven o'clock on the evening of the same day. Dr. Warden diagnosed her ailment as acute violent rheumatic fever with heart damage beginning. He told the mother that a special nurse would not be necessary and that she would be permitted to stay with the daughter in her room. The mother testified that Dr. Warden told her before he left the hospital at approximately seven o'clock that, if the patient should go into heart failure, she should have medical treatment immediately. The mother stayed with the patient until her death about one o'clock on the morning of October 16.

Before directing a verdict in favor of a defendant on the ground of the insufficiency of the plaintiff's proof, every reasonable inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court and all facts should be assumed as established which the jury might properly find in favor of the plaintiff from the evidence. Thornsbury v. Thornsbury, 147 W.Va. 771, pt. 4 syl., 131 S.E.2d 713; Lambert et al. v. Goodman et al., 147 W.Va. 513, pt. 1 syl., 129 S.E.2d 138; Spaur v. Hayes, 147 W.Va. 168, pt. 1 syl., 126 S.E.2d 187; Reilley v. Byard et al., 146 W.Va. 292, pt. 5 syl., 119 S.E.2d 650.

Proof of the alleged negligence on part of the nurses is embodied primarily in the testimony of Florena E. Duling, the mother of the deceased girl. She testified that she decided to get in touch with one of the nurses shortly after Dr. Warden left the hospital at approximately 7 p. m.; that she stepped into the hallway and saw a nurse she believed to be the head nurse on the floor; that she later learned that this nurse was Mrs. Pate; that the mother identified herself and asked the nurse whether she might speak to her concerning the patient; that she told the nurse that the daughter had rheumatic fever and she asked the nurse if she would check Nancy frequently during the night; that she received no reply from the nurse as she continued to walk in the hallway; that no nurse had been in the room to check Nancy between four and seven o'clock, when Dr. Warden visited her; that the nurses' desk was immediately across the hallway from Nancy's room, a distance of about six steps; that by eight o'clock Nancy was coughing almost constantly; that the mother suggested to Mrs. Pate that a soft drink might cause Nancy's cough to abate, but that Mrs. Pate stated: 'I have no way of getting soft drinks at this time in the eventing for patients. If you want one, go downstairs to the machine and get it;' and that Mrs. Pate in her attitude was 'very nasty,' 'grouchy,' and 'rude.'

Mrs. Duling testified further that she was constantly endeavoring to reassure her daughter, who had become quite apprehensive; that the mother meantime read to the daughter from the Bible and that she and the daughter discussed Christmas and possible gifts for the several members of the family; that the daughter developed a fever and could not stand bed covers on her; that meantime Mrs. Pate did not come into the patient's room or take her temperature, though the mother advised the nurse that Nancy apparently had a very high fever; that the mother had no means of testing the child's temperature; that the nurse authorized the mother to sponge the child's body with a wet towel; that by that time the child's heart 'was beginning to pound' to such an extent that it shook the mattress of the bed; that by nine o'clock the mother noticed blueness of the child's nails which she reported to the nurse; that the nurse told the mother to go back and sit down; that the mother repeatedly requested the nurse to come into the room merely to check the child's condition, saying, 'Please come and check my child;' that between nine and ten o'clock the mother pressed the button near the child's bed...