Emory University v. Lee
| Decision Date | 14 May 1958 |
| Docket Number | No. 1,No. 37128,37128,1 |
| Citation | 104 S.E.2d 234,97 Ga.App. 680 |
| Parties | EMORY UNIVERSITY v. C. W. LEE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where there is competent evidence authorizing the verdict, a motion for new trial and a motion for judgment notwithstanding the verdict based on the contention that the evidence was insufficient to support the verdict and demanded a contrary verdict are properly overruled.
2. Ordinarily motions for mistrial because of improper conduct of jurors or parties are addressed to the sound discretion of the trial judge.
3. A request to charge must be correct, even perfect. One of the ingredients of perfection required is that the instructions called for must in their every part be applicable to the issues made by the pleadings and the proof.
4. A request to charge presented in banc must be refused if the instructions invoked be in part incorrect, though the desired charge also include a sound statement of the law applicable to the issues of the case.
5. In order to determine whether a portion of the charge of the court is error, the charge must be construed as a whole. Brooks v. State, 19 Ga.App. 45, 90 S.E. 971; Howard v. Macon Ry. & Light Co., 17 Ga.App. 55, 86 S.E. 256.
6. One entirely bereft of reason is not required to exercise any degree of care.
Clarence W. Lee brought suit in the Superior Court of De Kalb County. The petition named Emory University d/b/a Emory University Hospital, a corporation, defendant, set forth the necessary jurisdictional facts and alleged in substance: that the defendant had injured and damaged the plaintiff in a named sum; that the defendant at all times mentioned therein maintained and operated a hospital in De Kalb County known as Emory University Hospitaly and held itself out to the general public as providing hospital care charging all persons who availed themselves of its facilities; that on September 18, 1955, the plaintiff was stricken with a heart attack and was admitted to the defendant's hospital as a patient under the obligation to pay for the services the hospital furnished and did actually pay for the same; that the plaintiff was assigned to a private room on a designated floor of the hospital; that immediately after the plaintiff was admitted to the hospital and through September 22, 1955, agents of the hospital not known to him administered to him various sedatives, including morphine, the quantity, frequency and exact amount of which he did not know; that these drugs were administered to the plaintiff by the defendant's agents in the regular course of its business; that at all times after the plaintiff was given the sedatives on September 18, 1955 through 4 a. m. Thursday, September 22, 1955, he had no knowledge of what was going on about him and was incapable of making any decisions whatever or of controlling his actions so as not to cause himself or others bodily harm; that the hospital authorities, through its employee, Miss Mann, a registered nurse assigned by the defendant to the floor of the hospital on which the plaintiff's room was located had notice on September 21, 1955 that the plaintiff was incapable of controlling his actions and would cause himself or others bodily harm; that on Wednesday Miss Mann notified his wife that it would be necessary to have a private nurse with him throughout the night of September 21st in order to keep him in the bed as he had gotten out of bed twice during the day; Miss Mann stated the hospital had a practical nurse to render that service; that Mrs. Carmen Underwood was contacted through the defendant to attend the plaintiff from 11 p. m. September 21 until 7:00 a. m. September 22, 1955; that Mrs. Underwood was a frail woman over fifty years of age, weighing 90 pounds, while the plaintiff was a 54 year old male weighing 170 pounds; that prior to going on duty Mrs. Underwood was informed by Miss Mann that the petitioner had attempted to get out of bed during the day because he had been given morphine and that she would have to keep him in bed; that at the time the defendant, through its employee, Miss Mann, knew that Mrs. Underwood was a frail and light person and would not be able to physically restrain the plaintiff from getting out of his bed; that between 3 and 11 p. m. on September 21, 1955, an employee of the defendant raised the sides of the bed on which the plaintiff lay so as to have the top of the sides approximately two feet above the level upon which he lay; that when Mrs. Underwood went on duty as the plaintiff's nurse the sides of the bed were up; that at approximately 3 a. m. on September 22, 1955, Dr. Kitchens, a medical intern employed by the defendant, came into the room and lowered the rails on one side of the bed in order to administer to the plaintiff a shot from a hypodermic syringe; that at the time the defendant, through its agent, Dr. Kitchens, knew or should have known by the exercise of ordinary skill and care as a medical doctor that the plaintiff was incapable of knowing what he was doing and was incapable of controlling his actions that would cause himself or others bodily harm, and that if the plaintiff became excited or aroused he might do bodily harm to himself or others; that after administering the hypodermic, Dr. Kitchens left the plaintiff's room without raising the side of the bed which he had previously lowered, and told Mrs. Underwood to raise the side back to a position where the top was approximately two feet above the surface upon which the plaintiff lay; that Mrs. Underwood attempted to raise the side of the bed, and the plaintiff grabbed hold of her and then raised himself into a sitting position on the bed and placed both of his legs over the side of the bed; that at the time, Trammell Vickery, an oxygen therapist employed by the defendant's hospital, was called to the plaintiff's room by Dr. Kitchens to administer oxygen to the plaintiff; that when Vickery went into the plaintiff's room and found him sitting upon the side of the bed he stated to the plaintiff that he was going to administer oxygen to him; that the plaintiff stated to Vickery that he would not subject himself to the administration of the oxygen and that Vickery was trying to harm him; Vickery then knew that the plaintiff did not realize what he was doing and was in a state of mind where he might do harm to himself or someone else; that Vickery removed himself from the room and went immediately to Dr. Kitchens and stated to him that the plaintiff refused to allow Vickery to administer oxygen to him as ordered another the plaintiff was in a state of mind where he might do harm to himself or others; that at the time the defendant, through its agent, Dr. Kitchens, knew or should have known by the exercise of ordinary care and diligence that an attempt to administer oxygen by use of oxygen tank and nasal catheter would frighten the plaintiff and cause him to do harm to himself if he was not physically contained in bed; that after being informed by Vickery of the plaintiff's condition, Dr. Kitchens went into the plaintiff's room and told him that he was going to be subjected to the administration of oxygen; that the plaintiff then exclaimed that Dr. Kitchens was trying to kill him and picked up a footstool and made threatening motions toward Dr. Kitchens and Vickery; that immediately thereafter Dr. Kitchens and Vickery removed themselves from the room and Dr. Kitchens ordered Mrs. Underwood to remove herself from the room stating that the plaintiff would settle down in a few minutes; that at the time the defendant, through its agent, Dr. Kitchens, should have known through the exercise of ordinary care and diligence, that if the plaintiff was not physically contained in his room, he would remove himself from the room and cause harm to himself or to others; that after Dr. Kitchens, Vickery and Mrs. Underwood had left the room, the plaintiff laid aside the footstool and proceeded out of his room toward the end of the hall on which his room was located; that as he proceeded down the hall he passed Dr. Kitchens and Vickery who were standing at the duty desk located approximately one-half of the way between his room and the end of the hall; that as he passed by Dr. Kitchens, Dr. Kitchens did not dry to restrain him or in any manner summon aid to restrain him; that the plaintiff proceeded down to the end of the hall and attempted to go into a room on the right hand side of the hall but was restrained by a Mrs. Harris, a nurse employed by the defendant, by closing the door, whereupon he went into the utility room at the end of the hall, climbed upon some chairs and fell from the window in the utility room to the ground below, which was approximately twenty feet from the window; that the fall resulted in the fracture of the femur in the plaintiff's right leg, fracture and concussion of his skull, broken nose, a fractured jaw as well as contusion and abrasion of his lower lip requiring six stitches; that the plaintiff was by said injuries permanently disabled, that he suffered great pain and suffering and that he incurred detailed expenses caused by the incident to the treatment of his injuries. The petitioner charged that the defendant was negligent in the following particulars: (a) The failure of the defendant hospital through its nursing service to supply a nurse capable of physically controlling petitioner, when it was known to the defendant that a nurse so obtained should have been physically capable of physically restraining the petitioner; (b) The failure of the defendant, through its agents, Miss Mann and Dr. Kitchens, to supply attendants to control your petitioner; (c) The failure of the defendant through its agent, Dr. Kitchens, to replace the sides on petitioner's bed; (d) Attempt on the part of Dr. Kitchens as an agent of the defendant to try to administer oxygen to your petitioner after said agent knew...
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