Falcher v. St. Luke's Hospital Medical Center

• Decision Date: 20 February 1973
• Docket Number: No. 1,CA-CIV,1
• Citation: 506 P.2d 287,19 Ariz.App. 247
• Parties: Edna M. FALCHER, now known as Edna M. Falcher Gent, Appellant, v. ST. LUKE'S HOSPITAL MEDICAL CENTER, an Arizona corporation, Patty J. Ryan, M.D., and Sue Mulvihill, Appellees. 1760.
• Court: Arizona Court of Appeals

Page 287

506 P.2d 287

19 Ariz.App. 247

Edna M. FALCHER, now known as Edna M. Falcher Gent, Appellant, v. ST. LUKE'S HOSPITAL MEDICAL CENTER, an Arizona corporation, Patty J. Ryan, M.D., and Sue Mulvihill, Appellees.

No. 1 CA-CIV 1760.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 20, 1973.

Rehearing Denied March 19, 1973.

Review Denied April 17, 1973.

Barry Allen Reiss, Sheldon Mitchell, Phoenix, for appellant.

Moore, Romley, Robbins & Green by Craig R. Kepner, Phoenix, for appellees St. Luke's Hospital and Mulvihill.

Renaud, Cook, Miller & Cordova, P.A. by John H. Seidel, Phoenix, for appellee Ryan.

EUBANK, Presiding Judge.

The main issue raised on appeal by this medical malpractice case is whether the trial court erred in refusing to instruct the jury on the doctrine of Res ipsa loquitur.

The plaintiff-appellant Edna M. Falcher, hereafter 'plaintiff', filed a medical malpractice action against appellees St. Luke's Hospital Medical Center, hereafter 'Hospital', Patty J. Ryan, M.D., hereafter 'Dr. Ryan', and Sue Mulvihill, hereafter 'Nurse'. This appeal is from an order of the trial court granting Dr. Ryan a directed verdict at the close of plaintiff's case, from the jury verdict and judgment in favor of the Hospital and Nurse, and from the denial of plaintiff's motion for a new trial.

The facts are as follows: At 6:00 A.M. on April 28, 1969, plaintiff arrived by ambulance at the Emergency Room of St. Luke's Hospital in a state of mental disorientation. She was extremely restless, incoherent, tremulous, and was hyperventilating. Dr. Ryan and Nurse were on duty at the Emergency Room and they were informed by plaintiff's husband that he had been awakened sometime earlier that morning to find his wife gasping for breath, incoherent and unresponsive. Plaintiff was placed on a hospital cart in one of the examining rooms and checked by Dr. Ryan who made a preliminary diagnosis of hyperventilation syndrome; however, the doctor was unable to determine the exact cause of plaintiff's condition. An orderly was summoned to attend plaintiff and a tranquilizing medication was administered.

At approximately 7:15 A.M. Nurse gave the orderly permission to leave the emergency room without first receiving authorization from, or notifying, Dr. Ryan. The doctor again saw plaintiff briefly at 7:20 A.M. and testified that at that time the patient was much improved, having regained coherency sufficiently to complain of nausea and heartburn, which occasioned her to prescribe Maalox. At this time the patient no longer appeared restless. Dr. Ryan also noticed that the orderly was no longer in the examining room with the patient. She stated that she did not know that he had been dismissed, but that in her professional judgment the patient was not, as of that time, in need of restraint or constant attendance.

Several minutes later Nurse returned to plaintiff's bedside with the cup of Maalox which Dr. Ryan had ordered. She found plaintiff sitting up in the hospital cart, staring straight ahead, and verbally unresponsive. Nurse was unable to lay the plaintiff back down on the cart so she left her alone in the examining room and went into the admitting area, some twelve feet distant, to summon the doctor. At that moment Dr. Ryan was on the telephone. While the nurse waited for the conversation to be completed, a sound was heard from the examining room. Both the Doctor and Nurse immediately returned to the examining room and found that plaintiff had fallen from the hospital cart and was lying on the floor, face down, bleeding freely from her head. It was determined that as a result of her fall, plaintiff had sustained a broken clavical, laceration of her scalp and abrasions and contusions about her body. It was the act of leaving the plaintiff unattended, without restraints and the subsequent fall which forms the basis of plaintiff's malpractice action.

Dr. Ryan admitted that she had not, at the time plaintiff fell, made a diagnosis of the cause of plaintiff's initial illness and that, had the orderly still been in the room when she fell he might have prevented some of her injuries. She also testified that the emergency room was not crowded that morning, and additional assistance was available as needed.

Dr. Frederick C. Scott, a private practitioner familiar with local emergency room standards and practices, testified that the Nurse's action in leaving the patient unattended while she went a short distance for the doctor did not fall below the standard of care within the community, because there 'was no immediate danger' to the patient and she was not a 'threat to herself'. He also concurred in Dr. Ryan's testimony that the decision to restrain a patient is 'one of the medical judgments and one decision that is made by a physician'. Dr. Scott did state, however, that in his expert opinion the Nurse's action in dismissing the orderly without the Doctor's permission or knowledge did not conform to the standard of practice in the medical community.

As a preliminary matter, the plaintiff failed to observe the requirements of Rule 5(b)7, Rules of the Supreme Court, 17 A.R.S. relating to questions presented for review or Rule 5(b)10, Rules of the Supreme Court, 17 A.R.S., requiring that instructions complained of be set forth In haec verba in the appendix of the opening brief. Although this failure to comply with the rules permits us to decline to consider the issue raised, State v. Madden, 104 Ariz. 111, 449 P.2d 39 (1969); State v. Hill, 11 Ariz.App. 230, 463 P.2d 125 (1969), we note that the issues raised were clear and that the appellees had no trouble responding to the arguments raised. In addition, since we affirm the various orders and judgment, we can ascertain no disadvantage to the appellees in considering the merits of the case.

RES IPSA LOQUITUR

Plaintiff argues that 'the doctrine of Res ipsa loquitur applies in a case where a semi-conscious, totally dependent plaintiff, while unattended and unobserved by any hospital employee or attending doctor, falls from a cart in the emergency room of the defendant hospital, thereby sustaining injuries.'

We recently discussed the application of the Res ipsa loquitur doctrine to medical malpractice cases and reviewed the applicable law in Fairs v. Doctors Hospital, Inc., 18 Ariz.App. 264, 501 P.2d 440 (1972) and we do not deem it necessary to repeat that analysis here. Suffice it to say that initially the doctrine will be applied only when it is a matter of common knowledge among laymen or medical men, or both, that the injury would not ordinarily have occurred if due care had been exercised. Fairs v. Doctors Hospital, Inc., supra; Dow v. Kaiser Foundation, 12 Cal.App.3d 488, 90 Cal.Rptr. 747 (1970); Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957).

The mere fact that an occurrence is rare does not automatically lead to the conclusion that it was more likely than not caused by someone's negligence. Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702 (1959); Silverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97 (1962). In the instant case no witness, medical or lay, testified that the admittedly unusual event of a patient falling off a hospital cart is more probably than not the result of negligence.

Further, the circumstance that the patient is unconscious at the time of the accident, while it may bear on the fourth requirement for the application of Res ipsa loquitur as enumerated in Capps v. American Airlines, Inc., 81 Ariz. 232, 303 P.2d 717 (1956) ¹ does not always dictate application of the doctrine. See Faris v. Doctors Hospital, Inc., supra. To infer negligence in every case in which an injured patient is under anesthetic or otherwise unconscious would place an impossible burden on the medical profession. Salgo v. Leland Stanford Jr. University Board of Trustees, supra.

The narrow question of a patient falling from a hospital bed has not previously been before our Court, but the California appellate courts have repeatedly addressed themselves to that circumstance. In reviewing jury instructions on Res ipsa loquitur and the common knowledge of lay persons that such falls do not ordinarily occur in the absence of negligence, the California Court of Appeals summarized the law of that jurisdiction as follows:

'It is concluded that the...