Fleming v. Baptist General Convention of Oklahoma, 54711
| Decision Date | 23 June 1987 |
| Docket Number | Nos. 54712,No. 54711,54856 and 54857,54711,s. 54712 |
| Parties | Amos J. FLEMING and Joyce H. Fleming, Appellees, v. The BAPTIST GENERAL CONVENTION OF OKLAHOMA d/b/a Miami Baptist Hospital, et al., Appellant. (consolidated.) |
| Court | Oklahoma Supreme Court |
Grigg, Richards & Paul by John R. Paul, Tulsa, for appellant.
Stephen C. Wolfe, Tulsa, for appellees.
Amos and Joyce Fleming brought the instant action against the Baptist General Convention of the State of Oklahoma, doing business as Miami Baptist Hospital, and Glenn W. Cosby, M.D. As originally brought, the action also named a drug manufacturer as defendant. That defendant is no longer a party to the action. This action sought recovery for damages resulting from an injection of two drugs into the left thigh of Mrs. Fleming which caused personal injury.
The cause was tried to a jury and on December 11, 1979, the jury returned a verdict in favor of defendant Cosby, M.D., and against the remaining defendant, Miami Baptist Hospital, in the amount of $60,000.00. Defendant hospital now appeals. No appeal is prosecuted against the defendant's verdict in favor of Dr. Cosby and he is not a party to this appeal.
By order of October 20, 1980, this Court consolidated four separate appeals numbered 54,712, 54,856, and 54,857 under the surviving number, 54,711, and the parties submitted one series of briefs applicable to all appeals.
As originally brought, the action contained a setoff and counterclaim against plaintiff, Joyce Fleming, for unpaid medical bills owed to the defendant hospital. That claim was severed for trial and is not yet at issue.
Briefly, the facts disclosed by the transcript of the trial are that Joyce Fleming had a chronic history of severe pain originating from the kidneys, back and migraine headaches for many years. In 1968 her personal physician of several years prescribed a standing order for Talwin and Atarax to be given together, on demand. Thereafter, from September, 1968 through October 18, 1971, she went to the emergency room of the Miami Baptist Hospital and received at least 301 separate intramuscular injections of the drugs. Because of the number of injections, plaintiff was injected on sites rotated between arms, thighs and buttocks. In addition to these injections, Mrs. Fleming received injections in 1970 at her home which were administered by her mother.
On October 19, 1971, Mrs. Fleming was taken to defendant's emergency room before dawn for an injection for migraine. A member of the hospital staff prepared the injection and administered it into the left thigh. Plaintiff experienced immediate pain and by the time she had returned home the injection site began discoloring. She consulted Dr. Cosby about the condition that afternoon. The following day she was admitted to the hospital for treatment of the problem. The deterioration of the flesh at the injection site continued to grow progressively worse. The skin and subcutaneous tissue down to the fascia deteriorated and gangrene set in. The skin and subcutaneous tissue eroded and, after the tissue death had run its course, the plaintiff required two skin grafts to close the wound. The nature of the injury and the treatment given necessitated the injury to remain open until late December, over two months.
Plaintiff attempted to recover against the doctor, theorizing the injury was a result of his prescription which allowed plaintiff to receive too many shots under proof that injections, of themselves, harm the body and can precipitate or contribute to the injury experienced. Plaintiff proceeded against the hospital under the theory and proof that the injection which precipitated this injury was not given deep into the muscle as it was intended to be given, but into the fat between the skin and muscle, or the subcutaneous tissue. Additionally, plaintiff sought to apply the doctrine of res ipsa loquitur to this injury, thus the plaintiff was entitled to an inference that negligence in administering the injection caused the injury.
The defendant Miami Baptist Hospital contends that the trial court committed error in overruling the defendant hospital's demurrer to plaintiff's evidence, motion for directed verdict, and motion for judgment notwithstanding the verdict. The basis for this argument is the contention that there is a total lack of evidence to support either the theory of specific negligence against the hospital or a res ipsa loquitur theory. The specific negligence alleged against the hospital is the theory that the Atarax and Talwin injection was given subcutaneously rather than intramuscularly. Defendant contends the doctrine of res ipsa loquitur is not available in this type of instance where the injury is a result of an improper injection. Additionally, defendant contends there is a lack of evidentiary basis for application of the doctrine in this cause.
Insofar as the defendant contends there is no evidentiary basis for submission of the theory of negligence on the part of the hospital to the jury, that point of error must be refused. Defendant contends there is no evidence the injection was given subcutaneously. Defendant states the entire theory that the injury was caused by a subcutaneous injection of Atarax comes from the testimony of Dr. Pat Fite. It is contended that opinion is mere conjecture because that opinion was his conclusion drawn from observed facts. Defendant cites several cases stating that where there is no evidence submitted in the trial of a personal injury action to establish primary negligence on the part of the defendant, it is proper to sustain a demurrer to the evidence or direct a verdict for the defendant. Admittedly, this is a correct statement of the law. However, an examination of the evidence in this case will not support its applicability here. An examination of the thousand-plus page transcript of the trial discloses the following testimony of Dr. Fite beginning at p. 371:
"Q. Now, Doctor, based on those facts, do you have an opinion as to whether or not Mrs. Fleming sustained an injury from the shot injected into her lateral left thigh in the emergency room of Miami Baptist Hospital at approximately 5:30 on October 15, 1971?
* * *
A. Yes, sir.
Q. And what is that opinion?
A. From the history and subsequent followup on it and surgeries and all and the catastrophic onset, she very obviously had immediate damage to the soft tissues of the anterior lateral left thigh where she received her shot.
Q. Do you have an opinion as to why she received such injury?
A. Yes, sir.
Q. And what is that, please, sir?
* * *
A. She received a shot of combined drugs, the Talwin and Atarax, and with immediate severe pain and it wasn't delayed or anything of this nature, it was right at the immediate time, in fact during the--while the shot was still being given, and it is my opinion that this was injected into the subcutaneous tissue.
There is no evidence at any time later on of any disruption or slough of the deeper muscle or the covering of the muscle, the fascia, nor did it slough out, die, or become involved, and so whatever happened, it happened in the subcutaneous tissue.
* * *
Q. Do you have an opinion, Doctor, as to whether or not it constitutes proper medically accepted practice to inject the shot such as was injected into the thigh of Mrs. Fleming subcutaneously?
* * *
A. Not the Atarax. No way."
Defendant's brief tacitly admits that evidence of an opinion as to causation exists through the testimony of Dr. Fite, but it is contended the quality of this opinion evidence is suspect, in that it was his conclusion from the recorded facts. It is stated this conclusion is "improbable". However, the test for granting a demurrer to the evidence or motion for a directed verdict does not refer to improbable evidence. Neither motion should be granted unless there is an entire absence of proof to show any right of recovery. Fletcher v. Meadow Gold Co., 472 P.2d 885 (Okl.1970). In an action of legal cognizance, a demurrer to plaintiff's evidence or motion for directed verdict should be overruled unless there is an entire absence of proof tending to show a right to recover; and in passing upon a demurrer to the evidence or motion for directed verdict, the trial court must consider true all evidence against which the demurrer or motion is directed together with all inferences that may reasonably be drawn therefrom, and disregard all conflicting evidence favorable to the demurrant. Condo v. Beal, 424 P.2d 48 (Okl.1967).
Considering the plaintiff's evidence as true, as this Court must, it is apparent that causation and negligence were established through the opinion testimony of plaintiff's expert witness. Similarly, the quoted testimony establishes a breach of duty, thus it is seen that the trial court did not err in submitting the case to the jury on the issue of specific negligence. Also, no error is found in the trial court's overruling defendant's demurrer to the evidence and motion for directed verdict, as well as the motion for judgment N.O.V.
This conclusion leads directly to the alleged error of the trial court in overruling the defendant's motion for new trial on the ground that the court erred in submitting the case against the hospital to the jury upon both the theories of "specific" negligence and res ipsa loquitur. Title 76 O.S.1981 § 21 provides a presumption of negligence in any action arising from the rendering of medical care if the patient sustains an injury proximately caused by an instrumentality solely within the control of the defendant where such injury does not ordinarily occur absent negligence on the part of the defendant. In Middlebrook v. Imler, Tenny & Kugler M.D.'S, Inc., 713 P.2d 572 (Okl.1985), this Court held that, under the provisions of § 21, res ipsa loquitur and direct proof of negligence may be simultaneously submitted to...
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