Foley v. Bishop Clarkson Memorial Hospital

Decision Date23 January 1970
Docket NumberNo. 37284,37284
Citation185 Neb. 89,173 N.W.2d 881
PartiesWilliam M. FOLEY, Jr., Special Administrator of the Estate of Jane Foley, Appellant, v. BISHOP CLARKSON MEMORIAL HOSPITAL, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. The proper measure of the duty of a hospital to a patient is the exercise of that degree of care, skill, and diligence used by hospitals generally in the community where the hospital is located or in similar communities.

2. Proof of a violation of hospital standards or regulations is not conclusive on the question of negligence, but is simply evidence of negligence.

3. A hospital must guard, not only against Known physical and mental conditions of patients, but also against such conditions as it should have discovered by the exercise of reasonable care.

Lathrop & Albracht, Daniel G. Dolan, Dennis T. Chapman, Omaha, for appellant.

Cassem, Tierney, Adams & Henatsch, Charles F. Gotch, Omaha, for appellee.


NEWTON, Justice.

This action is brought by William M. Foley, Jr., special administrator of the estate of Jane Foley, deceased, to recover for her death. Jane Foley was delivered of a child in the defendant hospital and thereafter developed a severe beta hemolytic streptococcus infection which caused her death approximately 31 hours after the birth of her child. At the conclusion of plaintiff's evidence, the trial court sustained defendant's motion for a directed verdict and entered judgment for defendant. We reverse the judgment of the district court.

Viewing the evidence from a standpoint most favorable to plaintiff, the following facts appear.

During her pregnancy, Jane Foley had consulted with and was under the care of a private physician. She entered the hospital at 5:20 a.m. on August 20, 1964, gave birth at 2:30 p.m. on that day, and died at 9:15 p.m. the following day. She had been treated by her physician for a sore throat during July and August 1964, and several days after her death, one of her children was treated in the hospital for a 'strep throat.' There is no evidence in the record that Mrs. Foley made complaint of a sore throat while in the hospital. One nurse testified that an intern was called who checked her chest, throat, and abdomen at about 7:30 p.m. on August 20. At that time she had told the nurse she had had a cold throughout her pregnancy and a severe sore throat 2 weeks before. There were two interns in the hospital. The one thought by the nurse to have been called denied examining Mrs. Foley, but admitted he was called and the other said he had no recollection of Mrs. Foley or her case.

The hospital rules require that a history and physical examination shall be written promptly on admission of a patient, with 24 hours considered as the limit of promptness. One rule states: 'All necessary admission information is collected with particular attention to possibility of infection. Suspicion of infection is reported to the physician immediately.' No history was taken although Mrs. Foley was examined several times in regard to the progress of child labor. After delivery she complained of pain and discomfort and said she had had severe cramping after the birth of a previous child. Such symptoms are not unusual in postpartum patients.

Mrs. Foley's normal blood pressure on admission was 112 over 80. Normal pulse is 64, normal temperature, 98.6 degrees, and normal respiration, 16 to 18 per minute. These elements are regarded as vital signs. Five hours after delivery, Mrs. Foley's blood pressure was 110 over 70, her pulse 126, her temperature 102.2, and her respiration 28. At this time the intern was sent for to check Mrs. Foley. The evidence of the nurse and the intern is conflicting as to whether he actually saw her and made such check. Aspirin was given to reduce the temperature which then dropped to normal, 12 hours after delivery. Codeine was given, and ice applied to the lower abdomen, to control pain. The codeine and ice were administered contrary to the orders of the attending physician. The physician also ordered that a blood count be taken within 24 hours of admission. This was not taken until 32 hours after admission and after her condition had become critical.

One of the hospital rules provides: 'The patient must be observed closely by an experienced nurse, interne, or physician for uterine relaxation, hemorrhage, elevation or drop in blood pressure or pulse, and other symptoms of complications.' Another rule provides in part as follows: 'The interne shall immediately examine a patient when he is notified of any unusual occurrence or change in the patient's condition. He shall notify the attending physician of any significant change. This applies to all antepartum, intrapartum, and postpartum patients. In the event that the attending physician is not immediately available to receive a report of a change in condition of a patient, the interne shall follow orders at present existing in the department. He shall notify the attending physician, as soon as possible, of the occurrence and what treatment the interne ordered for the patient.' The intern stated in his subsequent report that apparently Mrs. Foley 'did quite well until approximately seven-thirty p.m.' on her first day in the hospital. He apparently recognized that there was a change in her condition at that time yet he failed to call her attending physician. In this regard, one of the attending nurses testified that at that time, following postpartum, a temperature of 102 and a pulse of 126 constituted an unusual occurrence, one not out of the ordinary, but one which good nursing practice would require notifying the attending physician.

Plaintiff's medical expert attributes her death to the failure to obtain a history indicating she had a cold, the failure to do anything more than administer aspirin at 7:30 p.m. on August 20, 1964, when her temperature, pulse, and respiration increased, failure to notify the attending physician, and the administering of codeine and ice. Had she received proper care at that...

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  • Elam v. College Park Hospital
    • United States
    • California Court of Appeals Court of Appeals
    • May 27, 1982
    ...(1976) 64 Mich.App. 685, 236 N.W.2d 543, 550; Gridley v. Johnson (Mo.1972) 476 S.W.2d 475, 484; Foley v. Bishop Clarkson Memorial Hospital (1970) 185 Neb. 89, 173 N.W.2d 881, 884-885; Corleto v. Shore Memorial Hospital (1975) 138 N.J.Super. 302, 350 A.2d 534, 537-538; Felice v. St. Agnes Ho......
  • Durflinger v. Artiles
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 27, 1984
    ...mental conditions when the condition is discoverable by the exercise of reasonable care. Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 94-95, 173 N.W.2d 881, 884-85 (1970). See Skar v. City of Lincoln, Neb., 599 F.2d 253, 258 n. 5 (8th Cir.1979). These cases from Nebraska and oth......
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    • October 17, 1995
    ...v. Tongen, 262 N.W.2d 684, 703-704 (Minn.1977); Boland v. Garber, 257 N.W.2d 384, 386 (Minn.1977); Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 173 N.W.2d 881, 884 (1970); Stone v. Proctor, 259 N.C. 633, 131 S.E.2d 297, 299-300 (1963); Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783,......
  • Durflinger v. Artiles
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    • Kansas Supreme Court
    • December 2, 1983
    ...mental conditions when the condition is discoverable by the exercise of reasonable care. Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 94-95, 173 N.W.2d 881, 884-85 (1970). See Skar v. City of Lincoln, Neb., 599 F.2d 253, 258 n. 5 (8th Cir.1979). These cases from Nebraska and oth......
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