Franklin v. Collins Chapel Connectional Hosp.

• Decision Date: 24 April 1985
• Citation: 696 S.W.2d 16
• Parties: Alton FRANKLIN and Claude Lee Franklin, Administrators of the Estate of George Franklin, Plaintiffs/Appellants, v. COLLINS CHAPEL CONNECTIONAL HOSPITAL, Defendant/Appellee. 696 S.W.2d 16
• Court: Tennessee Court of Appeals

Page 16

696 S.W.2d 16

Alton FRANKLIN and Claude Lee Franklin, Administrators of the Estate of George Franklin, Plaintiffs/Appellants, v. COLLINS CHAPEL CONNECTIONAL HOSPITAL, Defendant/Appellee.

696 S.W.2d 16

Court of Appeals of Tennessee Western Section.

April 24, 1985.

Application for Permission to Appeal

Denied by Supreme

Court Aug. 12, 1985.

Joel Porter of Burch, Porter & Johnson, Memphis, for plaintiffs/appellants.

Leo Bearman, Jr. and Sam Blair, Jr., of Heiskell, Donelson, Bearman, Adams, Williams & Kirsch, Memphis, for defendant/appellee.

TOMLIN, Judge.

This appeal involves the application of the doctrine of res ipsa loquitur. Plaintiffs, administrators of the estate of the decedent, George Franklin, (hereafter "plaintiffs") brought suit against the Collins Chapel Connectional Hospital, a/k/a Collins Chapel Health Care Center (hereafter "defendant" or "nursing home") for the wrongful death of their decedent, alleging that thermal burns incurred by decedent while a patient in the nursing home contributed to his death. The case was tried to a jury in the Circuit Court of Shelby County and resulted in a verdict for defendant. Plaintiffs present three issues by this appeal:

(1) that the trial court erred in refusing to instruct the jury on res ipsa loquitur; (2) that the trial court erred in excluding certain opinion testimony by one of decedent's treating doctors as to whether thermal burns ordinarily happen to a patient in a nursing home in the absence of negligence; and (3) that there was no material evidence to support the jury's verdict. Inasmuch as we reverse the trial court and remand the case for a new trial, based upon the court's failure to charge the jury on res ipsa loquitur, the third and final issue is pretermitted.

Franklin, age 82, was admitted to the nursing home in February, 1980. He suffered from, among other things, senility, high blood pressure, and incontinence, both as to bowels and bladder. At the time of the alleged occurrence of the injuries sued for he was taking a multitude of drugs. On the morning of November 2, 1980, Franklin was given a bath by the orderly on duty. After being bathed and dressed, the orderly placed Franklin in a chair near the nurses' station and secured him with lawful restraints that had been prescribed by Franklin's doctor. Some two hours or so later, when the orderly returned to check on Mr. Franklin and to get him ready for his lunch he discovered that, due to his incontinency, Mr. Franklin had wet his pants. When he began to clean him up the orderly noticed blisters on Franklin's left leg, whereupon he contacted the LPN on duty. Upon coming to Franklin's aid the LPN observed profuse perspiration, shaking, and elevated blood pressure. She also observed blisters on Franklin's left leg and hand. The patient was transported immediately by ambulance to Methodist Hospital.

At the hospital emergency room Franklin was examined by a Dr. Witherington, an internist, who found blisters on his buttocks and leg region that were consistent with burns. Dr. Witherington's first impression was that the condition resembled an allergic-type reaction. While he considered three causes of the burns, he came to the conclusion that they were thermal burns. In addition, a skin biopsy ordered by Dr. Witherington found the skin specimen to be consistent with a thermal burn injury.

Franklin was also treated by Dr. Owens, a surgeon, who stated that upon examining Franklin he found burn injuries on his left arm, back, and both legs. He was of the opinion that the injuries suffered by Franklin were thermal burns caused by heat from air, liquid or solid. His final diagnosis was first, second and third degree thermal burns. Neither doctor was able to obtain a history from Franklin, as he was semi-comotose when he was brought into the hospital and never improved sufficiently to give a history as to the cause of his injuries.

Franklin was also observed in the emergency room of the hospital by Sergeant Bolden of the Memphis Police Department, who was assigned to investigate the incident. He testified that he observed blisters on Franklin's left hand, as well as on the left side of his body. Franklin remained in the hospital from November 2, 1980, until January 12, 1981. On that date he was discharged to another nursing home but was returned to the hospital on January 28, 1981, where he died on February 6, 1981. While Franklin's death was a result of numerous factors, there was medical testimony to the effect that the burn injury of November 2, 1980 contributed to his death.

Plaintiffs' complaint alleged that Franklin suffered burns while in the care and custody of defendant, and that they were caused when defendant's employee placed him in a tub of hot water, thereby scalding him. They allege seven specific acts of negligence on the part of defendant and its employees. The acts of negligence charged to defendant were set forth with specificity in plaintiffs' complaint as follows:

(a) In placing plaintiffs' decedent, George Franklin in scalding hot water which was sufficiently hot to cause second and third degree burns;

(b) In permitting George Franklin, who was in the care, custody and control of defendants, to sustain second and third degree burns;

(c) In failing to secure prompt emergency treatment for George Franklin after the said burns had been sustained;

(d) In tying George Franklin to a chair for approximately two hours after the said burns had been inflicted upon him;

(e) In maintaining plumbing which permitted hot water temperatures sufficient to inflict second and third degree burns;

(f) In failing to discover the aforesaid burns within a reasonable time after same had been inflicted;

(g) In failing to exercise reasonable and ordinary care under the circumstances.

Their complaint also seeks to invoke the doctrine of res ipsa loquitur, stating that the burns constituted an accident that does not occur in a nursing home absent negligence, and that the deceased was in defendant's sole care, custody and control.

I. APPLICABILITY OF RES IPSA LOQUITUR.

Clearly, plaintiffs' paramount issue in this appeal is whether or not the trial court was in error in failing to charge the jury on the doctrine of res ipsa loquitur. For us to make a determination as to whether or not the trial court erred in this regard requires us to review the facts in some detail. A review of the record establishes that at the time of the occurrence Mr. Franklin, suffering from senility, high blood pressure and incontinence, was a patient in defendant's nursing home. He had to be secured to chairs by restraints when left alone. Mr. Franklin was in the exclusive care, custody, and control of defendant. The record also reveals that on the morning of November 2, 1980, he was given a bath by an employee of the defendant, and that an hour or two later blisters were observed on his left hand, left side, left leg and foot and right leg by defendant's orderly, floor nurse, and a police officer who investigated the incident.

Two treating physicians testified that they observed burns on various parts of Franklin's body, generally as above described, and in their opinion these burns were thermal burns--that is, burns caused by heat from a source of air, liquid or a solid. The doctors' testimony was supported by a pathologist's report. The medical testimony as to the nature and source of Franklin's burns was uncontradicted.

Defendant's orderly testified that he did in fact give Franklin a bath on that Sunday morning, but that prior to placing him in the bath he tested the water with a thermometer; the water registered about 80 degrees. After placing Franklin in the water, the orderly had his hands and arms in the water up to his elbows and he suffered no burns. The orderly further testified that Franklin made no protest at that time that the bath water was causing him any discomfort. The director of the nursing home testified that the thermostat for the hot water heaters was set at 95-98 degrees, and that the thermostats were so altered that this setting could not be changed. On cross-examination defense counsel elicited testimony from one of plaintiff's doctors that the burns suffered by Franklin had to be caused by a heat source hotter than 95 degrees. The police officer who conducted the investigation testified that he went to the nursing home and that upon turning on the hot water into the tub he tried to hold his hand under it but it was scalding and steaming, and he could leave his hand under the water for only a few seconds.

Three of Franklin's adult children testified that they were with their father in the nursing home on either Friday or Saturday prior to the incident on Sunday, and that they had a chance to observe his hands and feet and saw no signs of blisters. On the other hand, the nursing home LPN testified that on October 31st she observed a blister on Franklin's left heel and made a note of this in his chart. Unfortunately, Franklin himself was unable to provide any input as to the cause of the blisters, as he was in a dazed and confused state when this condition was first observed by defendant's employees on November 2nd, and he later became semi-comotose or worse, never recovering to the point where he could describe the events of that fateful day.

A thorough consideration of the res ipsa doctrine can be found in the case of Sullivan v. Crabtree, 36 Tenn.App. 469, 258 S.W.2d 782, cert. denied (1953), wherein the doctrine is stated to be as follows:

"[W]here the thing [causing the harm] is shown to be under the management of defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Erle, C.J., Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, ...