Gault v. Poor Sisters of St. Frances Seraph of Perp. Ador.

• Decision Date: 30 March 1967
• Docket Number: No. 16839.,16839.
• Citation: 375 F.2d 539
• Parties: Larry GAULT, Plaintiff-Appellee, v. POOR SISTERS OF ST. FRANCES SERAPH OF the PERPETUAL ADORATION, INC., a Corporation Organized and Existing under the Laws of the State of Indiana, doing business in Tennessee as St. Joseph Hospital, Sister Bernadine, Administrator, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

375 F.2d 539 (1967)

Larry GAULT, Plaintiff-Appellee, v. POOR SISTERS OF ST. FRANCES SERAPH OF the PERPETUAL ADORATION, INC., a Corporation Organized and Existing under the Laws of the State of Indiana, doing business in Tennessee as St. Joseph Hospital, Sister Bernadine, Administrator, Defendant-Appellant.

No. 16839.

United States Court of Appeals Sixth Circuit.

March 30, 1967.

Newton P. Allen, Memphis, Tenn., Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., on the brief, for appellant.

James F. Schaeffer, Memphis, Tenn., for appellee.

Before O'SULLIVAN, EDWARDS and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

Defendant, an Indiana corporation doing business as St. Joseph Hospital in Memphis, Tennessee, appeals from a jury verdict rendered in favor of plaintiff in the sum of $162,500. Plaintiff had alleged he had suffered serious and permanent injuries while a patient in defendant's hospital as the result of defendant's negligence in administering a solution of 10% sodium hydroxide (instead of an .85% saline solution) into plaintiff's stomach.

Plaintiff's complaint alleged, and his testimony at trial tended to prove, that the sodium hydroxide burned the lining of his stomach, intestinal tract, esophagus, nose and mouth causing him to be hospitalized for 19 weeks, to lose weight from around 130 pounds down to 88 pounds, suffer major surgery involving the removal of a portion of his stomach, suffer drug addiction as a result of administration of pain medicine, suffer constriction of the esophagus which occasions frequent vomiting and periodic mechanical dilation of the esophagus, suffer substantial loss of wages and incur large hospital bills, and suffer permanent disabilities which one doctor estimated at 30% to 35% of his total bodily function.

Appellant claims that the District Judge erred in denying its motion for new trial because 1) there is no evidence in this record to sustain a negligence verdict for plaintiff; 2) there is no evidence of permanent injury and the verdict is based on speculation and is grossly excessive; 3) the jury was guilty of misconduct, was subjected to extraneous influences, and its verdict was a product of passion and prejudice. We shall discuss these issues under three headings: "Negligence," "Amount of Verdict," and "The Jury's Deliberations."

NEGLIGENCE

Plaintiff's complaint and the evidence he adduced to support it tended to indicate that his injuries occurred during a gastric cytology test from the administration, by sheer mistake, of a caustic solution which was searing to human tissue and potentially lethal. The testimony tended to establish that the mistake was made because the sodium hydroxide solution and the normal saline solution were kept in the same low cabinet in bottles of identical shape and color.

Defendant's evidence tended to dispute the conclusion that any mistake was made at all. It tended to blame the events of March 27, 1964, on plaintiff's previously existing medical problems, including the possibility of a hiatus hernia and a stomach ulcer. Defendant's evidence also tended to minimize the claimed permanent effects of the injury.

Some of the significant evidence which the jury had a right to believe follows. The discharge summary prepared by a staff physician of appellant's hospital and read into the record at trial will serve to give a brief history of the events following plaintiff's admission to St. Joseph Hospital on March 22, 1964:

"Q. Would you read the discharge summary?

"A. (Reading) `This twenty-year-old male was admitted because of pain across the sub-xiphoid area radiating into the left chest which was worse with deep breathing and after meals but constantly present to some degree and had several severe attacks in the middle of the night. He also complained of much belching, gas and indigestion and also complained of some difficulty swallowing solids. He had been in the hospital previously in December, 1963, at which time GI and gallbladder series revealed no evidence of hiatal hernia or ulcer. However, the symptoms had continued and he was re-admitted for further workups. His case has been discussed with Dr. Van Fossen, and she suggests admission for possible esophagoscopy and gastroscopy. Following admission a chest, GI and gallbladder were done which revealed fair visualization of the gallbladder but a stone could not be excluded. There was questionable deformity of the duodenal cap on GI series, so re-check x-rays were ordered for the following morning. Re-check spot films of the duodenum showed no evidence of ulcer. Gallbladder revealed excellent function with repeat dose of dye. His admission lab work was within normal limits other than for an elevated white count — 13,100 with 70 percent segs. After the x-rays a gastric analysis was ordered by Dr. Van Fossen along with x-rays of the spines, on 3-24. On 3-26 Dr. Van Fossen ordered gastric cytology. At this time it was stated that a caustic substance was instilled into the stomach and that the patient regurgitated this material with burning of the mouth and throat and upper GI tract. At this time treatment was instigated by Dr. Van Fossen, and she and Dr. N. E. Rossett followed the patient for the rest of his hospital stay. Any further comments on treatment would be from their records on the chart. Discharge diagnosis was corrosive esophagitis and gastritis secondary to caustic substance in the stomach and esophagus.\' That is signed by Dr. Glen Head."

Plaintiff's own testimony on the crucial episode concerned follows:

"Q. After she inserted the tube, did she leave the room, or was she prepared fully at that time to proceed with the test?

"A. I am sure she left the room at that time. I assumed to get more supplies.

"Q. Now, tell us what happened.

"A. She came back, and she had a flask-like thing with her then, and she then began to put that into my stomach, the contents of the flask into my stomach, and immediately after she put it into my stomach it felt like someone had dropped a blow torch in the bottom of my stomach, and I started getting sick at my stomach, and I jerked the tube out of my nose, and I don\'t know whether I asked her — I made her somehow realize that I wanted something to throw up in, and she pushed a can over to me, and I threw up, and immediately when I threw up, I noticed that it was blood and mucus, and I threw up two or three times possibly, and lay back on the bed and hit the wall and hollered, `Oh, my God, why?\', and I remember the look on her face. I was looking at her, thought maybe she might give me something to help me, and she just looked bewildered like this never had happened before, or she didn\'t know what had happened, and then she left and then came back, and later the nurse\'s aide from the 2nd floor came up to get me.

"Q. Mr. Gault, do you know how long you were there alone after Mrs. Geiger had left the room?

"A. No, sir. At that time, time wasn\'t important to me.

"Q. Did you vomit any more while she was gone, while you were waiting?

"A. Yes, sir, I vomited.

"Q. Now, Mr. Gault, when you saw that you were vomiting blood, did this give you any concern?

"A. Yes, sir, it did. It upset me. I knew in my mind — I knew at the moment that it wasn\'t right, that it couldn\'t be right, because Dr. Van Fossen had told me it was going to be washed out with salt water, and I knew at different times with sore throat as I had gargled salt water and swallowed some of it, and it never had made my stomach hurt like it was hurting then, and burn."

The medical technician who administered the fluid by stomach tube and syringe (and who was eight months pregnant at the time) testified under cross-examination as follows:

"Q. Mrs. Geiger, what happened during the performance of the test?

"A. When I put the first solution down, the patient complained of a burning sensation.

"Q. And then what did the patient do?

"A. After that, he jerked the tube out and began to throw up.

"Q. What?

"A. Throw up. He just began to throw up.

"Q. What did the consistency of the vomitus to you appear to be?

"A. I didn\'t examine the consistency of the material.

* * * * * *

"Q. Now, did you have occasion to go back to the cabinet again after you had found that something had gone wrong?

"A. I went back and tasted a little of the solution, and it tasted strange, so I went back to see.

"Q. What do you mean by it tasted strange?

"A. It tasted different. I have never tasted any of either one of them but —

"Q. Did it burn?

"A. It had a tingling sensation, I would say.

"Q. Did it burn?

"A. I believe it did.

"Q. It burned?

"A. Yes, sir.

"Q. Now, you then had occasion to go back to the cabinet later?

"A. Yes.

"Q. That\'s what I am getting at. You did go back to the cabinet from which you got the jug?

"A. Yes, sir.

"Q. Did you look at the spot from which you had gotten the jug?

"A. Yes, sir.

"Q. Did you see a jug there?

"A. Yes, sir.

"Q. Did you read the label on that jug?

"A. Yes, sir.

"Q. What did it say?

"A. There were two jugs side by side and one was sodium chloride and the other one sodium hydroxide.

"Q. Now, let me show you another photograph, and I will ask you if that photograph similarly, as did the previous one relative to sodium chloride, fairly and accurately depict the kind and character and label of the bottle that you saw that day which contained sodium hydroxide?

"A. Yes, sir."

The report of the St. Joseph's intern who first responded after the event said:

"Q. * * * Do you see an entry there by Dr. Mihalovits?

"A. Yes, sir, I do.

"Q. Would you give the date of that entry?

"A. 3-27-62, 8:00 A.M.

"Q. \'62?

"A. I mean \'64.

"Q. At what time?

"A. 8:00 A.M.

"Q. Would you read the entry on the record?

"A. (Reading) `Patient was given 50 cc\'s ten per cent NaOH.\'

"Q. Do you know that to be the chemical formula for sodium hydroxide?

"A. Yes, sir. (Continuing to read.) `By gastric tube by mistake thirty minutes ago. Patient having severe gastric pain and

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