German v. Nichopoulos

• Citation: 577 S.W.2d 197
• Parties: Linda D. GERMAN and William L. German, Appellants. v. George C. NICHOPOULOS, M. D. and Baptist Memorial Hospital, Appellees.
• Decision Date: 15 September 1978
• Court: Court of Appeals of Tennessee

Page 197

577 S.W.2d 197

Linda D. GERMAN and William L. German, Appellants. v. George C. NICHOPOULOS, M. D. and Baptist Memorial Hospital, Appellees.

Court of Appeals of Tennessee, Western Section.

Sept. 15, 1978.

Certiorari Denied by Supreme Court Feb. 12, 1979.

Richard J. Ryan, Sr., Richard J. Ryan, Jr., Memphis, for appellants.

J. Kimbrough Johnson, Max Shelton, Memphis, for appellees.

NEARN, Judge.

This is a plaintiffs' appeal from the action of the Trial Judge in a medical malpractice case in (a) directing a verdict for the defendant hospital at the close of plaintiffs' proof and (b) directing a verdict for the defendant doctor at the close of all the proof.

Plaintiff, William L. German, is the husband of Linda D. German and his claim is for loss of consortium and medical expenses incurred in behalf of his wife. Since his claim is purely derivative, during the course of this Opinion we will refer to the plaintiffs in the singular. By the use of the term, plaintiff, we refer only to Linda D. German.

The complaint alleges the following facts: On the advice of her physician, the defendant, Dr. Nichopoulos, plaintiff was admitted to the defendant hospital as a patient for observation and tests for weakness and palpitation; further, that while undergoing tests that a resident intern, or doctor of the hospital, gave plaintiff an intravenous injection into the back of her right hand, which injection "failed". Upon receiving the injection in her right hand, she immediately felt pain and the back of her hand began to swell. Plaintiff complained about this condition to the nurses present and later to Dr. Nichopoulos. Plaintiff was assured by Dr. Nichopoulos that both the swelling and pain would subside. Although the pain to some extent lessened, the swelling did not. Dr. Nichopoulos, while treating her on an out-patient basis, continued to advise plaintiff that the swelling would subside. Further, "that this swelling produced another reaction in that her fingers began to draw toward the palm of her hand, but that she could not close her hand; that her hand resembled a claw." Plaintiff sought other medical advice and, as a result thereof, underwent surgery in an attempt to improve the function of the hand. Permanent scarring of the right hand and permanent impairment of its use have resulted.

The acts of negligence of the defendants were set forth in the complaint with specificity as follows:

IV.

ACTS OF NEGLIGENCE OF CO-DEFENDANT, BAPTIST MEMORIAL HOSPITAL

1. That the defendant, by and through their agents, servants, or employees, in endeavoring to give an injection in the top of the plaintiff's hand did not exercise that degree of skill and care ordinarily exercised by others of the profession in the City of Memphis, State of Tennessee.

2. That the defendant, by and through their agents, servants, or employees, failed to inform the plaintiff, Linda D. German, of the risks incident to giving the injection in the top of her hand, thereby invalidating any consent express or implied, which she may have given regarding this injection.

3. At the time of the injection into the plaintiff's hand the defendant was in exclusive control of the plaintiff and her surroundings, and the instrumentalities and procedures used were under the sole and exclusive knowledge and control of the defendant.

4. That the defendant failed to exercise ordinary and reasonable care for the safety and well-being of Linda D. German under the existing circumstances.

5. That the defendant failed to use reasonable care that is regularly exercised in the community in the giving of injections so as to avoid injury to the hand of the plaintiff.

6. That the defendant failed to use reasonable care in attending to the plaintiff's hand after the injection and failed to react to her complaints of pain and swelling in a reasonable manner, thus preventing a lessening of the plaintiff's injury.

7. That the defendant failed to use reasonable care in notifying the plaintiff, William L. German, of his wife's injury so that he might seek proper medical care for his wife.

8. That the defendant failed to use reasonable care by their failure to inform the plaintiff of the risks incident to such an injection, thereby injecting the plaintiff's hand without her informed consent.

V.

ACTS OF NEGLIGENCE OF CO-DEFENDANT, GEORGE C. NICHOPOULOS, M.D.

1. That the defendant failed to exercise ordinary and reasonable care for the safety and well-being of Linda D. German under the existing circumstances.

2. That the defendant failed to exercise that degree of skill, care and ability that is regularly exercised by other competent physicians in this community.

3. That the defendant failed to use reasonable care in attending to the plaintiff's hand after the injection and failed to react to her complaints of pain and swelling in a reasonable manner, thus preventing a lessening of the plaintiff's injury.

4. That the defendant failed to use reasonable care in notifying the plaintiff, William L. German, of his wife's injury so that he might seek proper medical care for his wife.

5. That the defendant failed to use reasonable care by his failure to inform the plaintiff of the risks incident to such an injection, thereby injecting the plaintiff's hand without her informed consent."

Eleven Assignments of Error are filed in this Court. Eight of the Assignments of Error collectively raise but two issues which are (a) did the Trial Judge err in directing a verdict for the defendant hospital at the close of plaintiffs' proof and (b) did the Trial Judge err in directing a verdict for the defendant doctor at the close of all the proof. Two of the Assignments of Error complain of evidentiary exclusions, and the remaining Assignment of Error complains of the refusal of the Trial Judge to permit plaintiff to take a non-suit as to the defendant hospital.

We will dispose of the non-suit complaint first.

The record shows that at the close of plaintiff's proof counsel for both defendants moved for directed verdicts. Extended arguments by all counsel were had with questions and observations made by the Court and responses thereto by counsel. At the close of argument counsel for plaintiff stated, "Again I feel that we should be allowed to go to the jury on the question of the treatment of the Baptist Hospital. And I've noted my reasons for that. I stand on them." Thereafter, the Trial Judge considered the matter, restated the positions of the parties, noted that plaintiff sought recovery against the hospital on three theories, i. e., the doctrine of Res ipsa loquitur, negligence, and lack of informed consent, discussed plaintiff's proof and verbally concatenated the reported Tennessee cases he thought applicable to the theories and proof. He, first, explicitly directed a verdict in the hospital's favor on the issue of Res ipsa, ¹ then stated there was no evidence whatsoever of negligence on the part of the hospital or the intern, then stated insofar as the theory of informed consent is concerned, there was no proof that the injection by the hospital was without consent and there was no evidence that the hospital withheld any vital information that: (we now copy from the record)

"would vitiate any verbal or written consent.

So on the three theories

MR. RYAN, JR.: Your Honor, can I consult with my co-counsel just one minute?

MR. RYAN, SR.: Excuse us, Your Honor.

THE COURT: All right.

MR. RYAN: Your Honor, at this time, just as regard to the Baptist Hospital, I'd like to take a non-suit.

MR. SHELTON: If Your Honor please, I'm going to object.

THE COURT: It's come too late, Counselor. It's been submitted to the Court.

MR. RYAN: Thank you, Your Honor.

MR. SHELTON: Not only that, but the Court has already ruled.

THE COURT: So the Court will grant a directed verdict as to the Baptist Hospital on all three theories res ipsa loquitur, negligence, and informed consent."

In his brief, plaintiff's counsel argues, "While the Court was outlining the theories of the parties and the applicable law, Counsel for the appellants moved for a non-suit - - -." The only way we can answer that argument is to simply say; it isn't so. We are cited to the Tennessee Rules of Civil Procedure, Rule 41.01 and various reported cases which are all to the effect that a plaintiff may take a non-suit "prior to the ruling of the court sustaining a motion for a directed verdict." The cases are not here applicable.

We concur in the statement of the Trial Judge which is found in the order overruling the motion for a new trial:

"with respect to the assignment of error specifically complaining that the plaintiff should have been permitted to take a non-suit as to the defendant Baptist Memorial Hospital, the Court is of the opinion and finds that said defendant's motion for a directed verdict had been argued and submitted to the Court and the Court had ruled thereon prior to the motion for non-suit being made."

Accordingly, the Assignment of Error is overruled.

We will now take up the Trial Court's action in directing a verdict for the defendant hospital at the conclusion of plaintiff's proof.

As may be perceived from the portions of the complaint heretofore copied, recovery was sought from the hospital on theories of negligence (Acts 1, 4, 5, 6, and 7 set out in the complaint), failure to obtain an informed consent (Acts 2 and 8), and the doctrine of Res ipsa loquitur (Act 3).

A recovery based on a theory of negligence requires proof of more than a negligent act. The elements necessary to recover are: (a) Negligent act which (b) Causes a (c) Loss. There is absolutely no proof in this record that the injection was negligently administered. To correct that deficiency in the proof, the Trial Court and this Court are called upon to conclude negligence under the theory of Res ipsa. As to causation, counsel for plaintiff contends he has proved that by medical testimony, or if not, by "common knowledge". There is no doubt plaint...