Gormley v. Montana Deaconess Hospital

• Decision Date: 21 February 1967
• Docket Number: No. 11132,11132
• Citation: 423 P.2d 301,149 Mont. 12
• Parties: Viola GORMLEY, Plaintiff and Respondent, v. MONTANA DEACONESS HOSPITAL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 301

423 P.2d 301

149 Mont. 12

Viola GORMLEY, Plaintiff and Respondent, v. MONTANA DEACONESS HOSPITAL, Defendant and Appellant.

No. 11132.

Supreme Court of Montana.

Submitted Dec. 13, 1966.

Decided Jan. 11, 1967.

Rehearing Denied Feb. 21, 1967.

Smith & Emmons, Great Falls, for appellant.

Alexander, Kuenning & Hall, Great Falls, Paul E. Hoffmann, Glasgow, for respondent.

JAMES T. HARRISON, Chief Justice.

This is an appeal from a judgment entered on a special jury verdict which awarded the plaintiff $20,145.36 in damages and which awarded the defendant $3,980.72 on its counterclaim.

The plaintiff-respondent is Viola Gormley and will be referred to as either the plaintiff or Mrs. Gormley. The defendant-appellant is the Montana Deaconess Hospital, a Montana corporation, and will be referred to as the defendant or the hospital.

The plaintiff's action arose out of an injury suffered while a patient at the hospital. The defendant's counterclaim was for services rendered to plaintiff during her stay in the hospital. Although the appeal is from the entire judgment entered by the district court, the defendant has directed its attack at that portion of the trial, verdict, and judgment which deals with plaintiff's recovery.

The defendant makes six specifications of error which raise the following questions:

Whether the district court properly instructed the jury on the doctrine of res ipsa loquitur as it applies to the facts of this case.

Whether the district court erred by instructing the jury that nurses were instrumentalities of the hospital.

The record before this court reveals the following facts: On February 19, 1963, Mrs. Gormley, about sixty years of age, entered the hospital for a vaginal hysterectomy operation. The operation was performed on February 20, 1963, by Dr. H. W. Fuller, who was assisted by Dr. Robert E. Asmussen.

Following the completion of the operation, Mrs. Gormley was returned to her hospital room to begin her post-operative period of recovery. Dr. Fuller saw Mrs. Gormley on the evening of the operation, February 20, and he examined her on the next morning, February 21. Dr. Fuller found that Mrs. Gormley's recovery during the first 24 hours seemed quite normal but that she did not appear to be fully aware of the circumstances or conditions around her due to the recent anesthesia and drugs given for pain.

About 4:40 p. m. on February 22, 1963, Mrs. Gormley experienced a grand mal seizure. This seizure lasted about three minutes, and it was followed by a second grand mal seizure which occurred approximately fifteen minutes after the first seizure had subsided. When the first seizure began, only Mr. Gormley was in the room with his wife. He immediately summoned help. A nurse, two nurse's aids, and an orderly came to the room. Dr. Asmussen was summoned from his office immediately, and he arrived as the second seizure was beginning. As Dr. Asmussen entered the hospital, he summoned Dr. F. Hughes Crago, a specialist in internal medicine, who arrived very shortly after Dr. Asmussen.

Shortly after the second seizure subsided, Dr. Crago examined Mrs. Gormley in an attempt to determine the cause of the seizure. Dr. Asmussen observed the examination but did not take an active part in this examination. Dr. Crago made another examination of Mrs. Gormley about 9:00 p. m. of the same evening.

Upon the advice of the doctors, special registered nurses were employed to give round the clock nursing care to Mrs. Gormley. This care began around 6:00 p. m. on February 22.

Around 1:00 a. m. on February 23, the special nurse noticed severe swelling and bruises on Mrs. Gormley's right shoulder.

At 8:00 a. m., February 23, Dr. Crago again examined Mrs. Gormley and ordered x-rays taken of Mrs. Gormley's right arm and shoulder. It was subsequently confirmed that Mrs. Gormley had sustained a comminuted fracture of the right humerus.

Dr. Fuller testified that Mrs. Gormley did not have any injury to her arm and shoulder before she entered the operating room or after she came out of the operating room.

Dr. Crago testified that he did not have an opinion as to what caused the fracture. Upon the basis of his examinations of Mrs. Gormley on the evening of February 22, he thought that the injury had to have happened between 9:00 p. m., February 22, and 8:00 a. m. February 23. However, Mrs. Gormley was constantly attended to from the time of her first grand mal seizure until the time Dr. Crago ordered the x-rays to determine the extent of the injuries to her arm and shoulder. No unusual incident happened to her during this time.

Dr. John Wolgamot, a specialist in orthopedic surgery, also had no opinion as to how the injury occurred.

Dr. Ernest Cashion whose practice includes general surgery and neurology and neurologic surgery also examined Mrs. Gormley on the evening of the seizures in an attempt to determine their cause. He diagnosed the seizures as of a metabolic type, caused by her hospitalization, surgery, drugs, and possible blood transfusions and not due to the injury which Mrs. Gormley had suffered.

Mr. Gormley testified that he came to his wife's hospital room around 8:30 a. m. on February 22. He stayed until noon and returned about 2:30 p. m. the same day. During the time Mr. Gormley was with his wife, nothing unusual happened to her until she experienced the grand mal seizure at 4:40 p. m.

Mr. Gormley further testified that when he left the hospital at noon, Mrs. Gormley was receiving an intravenous feeding in the right arm. On his return the intravenous feeding was in the left arm. The hospital records indicate that the intravenous feeding was started at 9:55 a. m. and discontinued at 3:00 p. m., but there is no notation of the change of arms.

The nurses' notes that were kept on Mrs. Gormley while she was a patient in the hospital were introduced in evidence by the plaintiff. The hospital regulations require the registered nurse on duty to administer intravenous feedings and to make initialed or signed notation thereof in the nurses' notes. The nurses' notes for the hours of 7:00 a. m. to 3:00 p. m. on February 22, 1963, are not signed by any registered nurse. It was never established who the registered nurse was that was on duty that day during those hours.

Mrs. Emma Golie was a student practical nurse employed by the hospital at the time of Mrs. Gormley's hospitalization. The hospital records indicate that she was the only person having charge of Mrs. Gormley from 7:00 a. m. to 3:00 p. m. on February 22. Mrs. Golie testified that it was her recollection that there was no intravenous feeding in the morning and that it was started after lunch. This collection is not in agreement with the unsigned hospital records as hereinbefore noted.

From the various hospital records and the testimony of other persons who observed Mrs. Gormley during the first few days after her operation, it is apparent that she was in a drugged condition from the time she left the operating room up to the time of the seizure and that for some time after the seizures-at least until the time the injury was discovered by Dr. Crago-she was in a comatose state, unable to make any voluntary movements.

There was ample evidence introduced which showed that Mrs. Gormley was dependent upon the hospital for her care and attention. She had undergone a serious major operation. She was receiving medication to relieve pain. She has no recollection of the events for about a three week period. No testimony was given which would indicate that this inability to recall was an unusual occurrence.

Another important issue that was well covered at the trial was the length of time that would pass before swelling and discoloration would appear on an individual who had experienced this type of injury. At least three doctors gave their opinions as to how long a time it would take before the swelling and discoloration would begin.

Dr. Asmussen testified that the swelling could occur within fifteen minutes and that discoloration could occur at the very least time within two or four hours or longer.

Dr. Crago testified that swelling would appear from one-half hour to two hours after the injury and that discoloration could occur in two, three, four, or five hours.

Dr. Wolgamot said the time in which the swelling and discoloration would appear was a very rough one to estimate and that it could occur roughly between four and forty-eight hours.

The testimony given at the trial shows that no one was able to say how or when the injury to Mrs. Gormley occurred.

It should be noted that at the time the defendant moved for a directed verdict the court admitted there was a complete conflict in the evidence as to when the plaintiff sustained her injuries and expressed the feeling that a special verdict might be required, and also that if the fracture occurred at or after the second seizure the defendant would not be liable. The motion was denied and the court thereafter, without objection, instructed the jury to return a special verdict. In that special verdict the jury found that the plaintiff sustained her fracture prior to the start of her second seizure on February 22, 1963, and further, that the defendant was negligent in its care of the plaintiff and that such negligence was the proximate cause of the plaintiff's injuries.

This brings us to a consideration of the first question raised on this appeal, namely, whether the district court's instructions on the doctrine of res ipsa loquitur were correct.

It has been the...