Hand v. Park Community Hospital, Docket No. 2922

• Decision Date: 29 November 1968
• Docket Number: No. 1,Docket No. 2922,1
• Citation: 165 N.W.2d 673,14 Mich.App. 371
• Parties: Arthur Ray HAND, Plaintiff-Appellant, v. PARK COMMUNITY HOSPITAL, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 673

165 N.W.2d 673

14 Mich.App. 371

Arthur Ray HAND, Plaintiff-Appellant, v. PARK COMMUNITY HOSPITAL, a Michigan corporation, Defendant-Appellee.

Docket No. 2922.

Court of Appeals of Michigan, Division No. 1.

Nov. 29, 1968.

Released for Publication March 19, 1969.

David R. Kratze, Kelman, Loria, Downing & Schneider, Detroit, for plaintiff-appellant.

Arnold Magnuson, Alexander, Buchanan & Conklin, Detroit, for defendant-appellee.

Before FITZGERALD, P.J., and KAVANAGH and LEVIN, JJ.

LEVIN, Judge.

Plaintiff Arthur Hand entered the defendant hospital for treatment of a stroke. He was partially paralyzed on his right side and unable to move his right arm. Approximately 3 days later the plaintiff's wife was notified that he had suffered an injury. Substantial portions of the right side of his body had become burned. At the trial, she testified that there were no burns on his body when he entered the hospital. Plaintiff testified he did not recall the cause of his injury and offered no evidence of the cause. The transcript showed that the plaintiff was, to use defense counsel's description, unable 'to testify normally'.

The trial judge granted the defendant's motion for a directed verdict at the close of the plaintiff's proofs stating: 'There has been no showing of negligence on the part of these people; there wasn't any showing at all. The mere fact he was in the hospital is not evidence of negligence.'

We remand for a new trial. Although the plaintiff did not offer any direct evidence of negligence, the circumstances were such that the jury could reasonably infer negligence on the part of the defendant.

Pictures of the injury showed the plaintiff had sustained severe burns extending over a large portion of his paralyzed right thigh, right buttock, right arm and right side of the back. Generally, as the trial judge correctly observed, the mere occurrence of an injury does not in and of itself permit an inference that it was caused by someone's negligence. However 'where a thing happens which would not ordinarily have occurred if due care had been used, the fact of such happening raises a presumption of negligence in someone.' Barnowsky v. Helson (1891), 89 Mich. 523, 525, 50 N.W. 989, 15 L.R.A. 33. See, also, Pattinson v. Coca-Cola Bottling Company of Port Huron (1952), 333 Mich. 253, 52 N.W.2d 688; Gadde v. Michigan Consolidated Gas Company (1966), 377 Mich. 117, 139 N.W.2d 722; Patrick v. Pulte-Strang, Inc. (1967), 8 Mich.App. 487, 154 N.W.2d 654. In our opinion burns of the severity and extent suffered by the plaintiff ordinarily do not occur to one bedded down in a hospital unless someone has been negligent. Hence it would have been neither speculative nor conjectural for the jury to have concluded from the fact that such injury was sustained under such circumstances that it was caused by someone's negligence.

Plaintiff was in the defendant's care when his injury occurred. True, visitors were allowed and it is possible that the injury was caused by the act of someone other than one of defendant's servants. However, the absence of exclusive control does not necessarily preclude an inference of negligence in the circumstances of this case. Gadde v. Michigan Consolidated Gas Company, Supra, 377 Mich., pp. 124, 125, 139 N.W.2d 722. The question is whether 'in the light of all of the evidence--circumstantial, direct, or whatsoever it may be, the plaintiff has produced sufficient evidence from which a jury might make a finding of negligence.' Lipsitz v. Schechter (1966), 377 Mich. 685, 690, 142 N.W.2d 1, 4.

We think the plaintiff proved all he could have been expected to prove in this case. ¹ He had suffered a stroke and was paralyzed on the side of his body where the burns occurred. It is entirely understandable that his injury could have been sustained without his either being aware it was occurring or recalling at trial the cause of its occurrence. A hospital having care of such a patient that desires to counter the permissible inference that the injury was caused by its negligence is obliged to come forward with an explanation of the cause of the injury which persuades the trier of fact not to draw such inference or which so overcomes the inference that the court concludes it would no longer be reasonable for the trier of fact to draw the inference.

Substantially analogous on its facts is West Coast Hospital Ass'n v. Webb (Fla. 1951), 52 So.2d 803. There the patient while in a diabetic coma suffered serious burns at the defendant's hospital. The plaintiff there, like the plaintiff here, was unable to show the cause of her burns. The court concluded that the plaintiff had made a prima facie case upon showing that she had sustained injuries in the manner described.

In Danville Community Hospital, Inc. v. Thompson (1947), 186 Va. 746, 43 S.E.2d 882, 173 A.L.R. 525, a newborn child, presumably conscious, as plaintiff here may have been when his injury was sustained, but nevertheless helpless, as was the plaintiff, suffered a burn of unknown origin which the court concluded the trier of fact had justifiably found to have occurred after the baby left the attending physician's care and while she was in the nursery; the court held that under the circumstances it was entirely reasonable for the...