Hodges v. Effingham County Hosp. Authority

• Decision Date: 17 March 1987
• Docket Number: No. 73119,73119
• Parties: HODGES et al. v. EFFINGHAM COUNTY HOSPITAL AUTHORITY.
• Court: Georgia Court of Appeals

Page 104

355 S.E.2d 104

182 Ga.App. 173

HODGES et al. v. EFFINGHAM COUNTY HOSPITAL AUTHORITY.

No. 73119.

Court of Appeals of Georgia.

March 17, 1987.

C. James McCallar, Jr., H. Joseph Chandler, Jr., Savannah, for appellants.

Charles H. Brown, Susan W. Cox, Statesboro, Alex L. Zipperer III, Savannah, for appellee.

McMURRAY, Presiding Judge.

In the early morning hours of September 11, 1981, Estelle B. Edwards was treated at the emergency room of the Effingham County Hospital. At that time there was no physician on duty in the emergency room, though a physician, Dr. Tan, was on call. Dr. Tan directed the treatment by telephone after receiving information from the nurses on duty in the emergency room. Mrs. Edwards was discharged from the emergency room and later that morning was taken to the office of Dr. Webb. At Dr. Webb's office, Mrs. Edwards went into cardiac arrest and subsequently died from complications arising out of a myocardial infarction. At trial there was evidence that Mrs. Edwards had an 85% to 90% chance of surviving the myocardial infarction after having arrived at the hospital if she had been treated for her ailment. The plaintiffs in this action against the defendant Effingham County Hospital Authority are the executor and children of Mrs. Edwards. The complaint as amended, alleges negligence by the hospital nurses, including their failure to obtain an accurate medical history of Mrs. Edwards and to fully report all known and observable symptoms plus the content of such history to the physician on call. The case was tried before a jury which returned a verdict in favor of defendant. Plaintiffs appeal. Held:

1. The "locality rule" states that a hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use in hospitals in the area. See Emory Univ. v. Porter, 103 Ga.App. 752, 755, 120 S.E.2d 668. See also Smith v. Hosp. Auth. of Terrell County, 161 Ga.App. 657, 288 S.E.2d 715.

By motion in limine, plaintiffs sought to preclude any reference which might inform the jury of the "locality rule" in relation to the appropriate standard of nursing care. The trial court denied plaintiff's motion holding that the "locality rule" governs the case sub judice and subsequently charged the jury as to the "locality rule" standard of care and gave no charge as to the general standard of nursing care.

Plaintiffs enumerate as error the application of the "locality rule" rather than the general standard of nursing care. The crux of the plaintiffs' case is their evidence that the nurses employed by defendant failed to record and relay to the physician information concerning the decedent's complaints of stomach pain, that decedent had a heart condition, and that decedent had taken a nitroglycerin pill shortly before her arrival at the hospital. Plaintiffs' evidence also shows a failure to adhere to the general standard of nursing care in that no vital signs of Mrs. Edwards were taken after the administration of drugs. Also, no history of medication taken by Mrs. Edwards was obtained, although she regularly took several drugs.

As the plaintiffs are questioning the professional judgment of defendant's nurses, rather than the adequacy of services or facilities, the "locality rule" does not provide the appropriate standard of nursing care in the case sub judice. Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, 311 S.E.2d 836; Macon-Bibb County Hosp. Auth. v. Ross, 176 Ga.App. 221, 223(1), 335 S.E.2d 633. Therefore, the trial court erred in refusing to exclude evidence which would apply the "locality rule" standard of care to the alleged negligence of the nurses, in charging on the "locality rule" (in regard to nursing care) and in not charging on the general standard of nursing care.

2. Plaintiffs enumerate as error the trial court's directing a verdict against them as to punitive damages sought by the plaintiff-executor. See Ford Motor Co. v. Stubblefield, 171 Ga.App. 331, 340(7), 319 S.E.2d 470. Plaintiffs argue that OCGA § 31-7-75(1) (granting hospital authorities the power to "sue and be sued") authorizes the award of punitive damages against defendant and that the evidence authorizes punitive damages. Defendant argues that punitive damages may not be awarded against a hospital authority and that there was no evidence in the case sub judice authorizing punitive damages.

Plaintiffs cite Medical Center Hosp. Auth. v. Andrews, 162 Ga.App. 687, 292 S.E.2d 197, aff'd. 250 Ga. 424, 297 S.E.2d 28, (construing former Code Ann. § 88-1805(a), now OCGA § 31-7-75(1)) in support of their contention that hospital authorities are subject to suit the same as any private corporation, while defendant would distinguish this case on the facts as it did not present any issue as to punitive damages. Although it is correct that the punitive damages issue was not reached in Medical Center Hosp. Auth. v. Andrews, 162 Ga.App. 687, 292 S.E.2d 197, supra, and 250 Ga. 424, 297 S.E.2d 28, supra, or in its precursor, Knowles v. Housing Auth. of Columbus, 212 Ga. 729, 95 S.E.2d 659, it is apparent that the holding in these cases rests upon an interpretation of the statutory "sue and be sued" clause as imposing the same tort liability upon the respective public body corporate and politic as is imposed upon a private corporation. Thus, we conclude that under appropriate circumstances a hospital authority may be held liable for punitive damages.

"It is not essential to a recovery for punitive damages that the person inflicting the damage was guilty of wilful and intentional misconduct. It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to consequences." Battle v. Kilcrease, 54 Ga.App. 808, 809(4), 189 S.E. 573. See also Mr. Transmission v. Thompson, 173 Ga.App. 773, 775(2), 328 S.E.2d 397, and Dempsey Bros. Dairies v. Blalock, 173 Ga.App. 7(1), 325 S.E.2d 410. In the case sub judice, plaintiff presented evidence that the nurses employed by defendant were informed that Mrs. Edwards had a heart condition and had taken a nitroglycerin pill. The nurses failed to convey this information to Dr. Tan or to obtain information as to other medication being regularly taken, including Quinidine, a drug which regulates the heartbeat. Plaintiffs also show that obtaining and conveying such information was the responsibility of the nurses and that the physician, Dr. Tan, relied on the nurses to carry out this duty. A jury could reasonably conclude from the evidence presented that the failure of the nurses to convey actual knowledge of Mrs. Edwards' heart condition and medication evinces that entire want of care which would raise the presumption of a conscious indifference to the consequences. As there was evidence which would support an award by the jury of punitive damages, the trial court erred in granting defendant's motion for directed verdict as to punitive damages.

3. Plaintiffs contend the trial court erred in refusing to allow testimony of witnesses as to statements made to them by the deceased about her physical condition immediately prior to her death. Defendant objected to such statements on the ground that they were hearsay. Plaintiffs argue that the testimony should have been admitted "on the following proposition announced in Lathem v. Hartford Accident etc. Co., 60 Ga.App. 523(2), 3 S.E.2d 916: 'When death has sealed the mouth of a witness, and there is no other witness as to such deceased witness's injury and its cause, it being contended that the injury was the cause of his death, "the declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present-existing pain or malady, to prove his condition, ills, pains and symptoms, whether arising from sickness or from an injury by accident or violence." ' " City of Atlanta v. Crouch, 91 Ga.App. 38, 39-40, 84 S.E.2d 475. City of Atlanta v. Crouch, supra, is an application of the rule of necessity, an exception to the hearsay rule admitting testimony as to the statements of deceased persons, regarding their injury and its cause, where there is no other evidence available. However, the subsequent cases of Moore v. Atlanta Transit System, 105 Ga.App. 70, 73(2), 123 S.E.2d 693 and Chrysler Motors Corp. v. Davis, 226 Ga. 221, 173 S.E.2d 691 have added the requirement that not only must the decedent's declarations be admitted of necessity, but there must also be a circumstantial guaranty of the trustworthiness of the offered evidence. In the case sub judice the decedent's statement was self-serving and the witness testifying to the statements stood to gain substantially from their admission, therefore we cannot say that the test of trustworthiness is satisfied. Irby v. Brooks, 246 Ga. 794, 273 S.E.2d 183 4. Plaintiffs enumerate as error the trial court striking (removing from consideration by the jury) portions of the death certificate of the deceased prior to allowing its introduction into evidence. The death certificate showed the immediate cause of death as shock and respiratory failure due to or as a consequence of ventricular fibrillation and cardiac arrest. The certificate shows the interval between the onset of these causes and death as 30 to 60 minutes. Plaintiffs contend the...