Hunter v. Sisters of Charity of Incarnate Word

• Decision Date: 25 May 1970
• Docket Number: No. 7993,7993
• Parties: Walter B. HUNTER and Betty H. Hunter, v. SISTERS OF CHARITY OF the INCARNATE WORD, d/b/a T. E. Schumpert Memorial Hospital, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 565

236 So.2d 565

Walter B. HUNTER and Betty H. Hunter, v. SISTERS OF CHARITY OF the INCARNATE WORD, d/b/a T. E.

Schumpert Memorial Hospital, et al.

No. 7993.

Court of Appeal of Louisiana, First Circuit.

May 25, 1970.

Rehearing Denied June 30, 1970.

Sylvia Roberts, of Brumfield & Brumfield, Baton Rouge, for appellants.

Gerald L. Walter of Kantrow, Spaht, Weaver & Walter, Baton Rouge, for appellees.

Before LANDRY, SARTAIN and ELLIS, JJ.

LANDRY, Judge.

Plaintiffs appeal the judgment of the trial court sustaining defendant's exception of prescription and dismissing plaintiffs' action in tort for damages allegedly resulting from the negligent placing of Mrs. Hunter in bed while she was a patient in the Schumpert Memorial Hospital (Schumpert), located in Shreveport, Louisiana. We affirm the judgment of the court below.

It is undisputed that the incident giving rise to this litigation occurred on August 12, 1967, and that suit was not filed by plaintiffs until November 18, 1968. The salient issue on this appeal is when did Mrs. Hunter learn that the injuries allegedly received resulted from the reputedly negligent manner in which Schumpert's employees assisted her back into bed after she purportedly fell?

Named defendants in plaintiffs' initial action were (1) Schumpert; (2) Hartford Accident & Indemnity Company, Schumpert's insurer; (3) Dr. Wallace H. Brown, Mrs. Hunter's treating physician, and (4) United States Fidelity & Guaranty Company, insurer of Dr. Brown. The action against Dr. Brown and his insurer was dismissed on said defendants' motion for summary judgment and no appeal has been taken therefrom. Plaintiffs voluntarily dismissed their action against Schumpert, thus leaving Hartford the sole defendant herein.

In early August, 1967, Mrs. Hunter entered Schumpert for treatment for 'black-outs' and numbness in her left arm and leg. She has no independent recollection of the incident which allegedly gave rise to her injuries. Her knowledge of the occurrence is based entirely on information imparted to her by Mrs. Pernie Smith, a nurse's aide employed by Schumpert, and Dorothy Peters, a patient who occupied an adjoining room.

Mrs. Hunter testified in effect that she was advised that she fainted while being assisted to the bathroom and was then picked up bodily by employees of the hospital and lifted into bed without the aid of a stretcher or other lifting or carrying devices. She thereafter experienced pain on her entire right side including her arm, shoulder, hand, thigh and leg. She could not move her right arm or leg, she experienced pain in her groin and her right leg, and her right forearm became swollen. She stated that prior to the incident, she had none of these symptoms. She related that she remained hospitalized for a considerable time during which she was treated and seen by Dr. Wallace A. Brown, Dr. T. A. Norris, Dr. Heinz K. Faludi, and Doctors Wilder and Mullin. On November 24, 1967, while on a week end pass from Schumpert, plaintiff was seen by Dr. Joe E. Carter, Chiropractor, Marionville, Missouri, who referred her to Dr. Leland Wetzel, Osteopath, who hospitalized plaintiff in Springfield, Missouri. On November 26, 1967, Dr. Wetzel informed plaintiff she was suffering from strained ligaments and tendons possibly caused by the manner in which she was assisted into bed while a patient at Schumpert on or about August 12, 1967. Plaintiff still complains of pain in her right hip and groin.

Mrs. Pernie Smith's testimony is that she is a nurses' aide at Schumpert. On or about August 12, 1967, she was assisting plaintiff to the bathroom when plaintiff suffered a fainting spell. She stated that plaintiff did not fall but was assisted to a sitting position on the floor and permitted to lie on the floor until three other employees were summoned and plaintiff was raised bodily and placed in bed. Mrs. Smith explained that plaintiff was returned to bed by standard lifting procedure taught by the hospital, namely, one person at the patient's shoulders, another at the hips and the third at the patient's feet. Mrs. Smith did not recall advising plaintiff of the manner in which plaintiff was placed in bed. She did remember that plaintiff was unconscious at the time and that after the incident plaintiff made sundry complaints of pain. Mrs. Smith also explained that plaintiff repeatedly referred to her 'fall' and each time Mrs. Smith corrected plaintiff by stating that plaintiff did not fall but was assisted to a sitting position on the floor.

On entering Schumpert plaintiff was treated by Dr. Wallace Brown, Surgeon. Dr. Brown testified that plaintiff was admitted for treatment of numbness in her left arm and left leg. Finding no objective symptoms to support plaintiff's complaints, Dr. Brown called Doctors Wilder and Lanford, Internists, in consultation. Eventually, Dr. Mullin, a psychiatrist, was also called in consultation. Dr. Mullin transferred plaintiff to the psychiatric floor and became her chief physician. Dr. Brown stated that he saw plaintiff on several occasions in the psychiatric ward and in each instance plaintiff complained of pain in the right hip, right leg, right shoulder, right arm and groin as the result of an alleged fall and being placed back in bed while a patient in the psychiatric ward . He noted that on more than one occasion, plaintiff complained of the manner in which she was assisted into bed. Dr. Brown was of the opinion that plaintiff being lifted into bed had no connection with her symptoms. He was of the further view that plaintiff's complaints resulted from tension and were psychosomatic in origin.

Dr. T. A. Norris, Orthopedic Surgeon, first examined plaintiff on August 18, 1967. She complained of pain in her right groin, right thigh and right hip. He related that plaintiff attributed her condition to a fall which she experienced a few days before and the manner in which she was returned to bed. He also stated that plaintiff 'dwelled on the manner in which she was put in bed' and considered this incident the main source of her trouble and injuries . Dr. Norris found swelling in plaintiff's right ankle but did not find any other objective symptoms of injury. Dr. Norris believed the swelling noted was from disuse of plaintiff's leg. He also believed plaintiff was suffering from some genuine discomfort.

Plaintiff was seen by Dr. Heinz K. Faludi, Neurosurgeon, on October 7, 1967. Dr. Faludi noted the patient's complaints of blackout spells, headaches, weakness of the left extremities and pain in the right hip upon walking. He considered plaintiff's complaints bizarre and observed that plaintiff ascribed her difficulties to a fall in the hospital. Dr. Faludi expressed doubt that any stretching plaintiff may have experienced while being lifted into bed could have caused the problems en-counteed with plaintiff's right hip and leg.

It is conceded the one year prescription provided by LSA-R.C.C. Article 3536 is applicable herein. LSA-R.C.C. Article 3537 provides that the one year period stipulated in Article 3536, above, runs from the date on which the damages were sustained by plaintiff.

Generally the burden of proof rests upon the defendant pleading prescription as an affirmative defense. Succession of Thompson, 191 La. 480, 186 So. 1; Foster v. McLain, La.App., 198 So.2d 463; Ludlam v. International Paper Company, La.App., 139 So.2d 67. Where, however, plaintiff's petition shows on its face that the asserted claim has prescribed, PLAINTIFF must allege and prove facts sufficient to show a suspension or interruption of prescription sufficient...