Lakeside Hospital v. Kovar
| Decision Date | 24 June 1936 |
| Docket Number | 25642.,25634 |
| Citation | 131 Ohio St. 333,2 N.E.2d 857 |
| Parties | LAKESIDE HOSPITAL v. KOVAR. KOVAR v. LAKESIDE HOSPITAL. |
| Court | Ohio Supreme Court |
Error to Court of Appeals, Cuyahoga County.
Syllabus by the Court .
1. A hospital is not liable for injury resulting from the negligence of its nurses unless it be shown that it failed to use due care in the selection or retention of the nurse or nurses who caused the injury. Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St. 61, 135 N.E. 287, 23 A.L.R. 900, approved and followed.
2. The burden of showing such lack of care rests upon the plaintiff. A petition failing to plead such lack of care in a hospital negligence case fails to state a cause of action and is demurrable.
3. A hospital interne, after the death of a patient, made an investigation and report of the cause of death and filed it with the hospital records. The testimony of a witness that he called on the director of the hospital who, having no personal knowledge, handed the interne's report to the witness, saying at the time, ‘ This is how it happened,’ is not part of the res gestae, is purely hearsay, and is therefore inadmissible.
4. Where a Court of Appeals finds that, from the competent testimony produced on the trial, there is ‘ no evidence on the matter of the hospital's failure to exercise due care in the employing and retaining in its employment the nurse or nurses' who caused the patient's death, it becomes the duty of the appellate court not to reverse and remand, but to render final judgment in favor of the hospital.
This case has been twice tried. It was originally brought against two defendants, the Lakeside Hospital and one Dr. Frank Gibson, the operating surgeon. At the first trial the jury returned a verdict in favor of the surgeon and against the hospital for the sum of $2,000. The hospital prosecuted error to the Court of Appeals, which reversed the judgment as to the hospital because the trial judge had committed error in ruling that the burden of proof of due care in selecting the nurse was upon the hospital. The Court of Appeals accordingly remanded the case. The case was tried in the common pleas court the second time, where the action was prosecuted against the hospital alone. Since the codefendant, Dr Gibson, is no longer in the case because of his favorable judgment, no further allusion will be made to him except as may be necessary in the treatment of the case against the hospital.
On the second trial the case was heard on the second amended petition, the answer of the hospital and the reply of the plaintiff. Evidence was offered by both plaintiff and defendant. At the close of plaintiff's case the defendant filed a motion for judgment on the ground that there was no evidence tending to show that the hospital was negligent in selecting the nurse who administered the boric acid solution. The same motion was renewed at the close of all the evidence. Both motions were overruled by the trial court, the trial resulting in a verdict and judgment against the hospital for the sum of $5,000. The hospital prosecuted error to the Court of Appeals a second time, this time to a Court of Appeals of another district sitting by designation. That court reversed the judgment of the court of common pleas for ‘ error in the admission of evidence and error in charge,’ and again remanded the case to the common pleas court for further proceedings. Thereupon both plaintiff and defendant filed motions to certify the case to this court, the hospital predicating its motion upon the contention that the Court of Appeals should have rendered final judgment in its favor. Both motions for certification were allowed by this court and both cases were heard on the merits.
In the second amended petition, so far as it relates to the hospital, plaintiff alleges that in the course of an operation upon the decedent by the surgeon the latter had directed that a saline infusion should be administered to the patient; and that some nurse at the hospital, by reason of incompetence, recklessness, and negligence, instead of following the surgeon's direction in the injection of a saline infusion, caused a poisonous solution, to wit, boric acid, to be injected instead of the normal saline solution, which resulted in the death of the patient. The pleading charged in substance that the hospital was negligent in providing a nurse who was incompetent by lack of training, in failing to make adequate investigation as to her competence, in causing saline solution to be kept in proximity to the place where the boric acid solution was kept, and in failing to provide adequate supervision over the hospital nurses assigned to hospital duties.
In addition to denying generally the allegations of negligence contained in the second amended petition, the hospital answered by way of defense that it had always been a charitable corporation not organized for profit, that it never had any capital stock or declared dividends, and that it never had made profits for either the corporation or its members; that, on the other hand, the hospital had been conducted at a loss and its deficits were made up from charitable gifts and bequests, and that the hospital officers were performing their duties without compensation. The answer contained allegations similar to those contained in the hospital's answer in Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St. 61, 135 N.E. 287, 23 A.L.R. 900. The reply of the plaintiff was a general denial. The salient facts are as follows:
On August 20, 1930, the plaintiff's decedent was placed under an anesthetic and operated upon by the operating surgeon. Immediately following the operation a saline infusion was ordered to be administered to the patient by one Dr. Wilcox, a hospital interne. In one of the hospital utility rooms a flask labeled ‘ normal saline’ and another labeled ‘ boric acid’ were kept on the same shelf. The liquid in both flasks was colorless. These flasks were readily distinguishable by their wrappings and labels, the saline solution being labeled in black lettering, the boric acid in red. Twenty-nine hours after the infusion was discontinued the patient died from the effects resulting from the injection of the boric acid solution-a poisonous ingredient-into her body. During this period there were several nurses in attendance on the patient, either by way of supervision or in direct attendance. In the selection and preparation of the saline solution someone, very probably one of the nurses, took from the shelf by mistake the flask containing boric acid. These two flasks were taken to the patient's room and their combined mixture was injected. There is no positive evidence who selected these flasks in the utility room. However, two of the nurses testified that, while they did not start the infusion, they aided in later injecting part of the contents of both flasks into the body of the patient. It is very evident that, had they inspected the labels, one or both would have detected the boric acid flask.
Harrison & Marshman, of Cleveland, for plaintiff in error.
McKeehan, Merrick, Arter & Stewart and Clinton M. Horn, all of Cleveland, for defendant in error.
There is ample testimony in the record to support the answer of the defendant below that Lakeside Hospital is a public, charitable hospital and not organized for profit, etc. Counsel for the hospital substantially admit that the act of one of its nurses was one of negligence which proximately caused the death of the patient; but in support of their claim of nonliability they rely upon the pronouncement of this court that, even so, the hospital is not liable unless the plaintiff has proven that the hospital authorities were negligent in the selection or retention of its nurses. They rest their argument on the decisions of this court in Taylor, Adm'r, v. Protestant Hospital Ass'n, 85 Ohio St. 90, 96 N.E. 1089,39 L.R.A.(N.S.) 427; Taylor v. Flower Deaconess Home and Hospital, 104 Ohio St. 61, 135 N.E. 287, 23 A.L.R. 900, and Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N.E. 126. Judge James G. Johnson, wrote the opinions in both of the Taylor cases. The syllabus in the second Taylor Case is as follows:
In announcing this rule of nonliability, we follow the weight of authority. As stated by Judge Johnson in his opinion: ‘ The most generally accepted theory is that it is against public policy to hold the charity liable for negligence of servants where they have been selected with care.’
This court has recognized that there is a conflict of opinion among the courts of the various states as to the liability or nonliability of hospitals organized for public charity and not for profit. In the Rudy Case, supra, we said in the per curiam opinion: ...
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