Leach v. Ellensburg Hospital Ass'n, 37261

CourtUnited States State Supreme Court of Washington
Writing for the CourtDONWORTH; OTT, WEAVER, and HAMILTON, JJ., and JOHNSON
Citation400 P.2d 611,65 Wn.2d 925
Parties, 9 A.L.R.3d 1303 Robert O. LEACH and Margaret Leach, husband and wife, Appellants, v. ELLENSBURG HOSPITAL ASSOCIATION, Inc., Respondent.
Docket NumberNo. 37261,37261
Decision Date01 April 1965

Tonkoff, Holst & Hanson, J. P. Tonkoff, Yakima, for appellants.

Gavin Robinson, Kendrick & Redman, Kern, Dano & Cone, Ellensburg, for respondent.

DONWORTH, Justice.

This is an appeal from a directed verdict and judgment for the defendant, Ellensburg General Hospital Association, Inc., in a suit brought by plaintiffs husband and wife to recover damages arising from a 'burn' in the small of the wife's back which appeared while she was in a body cast during confinement in the hospital for treatment of a broken vertebra. For convenience, the plaintiffs will be referred to herein as appellants, and the wife, individually, as Mrs. Leach.

There are two major questions on this appeal. First, did the hospital have the kind of control over the cause of the injury (I.e. the 'burn') necessary for the application of the doctrine of res ipsa loquitur? Second, did appellants produce sufficient evidence of 'proximate cause' between acts or responsibilities controlled by the hospital and the injury to Mrs. Leach so that the question of causation should have been given to the jury? Both of these questions must be answered affirmatively if the directed verdict is to be held erroneous and the judgment of the trial court is to be reversed.

The facts are as follows: On August 9, 1962 (Thursday), Mrs. Leach wrenched her back when she grabbed a stick to hit a dog in an attmept to stop the dog from attacking a cat. Her husband took her to see a doctor, who X-rayed her back and diagnosed her condition as a fractured twelfth thoracic vertebra. He prescribed hospital confinement and application of a body cast. She was taken to respondent hospital by ambulance from the doctor's office. Although her confinement began on August 9, no cast was applied until the morning of August 13, 1962, because of an unrelated internal body condition.

On Monday, August 13, 1962, hospital employees, nurses, and an orderly prepared her for a cast by dressing her in a white T shirt, over which was applied a 1/2-inch layer of felt. The felt was sewn so as to fit her like a vest from just under her arms down to her hips. She was then taken to the cast room, where the cast was applied by two doctors, who testified at the trial.

According to the hospital records, Mrs. Leach was taken to the cast room at 10:45 a.m. and was returned from the cast room at 11:00 a.m. Present in the cast room at the time were three nurses and a hospital orderly, Mrs. Leach's doctor, and another doctor who assisted in the application of this first cast.

As soon as she arrived in the cast room, Mrs. Leach was placed between two tables, with her arms and head on one table, and her legs up to her upper thighs on another table, so that she hung suspended between the two tables. The position is very uncomfortable, but necessary in order to produce a backward curve of the spine, so as to set the fracture. Mrs. Leach was assisted into this position, and held there by two nurses and the orderly. The other nurse aided the doctors in the application of the cast by holding the splints in place. The two doctors applied the cast and directed the procedure for its application.

All during the period from August 9, 1962, when Mrs. Leach was admitted to the hospital, until after the cast was applied on August 13, 1962, she was given various drugs, including pain relievers. Her testimony is that she was unconscious from about the time she assumed the position described above for the application of the cast until the time when she was wheeled back to her room from the cast room. She admits being conscious at the time she was taken into the cast room and put into that position.

All persons attending her in the cast room testified that she appeared conscious all during the application of the cast. Her doctor and his assistant testified that Mrs. Leach was conscious the whole time because it was necessary that she be conscious in order for her to co-operate in the application of the cast. There is no doubt, of course, that she was under some degree of sedation from the drugs. She complained about pain caused by her position between the tables, which indicated her consciousness at that time. Whether or not she was conscious, and to what degree she was conscious after that, is a disputed question of fact.

The procedure in the application of the cast consisted of the doctor's dipping the plaster-treated wrappings into water, then apply the wrappings to the felt vest so as to build up a layer of plaster. For a period of about 8 minutes, there is a crystallization process in the plaster which is called 'setting up,' which generates some heat. There was no testimony as to how much heat is generated in terms of objective measurement. However, the testimony of nurses familiar with the process was to the effect that patients often complain of the heat and that a fan is used for the purpose of cooling off the cast. The cast is usually warm to the touch and there is testimony that the cast of Mrs. Leach was warm on her return from the cast room.

There is testimony that Mrs. Leach complained of pain and heat, both while in the cast room and on her return to her hospital room. Mrs. Leach testified that the pain was like that of a hot poker in her back. One nurse testified that an electric fan was used to cool the cast of Mrs. Leach after she returned to her room because Mrs. Leach complained of a burning sensation on her back. The hospital record shows that Mrs. Leach complained that the cast was burning her back, but the hospital record does not show application or removal of the fan.

Mrs. Leach later complained of being cold shortly after 3:00 p.m., after the fan was removed. A nurse who had just come on duty felt her cast and determined that it was cold and clammy. The nurse then turned on a portable heat lamp and applied it to the back of Mrs. Leach's cast. The hospital record shows that the lamp was turned on at 3:30 p.m., but it does not show when the lamp was taken off. Testimony of the two nurses on duty on that floor was to the effect that the lamp must have been taken off Mrs. Leach's cast about 4:45 p.m., because the patients are fed at 5:00 p.m. and the hospital record shows that this patient was fed at that time, although she ate little. There is testimony by her doctor and his assistant that the heat lamp used is not capable of making a burn through the plaster of the cast, the felt vest, and the T shirt.

There is testimony by both doctors and the three nurses present in the cast room at the time the cast was applied, that no heat lamp was used to dry the cast while Mrs. Leach was in the cast room. There is testimony that a portable X-ray machine was in the cast room. Mrs. Leach testified that there was a heat lamp in the cast room at the time the first cast was applied. Respondent argues that Mrs. Leach may have mistaken this X-ray machine for a heat lamp.

On Tuesday morning, August 14, 1962, prior to 11:00 a.m., Mrs. Leach's doctor checked her cast and noticed a wrinkle in the felt under the back of the cast. He immediately cut a window in the back of the cast, cut out the bulge in the felt, and restitched the felt so it would lie smoothly. He then patched the window with plaster. The doctor testified that he did not notice any blisters, nor did he cut through the T shirt so that he could have seen blisters.

Four days later, the 'burn' was discovered, on Friday, August 17, 1962. Mrs. Leach's doctor wrote in his record on that day that the figure conformation of Mrs. Leach was such that a cast would slip on her regardless of how it was applied. In other words. Mrs. Leach could and did turn her body inside the cast. The doctor and his assistant, at the application of the first cast, admitted that such an injury as that received by Mrs. Leach could be caused by thermal heat, but each doctor also testified without reservation that this particular injury was caused by abrasion, that is, rubbing of the cast on her back. Persistent cross-examination by appellant's counsel did not change this testimony. Depositions of these doctors were to the same effect. No reason was given by either doctor for this diagnosis.

The hospital records show that Mrs. Leach complained of the cast hurting her back during the days from August 13 to August 17 (Monday through Friday) whenever she was up, and that she was very restless when she was not up. Her original complaints about feeling a burning sensation in her back occurred mainly on the first day, however. Mrs. Leach's own testimony does not differentiate between her complaints on the 31th and her subsequent complaints, except to explain that she could discern between the pain from her fractured back and the pain from her subsequent injury (the burn), which latter pain she described as like a hot poker in her back.

The hospital record made by one nurse on Friday, August 17, 1962, at about 1:00 p.m., reads:

'While on back checked to see why pt. complained of the burning. Found blisters--same had broken--T shirt saturated with drainage. Tyroderm & gauze applied to area. X-ray of back downstairs.'

In this same record is found the following entry as of 3:00 p.m. 'Cast removed as ordered. Pillow under back.' Mrs. Leach was kept in bed with pillow support for 4 days, until August 21, 1962, while her injury healed enough for re-application of the cast.

On Tuesday, August 21, 1962, a new cast was applied, which caused no discomfort to Mrs. Leach either as to heat or fit, and she was released from the hospital two days later, on Thursday, August 23, 1962. Mrs. Leach testified that after the second cast was applied she heard a nurse ask her doctor if the heat lamp should be used. She...

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