Malcolm v. Evangelical Lutheran Hosp. Ass'n of York

• Citation: 185 N.W. 330,107 Neb. 101
• Decision Date: 17 November 1921
• Docket Number: No. 21674.,21674.
• Parties: MALCOLM v. EVANGELICAL LUTHERAN HOSPITAL ASS'N OF YORK, SEWARD, HAMILTON AND OTHER COUNTIES.
• Court: Supreme Court of Nebraska

107 Neb. 101

185 N.W. 330

MALCOLM

v.EVANGELICAL LUTHERAN HOSPITAL ASS'N OF YORK, SEWARD, HAMILTON AND OTHER COUNTIES.

No. 21674.

Supreme Court of Nebraska.

Nov. 17, 1921.

Syllabus by the Court.

In respect to the causes of the alleged injury the verdict of the jury is a complete and specific answer.

Whether or not the nurse was careless and negligent in administering the hypodermic injection is a question for the jury.

A master is responsible for the torts of a servant when he is acting within the scope of his employment.

A hospital supported and maintained and built by private subscription and the subscription of stockholders, and which declares dividends to its stockholders, and usually charges reasonable fees for services rendered, is not an eleemosynary institution, but one for private gain.

A hospital incorporated and conducted for private gain is liable to patients for the negligence of nurses and other employees.

It is sufficient in propounding a hypothetical question to limit the question to the statement of facts containing the idea upon which the evidence is elicited or brought out.

Appeal from District Court, York County; Good, Judge.

Action by Daniel D. Malcolm against the Evangelical Lutheran Hospital Association of York, Seward, Hamilton and Other Counties. Judgment for plaintiff, and defendant appeals. Affirmed.Sandall & Wray, of York, for appellant.

W. L. Kirkpatrick, of York, for appellee.

Heard before MORRISSEY, C. J., and ROSE, ALDRICH and FLANSBURG, JJ., and BROWN and ELDRED, District Judges.

ALDRICH, J.

Plaintiff in this case was a young man full of vigor, enjoying much vitality, and in robust health. There was one exception to this general condition of health. He had a rupture of the groin known as hernia. October 6, 1918, he contracted with the defendant for an operation at its hospital. Appellee stayed during the night of October 6 at the hospital, and the next morning, about 30 minutes before the operation, one of the hospital nurses came to his room and inserted a hypodermic needle into his right arm at an improper place and in a careless manner, at a point near the elbow, and then administered supposedly a preparation for the anæsthetic to follow. Then it was that the appellee complained of a severe pain that extended down into his hand and fingers, saying:

“Gee, she must have stuck my crazy bone; my hand hurts like my crazy bone had been bumped.”

Appellee was then taken to the operating table, laid flat on his back, his arms were secured with a sheet and the folds of a shirt in such a position that his hands were crossed one upon the other on his breast. The anæsthetic was administered while he was in this position and the operation for hernia performed without unusual incident.

Immediately upon his regaining consciousness appellee complained to his attendants of the pain in his hand and elbow, which still remained and absorbed and diverted his attention from other discomforts. From that moment appellee's hand was never entirely free from pain and discomfort. Appellee remained in the hospital ten days and was then discharged. About three weeks after the operation appellee's hand and arm were still troubling him. Then Dr. McKinley made an examination of the injured member and inquired thoroughly into the history of the case. The injury was traced back to the hypodermic given at the hospital. His right hand and arm became inpaired and deficient in strength. This is a fair, impartial and concise statement of the facts as they exist of record.

The defendant institution is supported by subscriptions of its stockholders, and declares dividends on its stock, and charged the plaintiff a reasonable fee for his operation.

[1] Did this hypodermic cause the injury and pain which immediately followed? It must be conceded that plaintiff was absolutely sound, with the exception of this hernia, at the time of the operation, and that the injuries complained of immediately followed the insertion of the hypodermic needle. Was the injury complained of the natural and proximate result of the hypodermic injection? As a result of this injury the hand and wrist became atrophied and lost much in strength. Taking into consideration the health and strength of the appellee, and that his deficiency or weakness dates solely from the injection of the hypodermic, and from all the evidence in the record on this subject, it is plainly apparent that the administering of the hypodermic injection by Miss Oertel, one of the nurses of the institution, caused the injury complained of. The evidence on this subject is clearly manifest on an examination of the record. The case in many of its aspects is not unlike the case of Murphy v. Southern Pacific Co., 31 Nev. 120, 101 Pac. 322, 21 Ann. Cas. 502. The testimony of the appellee himself and the attending physicians clearly prove the...