McCoy v. Wesley Hospital and Nurse Training School

• Decision Date: 10 June 1961
• Docket Number: No. 42058,42058
• Citation: 188 Kan. 325,362 P.2d 841
• Parties: Greston T. McCOY, Administrator of the Estate of Roy W. McCoy, Appellant, v. WESLEY HOSPITAL AND NURSE TRAINING SCHOOL, Appellee.
• Court: Kansas Supreme Court

Page 841

362 P.2d 841

188 Kan. 325

Greston T. McCOY, Administrator of the Estate of Roy W McCoy, Appellant, v. WESLEY HOSPITAL AND NURSE TRAINING SCHOOL, Appellee.

No. 42058.

Supreme Court of Kansas.

June 10, 1961.

Syllabus by the Court

1. In an action to recover damages for personal injury received by a patient who was permitted to fall from bed while under the influence of sedation and anesthetics in the defendant hospital, the theory of the plaintiff's action was framed in two counts, the first in tort and the second, in the alternative, in contract. The trial court sustained a demurrer to both counts on the ground that the two-year statute of limitations had run on the plaintiff's cause of action, holding the gravamen of the cause of action alleged in the second count was in tort, notwithstanding the form in which it was stated. On appeal it is held the demurrer was properly sustained as to the first count but erroneously sustained as to the second.

2. Where a hospital conceals from a patient the fact that he has fallen from bed while under the influence of sedation and anesthetics for approximately three and one-half months, when the fact is discovered by the patient's physician and disclosed to the patient, the doctrine of equitable estoppel in pais is not available to interrupt the running of the statute of limitations, since the concealment ceased to operate in sufficient time to permit the filing of the action within time, and there was no affirmative inducement to further delay bringing the action.

3. A cause of action for negligence accrues when the wrongful act causing injury is committed rather than when the consequential damages arise, and the provisions of G.S.1949, 60-306, Third, do not make concealment of a cause of action in tort one of the grounds for tolling the statute of limitations.

4. Where a patient while under the influence of sedation and anesthetics is permitted to fall from his bed and breaks his hip, the concealment by the hospital of the patient's fall and its failure to discover the patient's broken hip, coupled with the usual therapy for ambulatory patients after surgery, for a period of three months until the patient's release from the hospital, is held not to constitute a continuing act of negligence on the part of the hospital through its agents, servants and employees.

5. For the violation of a duty imposed upon a hospital in permitting a patient while under the influence of sedation and anesthetics, to fall from his bed causing him to sustain injury, an action in tort can be instituted within two years after the injury to recover the consequential damages sustained. But, confronted with such circumstances, the hospital through its agents, servants and employees has an immediate obligation to notify and inform the patient's physician, and when the patient has sufficiently recovered from the anesthetics to inform him, of his fall from bed to fulfill its implied obligation under the contract for care which it has undertaken to perform; and when the very facts which are alleged in the tort action are the facts from which the promise is inferred, and they are so alleged in a second count, it is held a cause of action ex contractu is stated which is not barred by the two-year statute of limitations.

Payne H. Ratner, Jr., Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Cliff W. Ratner, Edmund R. Learned, James R. Barr, Frank W. Hylton and R. R. Barnes, Wichita, and David W. Kester, Eureka, were with him on the briefs for appellant.

William Tinker, Wichita, argued the cause, and Arthur W. Skaer, Jr., Hugh P. Quinn, William Porter, Alvin D. Herrington, Darrell D. Kellogg and Richard T. Foster, Wichita, were with him on the briefs for appellee.

SCHROEDER, Justice.

The is an action to recover damages for personal injuries received by a patient, Roy W. McCoy, while in the defendant hospital where he was permitted to fall from bed on February 18, 1956, while under the influence of sedation and anesthetics.

Subsequent to the patient's death on the 20th day of January, 1959, the action was revived in the name of the administrator of his estate, Greston T. McCoy, who filed a second amended petition. The theory of the plaintiff's action was framed in two counts, one in tort and the other, in the alternative, in contract. The trial court sustained a demurrer to both counts of the second amended petition on the ground that the action was barred by the statute of limitations.

The foregoing decision of the trial court on the admitted facts presented gives rise to various questions.

While the appellee contends a demurrer to a pleading searches the record and is applied to the first defective pleading (Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P.2d 258), it has no application here because we construe the second amended petition to be merely an enlargement and amplification of the averments of the original petition. Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P.2d 444, and cases cited therein.

For purposes of our decision, therefore, the action was instituted on May 6, 1958, when the original petition was filed, since the allegations of the second amended petition relate back to that date.

The second amended petition alleges that on February 16, 1956, Roy W. McCoy (hereafter referred to as the decedent) was admitted to the Wesley Hospital and Nurse Training School in Wichita, Kansas (hereafter referred to as the hospital or appellee), where on February 18, 1956, he underwent an operation for the removal of his prostate gland. Immediately following this surgery the decedent was returned to his room in an unconscious condition, being under the influence of sedation and anesthetics, and while in this condition, fell from the bed upon which he was placed. As a result thereof, he suffered a broken hip causing him to sustain severe and lasting disability, for which injury and damage suit is brought.

Appropriate allegations are set forth in the second amended petition defining the duty of the hospital and describing the specific acts of negligence with which it is charged. It then alleged:

'VII.

'When decedent fell from the bed, as aforesaid, he was so under the influence of sedation and anaesthetics that he was unaware of the fall. Decedent was, by the agents, servants and employees of defendant, placed back in his bed and was thereafter examined by the agents, servants and employees of said defendant. Said examination was cursory in character and took place immediately after decedent's fall. Because of decedent's semi-conscious state he did not recognize the agents, servants and employees of defendant who placed him back in his bed. Decedent alleges, however, on information and belief, that a Mrs. Johnson, the head nurse, on duty at the time aforesaid, and a licensed practical nurse, whose name decedent does not know, placed him back in his bed. Plaintiff further alleges that defendant's own records, which are not available to plaintiff of revivor disclose or should disclose to defendant the names of the agents, servants and employees who placed plaintiff back in his bed and examined him thereafter. At no time was the physician who was caring for decedent informed by defendant of said fall nor was decedent so informed. Decedent was not examined by defendant for a broken hip, or if such examination was made, it was a simple, cursory examination, negligently made so as not to disclose said broken hip. Notwithstanding that defendant knew that an elderly person was likely to break a hip in a fall such as decedent suffered, and notwithstanding defendant owed a duty to examine decedent to determine the exact nature and extent of his injuries, defendant did not examine decedent by x-ray or other proper means to determine if decedent had any broken bones. Defendant owed a duty to inform decedent and decedent's treating physician, of decedent's fall, but failed, neglected and refused to do so, at all times concealing the fact of said fall.

'VIII.

'By reason of defendant's concealing said fall as aforesaid, decedent's injury was unknown to him and to his treating physician and neither had any suspicion or knowledge that decedent had fallen from bed and that he might have been injured or was injured as a result thereof. Decedent's treating physician was Vern L. Pauley, M.D. Decedent exercised reasonable diligence in attempting to ascertain the cause of his disability by complaining to the agents, servants and employees of defendant, of pain in his hip. He was assured that it was caused by phlebitis and was at no time informed of any fall or injury to his hip. Decedent does not know the names of the agents, servants and employees who were on duty at the time he made complaints. Decedent, however, alleges that it was several days after his fall before he made complaints because he was during that period of time under heavy sedation. When decedent recovered his consciousness, several days after the fall, he complained constantly to all hospital personnel whom he could contact. Decedent alleges that defendant's own records disclose the names of those agents, servants and employees who were on duty and who attended plaintiff and to whom these complaints were made. These complaints were verbal in form and no written complaint was made. Defendants, agents and servants in the course of their employment, ignored plaintiff's complaints of pain, and insisted that he follow the usual hospital daily routine for ambulatory patients. This routine consisted of moving decedent about in his bed, walking decedent to the bathroom, placing him under the care of defendant's physical therapists for walking and other muscle exercises, rubbing and manipulating decedent's legs and hips. By reason of such daily manipulation of decedent's fractured hip the bones therein were prevented from forming a proper union. The aforementioned acts of defendant by...