McDonald v. Foster Memorial Hospital

• Decision Date: 01 May 1959
• Citation: 170 Cal.App.2d 85,338 P.2d 607
• Court: California Court of Appeals Court of Appeals
• Parties: Charolette McDONALD, a minor, by her Guardian ad litem, Ernest E. McDonald, Plaintiff and Appellant, v. FOSTER MEMORIAL HOSPITAL, Doe One, Doe Two, and Doe Three, Defendants. Foster Memorial Hospital, Defendant and Respondent. Civ. 23275.

Page 607

338 P.2d 607

170 Cal.App.2d 85

Charolette McDONALD, a minor, by her Guardian ad litem, Ernest E. McDonald, Plaintiff and Appellant, v. FOSTER MEMORIAL HOSPITAL, Doe One, Doe Two, and Doe Three, Defendants.

Foster Memorial Hospital, Defendant and Respondent.

Civ. 23275.

District Court of Appeal, Second District, Division 1, California.

May 1, 1959.

Hearing Denied June 24, 1959.

Morgan & Beauzay, San Jose, for appellant.

Callaway, Kirtland & Packard, Robert C. Packard, Bertram L. Linz, Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff, a child of ten years, was admitted to defendant hospital for the removal of tonsils and adenoids. She sustained certain injuries prior to surgery and sued defendant for damages caused by its alleged negligence. Although the cause involved four days of trial, and the jury had deliberated only less than three hours, the trial judge discharged the jury upon its failure to agree on a verdict. Motions for nonsuit and a directed verdict having been previously denied, defendant moved under section 630, Code of Civil Procedure, for judgment in its favor. The motion was granted and plaintiff has appealed from the judgment which followed.

Motions under section 630, Code of Civil Procedure, are governed by the same rules applicable to motions for nonsuit and directed verdict. Thus, they may properly be granted 'when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff' (Carpenter v. Atchison, T. & S. F. Ry. Co., 109 Cal.App.2d 18, 23, 240 P.2d 5, 8). In the light of the foregoing rule, the following is a fair summary of the pertinent facts. Our task in this respect has not been made easier by the failure of appellant's counsel to support their statements by appropriate references to the record (Rule 15(a).

Plaintiff, ten years old, entered defendant hospital in mid-afternoon of December 26, 1955. She was assigned to the second floor and placed in a hospital bed of standard size equipped with side rails extending about 15 inches above the bed. Three nurses, all assigned to the 3:00 p.m.--11:00 p. m. shift, were on duty. Of these three, Nurse Sallee was in charge and, although licensed and registered in Idaho, she had not yet received her license under this state's reciprocity law; the other two nurses on duty were registered and licensed in California.

There is no record on the temperature and pulse chart that, upon admission, plaintiff's pulse was taken. However, later she was given a physical examination by Dr. Martin, her anesthesiologist, who prescribed the following preoperative medication: one and one-half grains of nembutal to be administered at the hour of sleep, and again at 6:00 a. m., three-fourths of a grain to be repeated if needed; fifty milligrams of demoral and one one-fiftieth grain of atropine at 7:00 a. m. At 9:15 p. m., Nurse Sallee administered the first dosage of nembutal.

At 11 o'clock, Nurse Detter came on duty. She was registered in Great Britain, but not in California, and had been employed by defendant since 1951, during which time she had been regularly giving injections. At 11:00 p. m., finding plaintiff outside her room, she put her back in bed; at 11:30 p. m., after checking Dr. Martin's preoperative orders, she gave plaintiff three-fourths of a grain, of nembutal. Plaintiff's pulse and temperature were not taken thereafter, but Nurse Detter subsequently advised her night supervisor of the additional medication administered. Between 5:30 a. m. and 6:00 a. m., plaintiff was taken to the bathroom by an attendant nurse after first being clothed with a cap and gown for surgery; at that time she was sleepy and under sedation. Upon being returned to her bed, the side rails were put up. At 6 o'clock, plaintiff was awake and Nurse Detter gave her a grain and a half of nembutal. At 6:15, she was still awake and talked to the night supervisor. At 7:00, plaintiff appeared to be asleep again and Nurse Detter then injected intramuscularly the prescribed dosages of demoral and atropine. Plaintiff was not awakened although her muscles reacted to the stimulus. When Nurse Detter last saw plaintiff at 7:00 a. m., she was under the influence of hypnotics and appeared to be asleep.

At 7:15 plaintiff's temperature was taken by a registered nurse who had just come on duty; she was then sleeping quietly, her color was good, and she was breathing normally. At approximately the same time her pulse was taken by another registered nurse who described her condition as normal for a patient under preoperative medication. Plaintiff's pulse was noted to be 104, which, according to the nurse, was within normal range under the circumstances, and she did not report the fact to her supervisor. Both of these registered nurses testified that the bed's side rails were up, as did plaintiff's father who looked into his daughter's room and stated that she did not appear to be restless.

At 7:23 a. m., plaintiff fell out of her bed, sustaining a lineal fracture of the jaw. When plaintiff was found on the floor the side rails of her bed were still up. She testified that when she returned from the bathroom at 6 o'clock a. m., she went back to sleep and could recall nothing, including the fall, until 8 o'clock. Dr. Martin examined plaintiff at 7:35 a. m., and stated she was then conscious, although sedated, and responded to his questions. He further testified that he did not observe any condition which indicated that plaintiff had any side effects from the medication administered, such as reaction, allergy or susceptibility. At 11:40 a. m., however, his progress report disclosed that plaintiff was then complaining of headache and seeing double 'which is not incompatible with a hangover from medication, however it could be due to the fall.' The hospital records also included an entry by another doctor that immediately after the fall plaintiff complained of double vision.

The chief contentions urged by appellant concern the sufficiency of the evidence, aided by the doctrine of res ipsa loquitur, to support a judgment in her favor; and error by the trial court in refusing proffered instructions on the care required of respondent hospital and the application thereto of res ipsa loquitur. Supportive of her claims that the evidence was sufficient to sustain a verdict against respondent, appellant argues that the hospital was guilty of negligence as a matter of law in violating certain statutes governing the nursing profession and the administration of narcotic and hypnotic drugs; and that jury questions were raised by evidence establishing, or tending to establish, that respondent and its employees failed to furnish the care and facilities commensurate to her needs.

We first consider whether the law prohibits the furnishing of drugs by nurses in the category of Nurses Sallee and Detter. Section 2725, Business & Professions Code, defines the practice of nursing as 'the performing of professional services requiring technical skills and specific knowledge * * * acquired * * * in an accredited school * * * and practiced in conjunction with curative or preventive medicine as prescribed by a licensed physician and the application of such nursing procedures as involve understanding cause and effect in order to safeguard life and health of a patient and others.' It is therein further declared that 'A professional nurse * * * is a person who has met all the legal requirements for licensing as a registered nurse in the State * * *.' Section 2732 of the same code provides that no person shall practice nursing as defined by section 2725 without a license. Next, and with reference to the control of hypnotic drugs (nembutal being in that category) by a hospital not employing a pharmacist, section 4225, Business & Professions Code, specifies that '(t)he supply is to be made available to a registered nurse, for administration, on the order or direction of a physician, to patients registered in the hospital, or to emergency cases under treatment in the hospital.' Appellant contends that by virtue of the foregoing statutes only a California registered nurse could administer the drugs prescribed for her, and neither Nurse Sallee nor Nurse Detter having been licensed in this State, both were guilty of negligence per se.

Without going further into the matter of whether both nurses technically may have violated one or more statutes by the administration of the drugs prescribed, it does not follow that if such violation be deemed to exist, it must be considered as negligence per se. While it is elementary that an act in violation of a statute is negligence as a matter of law, it is also established that unusual conditions may be shown to excuse or justify the violation. 'Each violation must be considered in connection with the surrounding circumstances' (Curtis v. Q. R. S. Neon Corp. Ltd., 147 Cal.App.2d 186, 189, 195, 305 P.2d 294, 300). In Alarid v Vanier, 50 Cal.2d 617, 624, 327 P.2d 897, 900, the Supreme Court recently restated the rule as follows: 'In our opinion the correct test is whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.' Whether such violation was excusable under the circumstances ordinarily presents a question of fact for the jury except in a case where reasonable men can draw but one inference from the facts (Figlia v. Wisner, 150 Cal.App.2d 109, 112, 309 P.2d 832).

Nurse Sallee, who administered the first dosage of nembutal, was registered in Idaho; Nurse Detter, who furnished the remainder of the...