McGuire v. Overton Memorial Hospital

Decision Date12 September 1974
Docket NumberNo. 769,769
Citation514 S.W.2d 79
PartiesLonnie C. McGUIRE, Appellant, v. OVERTON MEMORIAL HOSPITAL et al., Appellees.
CourtTexas Court of Appeals

McGuire, Levy & Collins, John E. Collins, Irving, for appellant.

Kenley, Boyland, Hawthorn, Starr & Coghlan, Herbert Boyland, Longview, for appellee, Overton Memorial Hospital.

Gordon Wellborn & Rex Houston, Blake Bailey, Henderson, for appellee, Dr. Jules R. Levin.

McKAY, Justice.

This is a summary judgment case. Plaintiff 1 Lonnie C. McGuire brought this suit against Overton Memorial Hospital and Dr. Jules Levin for injuries received when he fell trying to get out of bed while a patient in the hospital. He alleged that the hospital was negligent in failing to provide a bed with sideboards or guard rails, in failing to take proper cognizance of plaintiff's condition and failing to anticipate and guard against the accident, in failing to exercise proper care and attention toward plaintiff in his weakened state, and in failing to provide adequate nurses and attendants to sufficiently care for plaintiff. He alleged that Dr. Levin failed to require the hospital to provide plaintiff with sideboards or rails to prevent him from falling from his bed, that the doctor failed to exercise proper care after ordering strong medications, and that he failed to require the presence of an adequate number of nurses and attendants to sufficiently care for plaintiff in his weakened condition. Both defendants answered by general denial, and the hospital claims governmental immunity alleging that the operation of the hospital was a governmental function of the City of Overton.

The trial court granted the motion of each defendant for summary judgment and plaintiff appeals.

Plaintiff contends in his four points of error (1) that both defendants failed to establish by their summary judgment proof that there is no genuine issue of fact as to one or more of the essential elements of plaintiff's cause of action; (2) defendant Levin did not establish, as a matter of law, that there are no genuine issues of fact; (3) that Levin's summary judgment proof consisted only of his own deposition, he being an interested witness; and (4) that the hospital was liable under the Texas Tort Claims Act.

Plaintiff was admitted to the hospital on November 19, 1970, with the diagnosis of 'possible acute appendicitis,' and Dr. Levin was his treating physician. Surgery was performed the following morning by Dr. Levin who found an 'extensive inflammatory process to the point of gangrene.'

On December 4, 1970, plaintiff, while attempting to get out of his bed, fell and sustained a fracture to his right hip. Dr. Levin did not order bed rails for plaintiff and the bed in which he was placed was not equipped to take bed rails. Dr. Levin testified in his deposition that plaintiff's family was instructed to have someone attend plaintiff at all times during his stay in the hospital and the family agreed to do so. Plaintiff's wife was in the room with him when he fell, but she was apparently asleep. Plaintiff had been taking medication since his surgery, and at 9:00 p.m. prior to his fall out of bed around midnight, he had received a carbrutal capsule, a sleep-inducing medication. He had not been able to get out of bed without assistance prior to his fall, but he had sat on the side of the bed and had sat in a chair a few times with assistance.

Dr. Levin acknowledged that whether bed rails were ordered, or should have been ordered, he was the person who would have done so although sometimes nurses put them up when they feel a patient needs them. Bed rails were available in the hospital at the time.

After sustaining the hip fracture in his fall Plaintiff was transferred by Dr. Levin to Medical Center Hospital in Tyler where Dr. McCarthy performed orthopedic surgery.

Rule 166--A, Texas Rules of Civil Procedure, provides that a summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965). The evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v . Kinsel,396 S.W.2d 19 (Tex.Sup.1963). The question to be determined is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970).

The principal evidence relied upon by plaintiff-appellant is contained in the deposition of Dr. Levin. His deposition was taken on April 1, 1972, and plaintiff's first amended petition was filed August 16, 1972. The hospital's brief makes the unchallenged statement that Dr. Levin was not made a party until August 16, 1972, when the amended petition was filed, and, therefore, was a disinterested witness at the time he gave deposition testimony. We are not prepared to infer his answers would have been different had he then been a party at the time his deposition was taken.

In his deposition Dr. Levin testified that the plaintiff was disoriented immediately after his surgery, and that there were occasional periods up through the date of his fall that he was somewhat disoriented which Dr. Levin attributed 'to a certain amount of toxicity and some febrile reaction.' He further testified he thought plaintiff was doing well prior to the time he fell out of bed on December 4th, and that plaintiff had not been semi-comatose or disoriented on that date. Portions of Dr. Levin's testimony we quote:

'Q. Had Mr. McGuire been able to get out of bed prior to that time?

A. I believe that I left an order prior to that saying he could dangle, which meant he could sit up on the side of the bed, and if he felt up to it, they could put him in a chair.

Q. In fact, was he able to sit up after that time?

A. Yes, I believe he did.

Q. * * * What medication had he had in the twenty-four hours prior to the time that he fell, Doctor?

A. He was given a carbrutal capsule for sleep, and that was shortly after midnight December 3rd. He also had some oxygen in his room, and he was given some for a short period of time. He also received on that date Azo Gantrisen.

Q. What is that, Doctor?

A. That is the urinary chemotherapeutic drug. He also received lomatil, which is an antidiarrheal medication. He was also given two grams of paregoric, and was given some Kolantyl gel. This he was given between 8:00 A.M. and 11:00, the morning of December 3rd. He received Azo Gantrisen during the day according to the way it was ordered, and he received lomatil. At 7:00 P.M. that night, be was given some Terpin Hydrate with codeine for a cough that he had. At bedtime, at 9:00 P.M., he was given a carbrutal capsule.

Q. Is that a sleep inducing medication?

A. That is a sleep inducing medication.

Q. Now Doctor, you did not at any time in your physician's orders order bed rails, did you?

A. No, I did not.

Q. Why didn't you?

A. The bed he was in, in the room he was in, I believe, was not equipped to take bed rails.

Q. Why didn't you put him in one that was equipped for bed rails?

A. Well, this was a room that was selected by him. I don't put every patient in every room where a hospital bed will take a bed rail, it depends on the individual.

Q. Didn't you feel at that time, with reference to the condition of the patient that it would have been advisable to have had bed rails up on that bed?

A. Well, the family was instructed to have somebody there with him all of the time. They told me that there would be somebody with him constantly, and I let it go at that .

Q. Well, I understand that, Doctor, but I am still wanting to know, didn't you if fact feel as a medical doctor that it would be better medical practice to have bed rails up on that bed?

A. Not necessarily.

Q. Don't you feel that there would be much less likelihood of somebody falling out of the bed, if there was a bed rail?

A. There would be less likelihood, yes. But, I have seen patients where they have climbed over the bed rails if they wanted to get out of bed badly ehough.

Q. Doctor, tell me, do you think Mr. McGuire was in a condition to climb over the bed rails?

A. No, I don't think he was.

Q. Isn't it good medical practice to prescribe bed rails for patients like Mr. McGuire?

A. It probably is.

Q. You were the treating physician, were you not, Doctor, of Mr. McGuire?

A. Yes.

Q. You were the only treating physician?

A. Right.

Q. And as such with reference to other employees, or other nurses, or parties there in the hospital, at least you are the captain of the ship, you were running the show insofar as Mr. McGuire was concerned?

A. Yes.

Q. And being in that position, is it not correct to say that if bed rails were to have been ordered or should have been ordered that you were the one who would have done it?

A. Yes. But occasionally, the nurses will put them up when in their judgment they feel a patient needs them.

Q. Who would be the person in charge of making that decision if it had come to light at a time when you were not there, doctor, that night?

A. It would have been the charge nurse.

Q. * * * Was it your medical opinion that he did not need bed rails?

A. Nor necessarily. I might have ordered some bed rails early in his postoperative period, if they were available for that bed.

Q. And having a member of the family there and the way that he was recovering, you didn't think it was necessary for either you or the hospital to provide him with any other type of nurse or any bed rails, did you?

A. No, sir.

Q. So as far as you could tell from the instructions you gave the hospital, the hospital...

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