Newhall v. Central Vermont Hospital, Inc., 117-74

• Decision Date: 02 December 1975
• Docket Number: No. 117-74,117-74
• Parties: Laura NEWHALL v. CENTRAL VERMONT HOSPITAL, INC.
• Court: Vermont Supreme Court

Page 890

349 A.2d 890

133 Vt. 572

Laura NEWHALL v. CENTRAL VERMONT HOSPITAL, INC.

No. 117-74.

Supreme Court of Vermont.

Dec. 2, 1975.

David L. Cleary, of Richard E. Davis Associates, Inc., Barre, for plaintiff.

Downs, Rachlin & Martin, St. Johnsbury, for defendant.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

LARROW, Justice.

Plaintiff, a lady of 63, entered thd defendant hospital in November, 1969, complaining of bursitis in her right knee and general psoriasis. On her second day, the nursing staff failed to respond to her call light as they previously had, so that after waiting a 'long time' for a bedpan, she attempted to go to the lavatory on her own, and fell, sustaining back injuries. She had previously received sedation which could have caused dizziness. Defendant appeals a jury verdict and resulting judgment of $30,594.00, claiming error in denying its motions for directed verdict and judgment n.o.v., and its motion to set aside the verdict as excessive and grant a new trial.

On the question of liability, the central theme of defendant's argument is that there was no expert testimony introduced to guide the jury as to the reasonableness or unreasonableness of the delay experienced in getting an answer to plaintiff's call light. This is, it says, a situation where the general rule is that expert evidence is required to establish a standard of care, and not within the recognized exception for negligence within the common knowledge and experience of a lay person. Washington Hospital Center v. Butler, 127 U.S.App.D.C. 379, 384 F.2d 331 (1967); Hornbeck v. Homeopathic Hospital Association, 197 A.2d 461 (Del.Super.1964); Kastler v. Iowa Methodist Hospital, 193 N.W. 2d 98 (Iowa 1971); Restatement (Second) of Torts § 283 (1965).

We perceive nothing technical or beyond the common knowledge of a lay person in the essential function of supplying a bedpan with reasonable expedition to a bed patient in a hospital. Ministering to the fundamental needs of such a patient is, as plaintiff argues, essentially routine care, ministerial and not technical. It is well within the applicable rule requiring 'such reasonable care as the patient's known (or should be known) condition may require or demand.' Cf. Kastler, supra, and Restatement (Second) of Torts, supra. Here the evidence showed a patient relatively immobile, previously supplied with a bedpan, and under sedative medication. No special skill is required to supply a bedpan when needed; no special expertise is required to foresee the possibility of a fall resulting from the patient's attempt to supply the deficiency in care.

Although not cited by either party, we regard our decision in Largess v. Tatem, 130 Vt. 271, 291 A.2d 398 (1972), as controlling. There Mr. Justice Daley, speaking for a unanimous court, said (at pages 278-79, 291 A.2d at page 402):

The defendant maintains that Vermont law requires that the care that is to be exercised by a physician in the treatment of a patient must be established by expert medical testimony and cites several cases supporting this rule of law. This Court finds no argument with that premise. However, for every rule of law, there must be a rational reason. It is obvious that the trier of fact must have sufficient technical and scientific testimony at his disposal provided by expertwitnesses, to answer a technical and sciwntific question of fact. But when a physician's lack of care has been such as to require only common knowledge and experience to understand and judge it, expert medical testimony is not required to establish that care.

Under the circumstances of this case, the evidence presented to the trier of fact clearly indicated the failure of the defendant to inquire prior to make a judgment concerning the weight bearing of the plaintiff was a gross violation of the due care owed by a physician to a patient. This violation of that due care being so apparent to be comprehensible to the lay trier of fact, expert medical testimony is not needed to substantiate the violation which is already apparent. (Citations omitted).

The defendant further argues that there was no evidence before the jury from which it could find that failure of care on the part of the hospital operated as a proximate cause of plaintiff's fall. We disagree. The failure to provide a bedpan was a substantial factor, as a matter of common experience, in forcing the plaintiff to leave her bed. We cannot concur with plaintiff's argument that this was the only course of action left open to her, but it certainly was the course of action most reasonably to be expected from the average patient.

The appellant hospital further argues that there was no evidence from which a jury could find any shortage of care upon its part, because plaintiff did not establish that her call light was functioning properly or that the staff was, or should have been, in a position to see it. Implicit in this argument is the proposition that the plaintiff must establish, not only the failure of the hospital to furnish the appropriate care for which she contracted, but also the total absence of circumstances which might mitigate that failure. We are not persuaded that her burden is so heavy, especially when the pertinent proof, easy of access to the defendant and within its own peculiar knowledge, is much less available to the plaintiff.

It is undoubtedly true, as defendant claims, that there could arise sudden and unforeseen contingencies which might interfere with the prompt delivery to plaintiff of her...