Okla. Hosp. v. Brown

• Decision Date: 30 May 1922
• Docket Number: Case Number: 10580
• Citation: 1922 OK 193,208 P. 785,87 Okla. 46
• Parties: OKLAHOMA HOSPITAL v. BROWN.
• Court: Oklahoma Supreme Court

1922 OK 193

208 P. 785

87 Okla. 46

OKLAHOMA HOSPITAL v. BROWN.

Case Number: 10580

Supreme Court of Oklahoma

Decided: May 30, 1922

Syllabus

¶0 1. Evidence--Expert Testimony -- Personal Injuries.

When in an action for personal injury, the injury complained of is of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be proven by the testimony of skilled professional persons.

2. Trial--Demurrer to Evidence.

The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted. The court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant.

3. Appeal and Error--Harmless Error--Overruling Demurrer to Evidence.

Where defendant demurs to the evidence of the plaintiff in chief, and afterwards introduces evidence, which supplies the omission or defect in the evidence of the plaintiff, the error in overruling the demurrer is cured, and the ruling thereon becomes harmless.

Error from District Court, Tulsa County; N.E. McNeill, Judge.

Action by C. A. Brown against Oklahoma Hospital for damages for personal injuries. Judgment for plaintiff, and defendant brings error. Affirmed.

A. F. Moss and L. G. Owen, for plaintiff in error.

Biddison & Campbell, for defendant in error.

NICHOLSON, J.

¶1 This action was instituted by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, to recover damages for injuries alleged to have been sustained by the plaintiff while he was being treated in the hospital of the defendant in Tulsa. We will refer to the parties as they appeared in the trial court. It is disclosed by the record that the plaintiff sustained an injury to his back and spine which caused the muscles of his lower back and legs to become paralyzed and rendered his back in the lumbar region insensible to pain; that he was by his employer taken to the defendant's hospital and admitted in said hospital as a patient; that owing to plaintiff's condition he was placed on what is known as a "Bradford Frame," which was an iron frame the size of a mattress with canvass stretched over each end and an open space in the middle from 18 inches to two feet wide; that a bed pan was placed under this frame; that in order to keep the body of the plaintiff from touching the bed pan, a brick was placed under each corner of the frame. It further appears that a sore developed on plaintiff's back and hips, and it is this sore that is made the basis of the action, the plaintiff contending that such sore was caused by the negligence of the defendant in permitting his body to rest upon or touch the bed pan during a greater part of the time he was in the hospital, which was from September 14, 1917, to sometime in the month of October, 1917. A verdict was returned in favor of the plaintiff for the sum of $ 3,750, upon which judgment was rendered, and to review which this proceeding in error was commenced.

¶2 At the close of the plaintiff's evidence the defendant presented a demurrer thereto on the ground that such evidence was insufficient to constitute a cause of action against the defendant. The demurrer was overruled and it is contended that in this the court erred, for the reason that the plaintiff sought to recover damages on account of certain bed sores with which he claims to have been afflicted, and there was no competent evidence, and in fact no evidence, as to the cause of such bed sores; that the cause of the same is a matter of science and is a subject on which only expert testimony is admissible; that plaintiff's injuries being a matter of science, the cause thereof could only be proven by the testimony of skilled professional persons.

¶3 It is the settled rule that where the injuries complained of are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science and must necessarily be determined by the testimony of skilled professional persons. Willet v. Johnson, 13 Okla. 563, 76 P. 174; Atchison, T. & S. F. Ry. Co. v. Melson, 40 Okla. 1, 134 P. 388; Ft. Smith & Western Ry. Co. v. Jones, 63 Okla. 228, 163 P. 1110; Ft. Smith & W. Ry. Co. v. Hutchinson, 71 Okla. 139, 175 P. 922; St. L. & S. F. Ry. Co. v. Criner, 41 Okla. 256, 137 P. 705.

¶4 If the injuries for which the plaintiff seeks to recover were bed sores, and if the cause and effect of bed sores is a matter of science, there would be merit in defendant's contention, and the rule above announced would apply, but nowhere do we find that the plaintiff claims to have been afflicted with bed sores. In his petition he sets out the nature and cause of the injury for which he asks damages in the following allegations:

"Said employees and nurses compelled the plaintiff to lie prone upon his back both day and night over and upon a metal vessel, known and designated as a bed pan.

"That said metal was unprotected on its edge by a cushion, cloth, rubber or other substance to protect the naked flesh of the plaintiff from bruises and incisions therein caused by the constant weight of plaintiff's body against said metal edges or rims. * * *

"That the infrequent changes of said pan resulted in the accumulation of foul and damp discharges of matter, which while deposited therein touched and evaporated upon and against the exposed flesh of the plaintiff's back and buttocks. * * *

"The plaintiff alleges that the aforesaid negligent, wrongful, unskillful and cruel treatment suffered by him, at the hands of defendant's employes and nurses, caused him great bodily pain and mental anguish during the period he was confined in said hospital; that the contact of his flesh with the said metal pan and damp, foul and poisonous issues therefrom resulted in a chronic sore or wound, and as plaintiff has gradually been recovering under proper care from the original paralyzed condition which caused his entry into the defendant's hospital, the sensibility to pain in his back is becoming more noticeable, with the result that he has and does suffer excruciating bodily pain and mental anguish from said wound or sore caused as hereinbefore alleged solely by defendant's negligence."

¶5 And he testified that his back and hips rested against the bed pan; that there was no padding or rubber or anything around the pan to protect his flesh. He further testified that he told Doctor Clinton, who was president of the defendant hospital, that he believed the pan would hurt him and that the Doctor replied: "You are not resting heavy enough on that for it to hurt you."

¶6 He further...