Penaloza v. Baptist Memorial Hospital

• Court: Texas Civil Court of Appeals
• Writing for the Court: LONG
• Citation: Penaloza v. Baptist Memorial Hospital, 304 S.W.2d 203 (Tex. Ct. App. 1957)
• Decision Date: 14 June 1957
• Docket Number: No. 3316,3316
• Petition History: writ ref'd n.r.e.
• Parties: Anthony PENALOZA, Appellant, v. BAPTIST MEMORIAL HOSPITAL, Appellee.

Page 203

304 S.W.2d 203

Anthony PENALOZA, Appellant, v. BAPTIST MEMORIAL HOSPITAL, Appellee.

No. 3316.

Court of Civil Appeals of Texas, Eastland.

June 14, 1957.

Rehearing Denied July 12, 1957.

James L. M. Miller, San Antonio, for appellant.

Matthews, Nowlin, MacFarlane & Barrett, San Antonio, for appellee.

LONG, Justice.

Anthony Penaloza instituted this suit against Baptist Memorial Hospital for personal injuries sustained by him as the result of a potassium permanganate pill being orally administered to him by a nurse in said hospital. Defendant answered that it was a non-profit, charitable hospital duly incorporated as such and at the time plaintiff was a patient in its hospital it was being operated as a non-profit, charitable institution. Defendant specially pleaded its immunity from liability to plaintiff, alleging that it was not liable for the alleged negligent acts of its nurses and employees in the performance of delegable duties, as a matter of law. The parties entered into the following stipulation:

'The parties hereto by their respective attorneys of record, stipulate and agree that at all times involved in this suit, the Baptist Memorial Hospital was and is a non-profit, charitable hospital or institution, duly incorporated as such under the laws of the State of Texas by filing its Charter in the office of the Secretary of State on March 24, 1948, and that at the time Plaintiff was a patient in said hospital on or about December 19, 1955, said hospital was being operated as a non-profit charitable institution.'

Depositions were taken of the plaintiff, the nurse, Maggie Wilson, who administered the potassium permanganate, and Mr. F. R. Higginbotham, the administrator of the hospital. Based upon the stipulation of the parties and the above depositions defendant moved for a summary judgment under 166-A, Texas Rules of Civil Procedure, contending that there were no genuine issues of fact and that as a matter or law defendant was entitled to a judgment. Plaintiff also filed a motion for summary judgment. The court granted defendant's motion for a summary judgment, entered judgment that plaintiff take nothing and overruled plaintiff's motion for summary judgment. Plaintiff has appealed.

By his first three points plaintiff contends the court erred in granting defendant's motion for summary judgment because there were the following issues of fact: (1) whether defendant was negligent in the selection of Maggie Wilson to administer medicine to the patient; (2) whether defendant was negligent in failing to label the medicine administered to plaintiff with the warning 'not to be taken internally' and (3) whether defendant was negligent in allowing the commingling of medicines prescribed for plaintiff not to be taken internally with medicines to be taken internally, without clearly distinguishing one from the other. We find no merit in these points and they are overruled.

The evidence discloses that on December 12, 1955, plaintiff was admitted to the Baptist Hospital in in San Antonio as paying patient. Plaintiff at that time had a skin rash or fungus growth on his feet and lower legs. The doctor attending plaintiff prescribed a daily bath of plaintiff's feet in water in which a potassium permanganate pill had been dissolved. On the night of December 1., 1955, the nurse who was the supervisor of the floor on which plaintiff was located made a change of personnel administering medicine to plaintiff. She selected Maggie Wilson, a vocational nurse, to give the 8 o'clock medication on that night. The medicine for plaintiff was kept in a pigeonhole receptacle with his name and room number thereon. There were some pills in this pigeonhole which were to be taken internally and the potassium permanganate pill which was to be used externally. These pills were kept in separate containers. The box containing the potassium permanganate pills was plainly marked 'Potassium Permanganate'. Maggie Wilson took the pills that were to be taken internally and the pill that was to be used externally to the room of plaintiff and administered all of said pills to him internally. As a result of plaintiff's taking the potassium permanganate pill he became ill and vomited. His doctor was immediately called and he pumped the plaintiff's stomach.

It is the well settled law of this state that a charitable hospital is not liable for injuries to its patients sustained as a result of the negligence of its employees unless the hospital failed to exercise ordinary care in the selection or retention of such employees and this is true without regard to whether the patient was a paying patient or a free patient. St Paul's Sanitarium v. Williamson, Tex.Civ.App., 164 S.W. 36 (Writ Ref.); Enell v. Baptist Hospital, Tex.Civ.App., 45 S.W.2d 395 (Writ Ref.); Steele v. St. Joseph's Hospital, Tex.Civ.App., 60 S.W.2d 1083 (Writ Ref.); Southern Methodist University v. Clayton, 142 Tex. 179, 176 S.W.2d 749; Baylor University v. Boyd, Tex.Civ.App., 18 S.W.2d 700; Jones v. Baylor Hospital, Tex.Civ.App., 284 S.W.2d 929; 9 Tex.Jur. 66.

The evidence shows that Maggie Wilson had completed the prescribed course for vocational nurses and had received a license from the State of Texas to practice her vocation. Article 4528c, Vernon's Ann.Civ.St., provides in part that a vocational nurse must be trained to administer medication. She had been practicing her vocation continuously for more than three years. Mr. Higginbotham, the administrator of the hospital, testified that she met all of the technical requirements as a vocational nurse and that he had never received any notice that she was in any way incompetent prior to the administration of the potassium permanganate pill nor at any time subsequent thereto. We hold that there is no issue of fact as to whether the defendant was negligent in the selection of Maggie Wilson to administer medicines to plaintiff.

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