Pikeville Methodist Hospital v. Donahoo

• Decision Date: 25 October 1927
• Citation: 221 Ky. 538
• Parties: Pikeville Methodist Hospital v. Donahoo.
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 538

Pikeville Methodist Hospital v. Donahoo.

Court of Appeals of Kentucky.

Decided October 25, 1927.

1. Hospitals. — A purely charitable hospital is not amenable to patients for any damages growing out of alleged negligence, though such negligence consists in violation of duty imposed by express or implied contract.

2. Hospitals. — Hospital sued for injuries to patient cannot take advantage of doctrine that purely charitable institution is not amenable to patients for damages resulting from negligence, in absence of allegation in petition or plea by it that it is a charitable institution.

3. Hospitals. — Refusal of instruction, warranted by evidence, in action against hospital for injuries to patient, to find for defendant if plaintiff was guilty of negligence, but for which his arm would not have been amputated, in violating doctor's instructions for prevention of infection after his discharge from hospital, held erroneous.

4. Hospitals. — Verdict against hospital, in suit for injuries to patient, held not supported by evidence, in absence of proof contradicting positive testimony of surgeon, alleged to have treated plaintiff's broken arm so negligently as to necessitate its amputation, that he was not employed by hospital.

Appeal from Pike Circuit Court.

STRATTON & STEPHENSON for appellant.

VANOVER & VANOVER and F.P. DAMRON for appellee.

OPINION OF THE COURT BY JUDGE LOGAN.

Reversing.

In his petition appellee alleged that he was injured in January, 1925, as the result of a fall which broke and fractured his right arm between the elbow and the shoulder; that he was placed in the charge of appellant, Pikeville Methodist Hospital, and put in the care of Dr. W.C. Gardner for medical and surgical treatment; that Dr. Gardner, acting for himself and for the hospital, undertook to give him medical aid and surgical treatment for his broken arm, and that after having done so Dr. Gardner placed him in bed, and "unskillfully, negligently, carelessly, and unprofessionally placed upon the forearm and hand of plaintiff's said broken arm, an electric heating apparatus or appliance, which was placed so close to the plaintiff's said hand and arm, and permitted to and did remain in such position for several hours, with sufficient heat in said electric apparatus and appliance to and did burn and cremate the flesh on the said hand and arm, and that by reason of said burning and cremating, caused by the unskillful, negligent, careless, and unprofessional conduct and acts of the said Gardner, as aforesaid, the skin and flesh quickly fell from his said hand and arm, and that the said Gardner thereby was caused to and did wrongfully, unskillfully, and unprofessionally, amputate the said arm between the elbow and shoulder joint, all without consulting with plaintiff's physician, to wit, Dr. Z.A. Thompson, and without the consent and against the will of the platiniff." The negligence alleged in the petition is directed at the negligence of Dr. W.C. Gardner, and unless he was the agent or servant of appellant there is no negligence alleged against appellant hospital.

Dr. Gardner demurred to the petition, and the demurrer was overruled. He filed his answer, which is first a traverse, and in a second paragraph he affirmatively pleads that he was employed by the employer of Donahoo to render surgical aid to him, and that he did so by giving his injuries the necessary surgical attention in accordance with the generally accepted practices of modern surgery; that after having so treated the injuries of appellee he was discharged from the hospital; and that appellee himself was then guilty of such negligence and carelessness in failing and refusing to comply with the instructions given him as to bring about an infection which made necessary the amputation of...