Ray v. Ameri-Care Hospital

• Decision Date: 13 April 1981
• Docket Number: AMERI-CARE,No. 14010,14010
• Parties: Gail Horne RAY v.HOSPITAL et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1127

400 So.2d 1127

Gail Horne RAY v. AMERI-CARE HOSPITAL et al.

No. 14010.

Court of Appeal of Louisiana, First Circuit.

April 13, 1981.

Writ Denied Sept. 11, 1981.

James A. Gray, II, New Orleans, for plaintiff-appellant Gail Horne ray.

Roger Fritchie, Hansen Scobee, Baton Rouge, for defendant-appellee Dr. Frank A. Silva.

Ronald A. Seale, A. G. Seale, Baton Rouge, for defendants-appellees Carl G. Murphy and Gulf Ins. Co.

David W. Robinson, Baton Rouge, for defendant The Merit Corp. of Tenn.

Before COVINGTON, CHIASSON and LEAR, JJ.

COVINGTON, Judge.

This suit seeks to recover damages for the wrongful death of George E. Ray who died on January 19, 1976, in the Ameri-Care Hospital after being admitted to that facility by Dr. F. A. Silva for psychiatric treatment following a diagnosis of schizophrenia, paranoid type. The plaintiff is Gail Horne Ray, the widow of the deceased. The defendants are Ameri-Care Hospital; its insurer, Gulf Insurance Company; its administrator, Carl G. Murphy; and Dr. F. A. Silva, a psychiatrist. ¹ After trial by jury, verdict was returned by the jury in favor of all defendants, with the trial court signing a judgment in accordance therewith.

In January of 1976, Mr. Ray, an employee of Exxon, began to act in a strange manner which caused his wife to realize that he needed medical attention. Through a friend, Thomas Morris, Ray was persuaded to consult with the company physician, Dr. Jones. After examination, Dr. Jones felt that Ray might have a chemical imbalance and should be admitted to the psychiatric ward at Ameri-Care, so he was sent there. The hospital was located on the fourth floor of the building now known as the Baton Rouge General Hospital annex on North Boulevard in Baton Rouge. It was a private psychiatric hospital which was planned primarily as a short-term facility and which received all psychiatric admissions in the Baton Rouge area at that time, except for those sent to the unit at Earl K. Long Hospital. The hospital, which was not housed in a general hospital, had facilities to handle 50 patients; but at the time of Ray's hospitalization, it was not filled to capacity, having about 23 patients.

Mr. Ray was admitted on Friday, January 16, 1976, and his history taken. He was first seen by Dr. F. A. Silva that evening. The doctor found him "delusional," and diagnosed him as "paranoid schizophrenic." "Routine orders" were given by Dr. Silva.

Dr. Silva testified at the trial that Mr. Ray had been indirectly referred to him by Dr. Jones, the doctor for Ray's employer, Exxon. When first Dr. Silva saw Ray, he was "anxious, confused, disorganized and delusional." The patient's history reflected that Ray had a delusion that he only needed "energy" to survive, so he had not taken any nourishment for three days. He requested a medical certificate to prove that he was not dead, presumably to back up his theory of survival-on-energy-alone.

"Routine orders" meant that the doctor did not consider that constant visual contact or mechanical restraint was needed, but that observation at frequent intervals of 30 minutes should be made, and that other normal routine care and treatment should be administered to the patient.

The patient seemed to be responding as could be expected, until the doctor received a phone call on Saturday that he was needed at the hospital due to Ray's reaction to an attempt by a lab technician to draw blood for tests. Mr. Ray, who was a large man, had become frightened and agitated at the prospect of having blood taken and was strongly resisting any such efforts. Upon his arrival at the hospital, Dr. Silva found that Ray was hallucinating. He appeared to hear voices. The doctor prescribed Haldol, a medication used for this type of condition. Dr. Silva then issued more orders, limiting visitors to the immediate family. The doctor did not consider visual contact (close supervision at ten minute intervals) was called for; and thought that if Mr. Ray were placed in a small cell (one used for close supervision), it would heighten his paranoia and have done him more harm than good. He also considered that strapping Ray to his bed or using other forms of mechanical restraint would have had seriously detrimental effects on the patient. Despite his reaction to the taking of his blood, Ray seemed on the whole to be calmer and to be improving. The patient appeared to have had a restful night; he was dressing himself appropriately, taking short walks out of his room and addressing persons he came in contact with in a pleasant manner. Dr. Silva felt that Ray's condition was such that in due course he could have returned to a productive life, but would probably have needed to remain on medication.

In the early morning hours of Monday, January 19, 1976, Mr. Ray was found drowned in the bathtub, presumably following an attempt to conduct an experiment as a result of a strange delusion that he was able to breathe under water. There was no indication that he had committed suicide.

In time, a suit for his wrongful death was filed by Mrs. Ray. The plaintiff requested that her suit be tried by jury; the trial lasted four days beginning January 21, 1980, with the jury's verdict and the judgment in favor of the defendants. The plaintiff has appealed. We affirm.

Dr. Henry R. Olivier, a psychiatrist and chief of staff at the hospital, testified that he would not have felt any undue concern about Ray killing himself. He saw no need for mechanical restraints or visual contact. Dr. Olivier indicated that he would not have anticipated that Ray would try to breathe under water.

Dr. Robert L. Newman, Jr., a psychiatrist at Touro in New Orleans, indicated that his treatment of a patient in Ray's condition would have been along lines similar to those used by Dr. Silva.

Marie Landry, Assistant Director of Nursing at the hospital, testified from the records that there was no indication that Mr. Ray was hostile or combative. He was cooperative. There was no need of visual contact or mechanical restraint. She stated that mechanical restraints on a paranoid person are always a last resort.

From the hospital records, Mrs. Landry indicated that as an expert in her field, she would not have anticipated that a man in Ray's condition would attempt to put his head under water and try to breathe.

Carolyn Commenia, a nurse on duty at the time, stated that the patients were checked or observed at 30-minute intervals. Ray was not hostile, and gave no indication that he would try to hurt himself or others, or attempt to breathe under water, or try any other dangerous experiment or activity.

Thomas Morris, a close friend of the deceased, testified that Mr. Ray agreed to go to the psychiatrist only because he wanted to prove to everyone that he was sane, not because he thought anything was wrong with him. Morris described some of the strange behavior of Ray which had caused his wife and friends to think he needed medical help. He did not consider there was any risk of Ray trying to breathe under water. He did not anticipate any danger to Ray.

Mrs. Ray indicated that the possibility of Ray's attempting to breathe under water had not previously come up. She gave the information that Ray's employer's doctor, Dr. Jones, after examination, felt that Ray might have a chemical imbalance and ought to be admitted to the psychiatric ward at Ameri-Care. Mrs. Ray was informed of this disposition over the phone. Mrs. Ray briefly visited him and she also talked with him over the phone.

They knew he was acting strangely and they just wanted to see what his problem was. No one was really concerned about his problem being of a serious nature at that time.

On this appeal, the plaintiff takes the position that the trial jury erred in failing to apply the doctrine of res ipsa loquitur to the facts of the instant case, and in finding that the defendants had carried the burden of proving that the death of the deceased did not result from negligence on their part. As a corollary, the appellant contends that the violation of a safety regulation by the hospital constituted negligence; that the hospital staff failed to provide proper supervision for the deceased; and that the hospital's agents were negligent in their actions when they found the patient face down in the tub of water. The appellant also urges that Dr. Silva was negligent in his evaluation of the deceased and in his failure to give proper orders in regard to the safety of his patient.

The appellant further argues that the trial judge erred in failing to properly charge the jury on the standard of care by which the duty of the hospital and doctor toward the patient should have been measured and the type of evidence that could be considered in determining the negligence of the defendants.

The appellant first argues that the jury erred in failing to conclude that the doctrine of res ipsa loquitur applied and to properly apply the doctrine. The judge charged the jury as follows:

"In the ordinary case, the mere fact that the plaintiff may have suffered harm does not furnish evidence that it was caused by anyone's negligence, and the plaintiff must introduce other evidence of some negligence on the part of the defendant. In a few exceptional cases, the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to negligence of the person having control of the thing which caused the injury. In determining whether the hospital is at fault, you may infer that because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to some omission of the defendant's duty.

"In order to infer that the accident was due to the negligence of the hospital, the plaintiff must show:

"(1) A...