Robbins v. Jewish Hosp. of St. Louis

Citation663 S.W.2d 341
Decision Date13 December 1983
Docket NumberNo. 46193,46193
PartiesElaine ROBBINS, Plaintiff-Respondent, v. JEWISH HOSPITAL OF ST. LOUIS, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Theodore H. Hoffman, St. Louis, for defendant-appellant.

Parks G. Carpenter, St. Louis, for plaintiff-respondent.

GAERTNER, Presiding Judge.

Elaine Robbins instituted this negligence action to recover damages from defendant Jewish Hospital for injuries she sustained while a patient at the hospital. Following a jury verdict in favor of plaintiff, Jewish Hospital filed a motion for judgment n.o.v. in accordance with its motions for directed verdict or, in the alternative, for a new trial. The trial court denied the motion for judgment n.o.v., but granted the motion for a new trial for the following reasons: 1) the court erroneously admitted evidence of a slip by plaintiff which varied from plaintiff's pleading that she fell out of bed; 2) the court erred in its instruction to the jury which charged negligence in failing to raise both side rails of plaintiff's bed because the instruction departed from the plaintiff's pleadings; and 3) the court erred in giving an instruction defining "ordinary" rather than "professional" negligence. Plaintiff appeals from the order granting a new trial and Jewish Hospital cross-appeals from the denial of its motion for judgment n.o.v. The two appeals are consolidated.

The facts are uncomplicated. Viewing the evidence from the standpoint most favorable to plaintiff, Mrad v. Missouri Edison Co., 649 S.W.2d 936, 937 (Mo.App.1983) the jury could have found that plaintiff entered Jewish hospital on November 13, 1977, after an over-ingestion of drugs. Approximately 36 hours after her admission, following her transfer from the intensive care unit to an acute care unit, plaintiff suffered an accident resulting in a fracture to her left hip. Plaintiff remembers nothing from before her admission to the hospital until the day after her injury. Nurse Rutlege, the nurse on duty in the acute care unit at the time of the accident, chronicled the night's events. After coming on duty, she had familiarized herself with the patients' charts. Plaintiff's chart revealed that she had suffered, unrelated to her drug overdose, prior brain damage resulting in lameness and muscle spasms in her left leg for which she required a leg brace, weakness on her left side and arm, and impaired vision. Nurse Rutlege then personally checked on plaintiff, noting her responses, degree of alertness, grip, and mobility. She observed plaintiff use the bed pan placed on a bedside chair. Her testimony was equivocal about whether she gave the plaintiff physical assistance getting in and out of bed. However, she was positive she had directed plaintiff to signal for assistance when she wanted to use the bed pan. Nurse Rutlege testified that "I didn't want her to get out without assistance ... I felt it was necessary that somebody be present" in order to minimize the risk of injury. The nurse further stated that one way to prevent patients from getting out of bed without assistance would be to leave the bed rails in a raised position. Nevertheless, she left the bed rail on the side of the bed closest to the bed pan in the down position and continued on her rounds. She returned to plaintiff's room at 4:00 a.m. and discovered that plaintiff's I.V. had become disconnected. She reconnected it. She checked on plaintiff again at approximately 5:00 a.m. and found plaintiff sitting on the edge of the bed on the side with the lowered rail. Plaintiff had gotten out of bed unassisted and involuntarily urinated on the floor. In response to the nurse's query whether she had fallen, plaintiff had replied, "no, honey, I slipped." Nurse Rutlege could not recall if plaintiff said she slipped getting out of bed, after she got out, or while getting back in bed. Plaintiff's gown was dry; only her feet were wet from the urine. When asked if injured, plaintiff said no. Although plaintiff complained of a bruising sensation about her left leg, the nurse detected no evidence of discoloration, bruising, or swelling. She made no entry on plaintiff's chart of the episode until noon the following day when she learned that plaintiff, because of continuing complaints of pain, had been x-rayed, and that a fractured hip had been discovered. The nurse then made an addendum in the plaintiff's record of the previous night's occurrence. Plaintiff subsequently initiated her lawsuit to recover damages for the injuries she sustained.

On its cross-appeal from the denial of its motion for judgment n.o.v., defendant contends plaintiff failed to make a submissible case. The granting of defendant's motion for new trial erased the judgment against defendant; therefore, neither a final appealable judgment exists nor is defendant an aggrieved party with standing to appeal. We must dismiss its cross-appeal. § 512.020, RSMo 1978; Mrad v. Missouri Edison Co., 649 S.W.2d at 941. Nevertheless, where a plaintiff appeals asserting error by the trial court, the defendant may contest the issue of submissibility of plaintiff's case, an issue inherent in every appeal. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77 (1951); R.H. Macy & Co. v. Bell, 531 S.W.2d 58, 61 (Mo.App.1975).

Defendant contends plaintiff failed to make a submissible case because she presented evidence that she was injured as a result of "slipping," a fatal variance from her pleading of "falling from bed;" she failed to adduce expert testimony showing a deviation from the appropriate standard of professional care; and she failed to show a causal connection between the negligence pleaded, i.e. leaving the bed rail down, and her injury.

First, the issue of causation. It is, of course, axiomatic that plaintiff must establish a causal connection between the negligence charged or submitted and the loss or injury sustained. Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 245 (1955). The usual test of causal connection between a defendant's negligence and a plaintiff's injuries is whether the facts in evidence show that the injuries would not have been sustained in the absence of such negligence. Housden v. E.I. DuPont De Nemours & Co., 321 S.W.2d 430, 433 (Mo.1959). Faced with a contention that a plaintiff failed to make a submissible case, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723 (Mo. banc 1982).

Defendant argues that the absence of expert medical testimony based upon reasonable medical certainty that plaintiff's fracture was caused by a slip or a fall is fatal. However, Dr. Robert Rainey testified for plaintiff by deposition. He opined that plaintiff's continued complaints of pain in the left hip area were related to the incident which occurred in the hospital and that the injuries resulting from the accident during her hospitalization were permanent. Defendant's medical expert conceded that the injury sustained by plaintiff could have been caused by either a slip or a fall. This testimony was elicited, without objection, in response to questions which did not hypothesize the facts in evidence. Moreover, the establishment without medical testimony of a causal relationship between an accident and the injury sustained was explored by this court in Pruneau v. Smiljanich, 585 S.W.2d 252, 255 (Mo.App.1979):

The element of causation may be established in the absence of medical testimony, if the injury suffered may be categorized as one of "sudden onset." This latter term has been interpreted as embracing those "cases where the physical disability develops coincidentally with the negligent act, such as broken bones ..., immediate, continuing back pain ..., or an obvious wound." DeMoulin v. Kissir, 446 S.W.2d 162, 165 (Mo.App.1969).

In Pruneau a plaintiff's subjective complaints of headaches, backaches, visual impairment and nausea which appeared three or four days after the collision were within the "sudden onset" category justifying the submission of the case to a jury despite the absence of expert testimony regarding causal connection. Here, although plaintiff was unable to recall any of the events during the two days immediately following her admission to the hospital, ample evidence existed for a jury of laymen to infer a causal relationship between the incident at the hospital and plaintiff's fractured hip. Although plaintiff had suffered a pelvic injury to the groin area six months before in an unrelated accident, she had returned to work as a nurse at a rehabilitation center full time. She had been at Jewish Hospital, first in an intensive care unit and later in an acute care unit for 1 1/2 days with no reported complaints of hip or leg pains. Her first recollection of being at Jewish Hospital was the day after her injury, when she told her husband she had pain in her left hip. Nurse Rutlege reported that plaintiff complained of a "bruising sensation" of the left leg at the time she found her on the side of the bed at 5:00 a.m. Plaintiff's pain was severe enough to warrant x-rays before noon the same day. The x-rays disclosed a displaced left trochanteric fracture requiring four weeks of hospitalization, bed rest, and an additional 1 1/2 months delay before returning to work on a part-time basis. Nurse Rutlege testified the only occasion of a slip or fall by plaintiff occurred when plaintiff unassisted, attempted to use the bed pan on a chair.

These facts, and the inferences which they create, clearly bring this case within the "sudden onset" rule, thus dispensing with any necessity of a hypothetical question to elicit an expert opinion that the accident described caused the ensuing injury. That plaintiff would have avoided injury by a slip or a fall if she...

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