Rosemont, Inc. v. Marshall

• Decision Date: 20 December 1985
• Citation: 481 So.2d 1126
• Parties: ROSEMONT, INC. v. William G. MARSHALL, as executor of the estate of Emma B. Marshall, Deceased. 84-554.
• Court: Alabama Supreme Court

Page 1126

481 So.2d 1126

ROSEMONT, INC. v. William G. MARSHALL, as executor of the estate of Emma B. Marshall, Deceased.

84-554.

Supreme Court of Alabama.

Dec. 20, 1985.

Rehearing Denied Jan. 10, 1986.

J. Connor Owens, Jr. of Owens, Latour & Simpson, Bay Minette, for appellant.

Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellee.

HOUSTON, Justice.

Rosemont, Inc., a skilled and intermediate care nursing facility, appeals from the judgment of the trial court rendered pursuant to a jury verdict in favor of the plaintiff, William G. Marshall, as executor of the estate of his deceased mother, Emma B. Marshall, in this action to recover damages for her wrongful death. We reverse the judgment of the trial court and remand.

Mrs. Emma Marshall was in her mid seventies. Earlier in life, she had worked as a licensed practical nurse (LPN). She had reared two sons and had been a widow for forty years. Her life, as are so many of even the best and brightest, was an exception to Browning's "geriatric utopia": "Grow old along with me! The best is yet to be, the last of life, for which the first was made."

Although she was relatively healthy, physically, Mrs. Marshall suffered from depression and senile dementia. She took an overdose of nonprescription drugs and was hospitalized. A neuro-psychiatrist recommended that she be placed in the psychiatric unit of a medical center; however, Mrs. Marshall objected, and her regular attending physician recommended that she be placed in a nursing home. The plaintiff visited several nursing homes, including Rosemont. He was assured by the person in charge of administrative affairs at Rosemont that it was the best nursing facility for his mother and that she would receive professional nursing care there.

Mrs. Marshall was admitted to Rosemont, at which time the administrator was aware that she was confused and could not care for herself. The records from Rosemont show that, at the time of her admission, Mrs. Marshall was discontented, depressed, suffering from loss of memory, and that she desired to live at home and had been hospitalized for the preceding twelve days. Hospital records (showing an overdose of medication, depression, senility, and suicidal tendencies, and her physician's notes showing that she was to be observed closely) were attached to Mrs. Marshall's medical history and admission examination materials at Rosemont. During the time Mrs. Marshall was in Rosemont, she occasionally managed to leave the building where she lived; ¹ the last time was only a few days prior to the final and fatal occasion. Although Mrs. Marshall was placed in a "posey" vest to prevent her from leaving, she was able to remove this restraint.

Rosemont was a one-story building from which there were five exits. Three of these exits had alarms on them so that when the door was opened from the inside, the alarms would sound. The front exit, and the exit by the south nursing station leading into a parking lot, did not have such alarms. No one was hired with the specific duty of watching these two exits. None of the doors were locked so as to prevent an exit from the building, and there were no fences surrounding the premises.

Mrs. Marshall's attending physician had indicated in his progress notes at Rosemont on April 26, 1982, that Mrs. Marshall needed total 24-hour nursing care. At trial, he explained what he meant by 24-hour nursing care:

"Q. Does that mean someone staying with her all the time or just under supervision?

"A. She was pretty much a Houdini. She could slip out of the vest restraints literally like a snake. As elderly and apparently weak as she was and they all do this, I'm not making exception to Mrs. Marshall, they can all slide out those restraints like they have been greased. And the only way you are going to keep them from doing it is to have somebody eyeball them twenty-four hours a day. That's what it amounts to."

On July 30, 1982, while a nurse was returning Mrs. Marshall's dinner tray to the dining room, she was left unobserved for approximately five minutes. During that period of time, and although her vest restraint had been in place, Mrs. Marshall managed to leave the building through one of the doors on which there was no alarm. She went across the street, down an embankment, fell and broke her right shoulder. Mrs. Marshall died at Rosemont on August 4, 1982. The forensic pathologist, who performed an autopsy the morning after her death, determined the cause of death to be blood clots in Mrs. Marshall's lungs which had originated from her broken shoulder.

Thereafter, the plaintiff filed a complaint in the Circuit Court of Baldwin County, alleging that Rosemont had negligently and/or wantonly caused or allowed Mrs. Marshall to be injured and that she died as a proximate consequence of her injuries. Rosemont appeals from the trial court's denial of its motion for a directed verdict on the negligence count. The trial court did not submit the wantonness count to the jury; however, the propriety of its determination in this respect is not before us.

Rosemont contends that this is a malpractice case requiring expert testimony. It argues that the plaintiff failed to establish the standard of care applicable to skilled and intermediate nursing care facilities and, therefore, failed to prove a prima facie case of negligence. We agree.

The Alabama Medical Liability Act (§§ 6-5-480 through 6-5-488, Code 1975) defines the term "hospital" as "Such institutions as are designated in § 22-21-21 as hospitals." The following is included within the definition of "hospital" in § 22-21-20: "Longterm care facilities such as, but not limited to, skilled nursing facilities, intermediate care facilities."

Rosemont is a skilled and intermediate care nursing facility and, therefore, a "hospital" under the Alabama Medical Liability Act.

Section 6-5-484(a), Code 1975, in pertinent part, reads:

"In the case of a hospital rendering services to a patient, the hospital must use that degree of care, skill and diligence used by hospitals generally in the community."

A hospital is not an insurer of the successful issue of treatment or service to a patient. § 6-5-484(b), Code 1975.

Mrs. Marshall was a "patient" and Rosemont is a "hospital" within the meaning of § 6-5-484, supra. Therefore, the plaintiff can prevail only if he established at trial that Rosemont, in rendering or failing to render services to his mother, did not use that degree of care, skill and diligence used by skilled and intermediate care nursing facilities generally in the community.

To establish a hospital's negligence under the Alabama Medical Liability Act, ordinarily, the plaintiff must offer expert medical testimony as to what is or what is not the proper practice, treatment, and procedure. In such a case, the lack of expert medical testimony results in a lack of proof which is essential to establish a plaintiff's case. Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969); Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So.2d 156 (Ala.1984).

An exception to the foregoing general rule has been recognized where the want of skill or lack of care is so apparent as to be within the comprehension of the average layman and thus requires only common knowledge and experience to understand it. Parrish v. Spink, supra; Tuscaloosa Orthopedic Appliance Co. v. Wyatt, supra. This exception has usually been applied under circumstances where the doctrine of res ipsa loquitur is applicable. (See Holt v. Godsil, 447 So.2d 191 (Ala.1984), wherein the Court recognized that the exception applies where a foreign instrumentality is found in the plaintiff's body following surgery, citing Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), and where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment, citing Parrish v. Spink, supra. Another exception has been recognized where the plaintiff introduces a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, Holt v. Godsil, supra, citing Zills v. Brown, 382 So.2d 528 (Ala.1980). ²

Neither of these exceptions is applicable in the present case. Our review of the record indicates that the plaintiff failed to establish, by expert testimony, what degree of care, skill, and diligence is used by skilled and intermediate care nursing facilities generally in the community in rendering treatment and services to a patient such as Mrs. Marshall. Therefore, the jury was without a standard against which to evaluate Rosemont's practices and procedures. In our view, the degree of care, skill, and diligence which should have been exercised by Rosemont in caring for a patient such as Mrs. Marshall, is not so apparent as to be within the comprehension of the average layman, requiring only a common knowledge and understanding.

Mrs. Marshall's family and attending physician sought to confine her to Rosemont for the purpose of treating her deteriorating mental and physical conditions. Obviously, the medication and restraints prescribed by her physician, and the measures undertaken by the officials and staff at Rosemont, in the end, were not successful in so confining her. The mere fact that these efforts were not successful does not...