Sepaugh v. Methodist Hospital

• Citation: 202 S.W.2d 985
• Parties: SEPAUGH v. METHODIST HOSPITAL.
• Decision Date: 29 November 1946
• Court: Supreme Court of Tennessee

202 S.W.2d 985

SEPAUGH v. METHODIST HOSPITAL.

Court of Appeals of Tennessee, en Banc.

November 29, 1946.

Rehearing Denied January 22, 1947.

Certiorari Denied by Supreme Court June 6, 1947.

Rehearing Denied by Supreme Court June 26, 1947.

Appeal in Error from Circuit Court, Shelby County; Harry Adams, Judge.

Action by Beatrice Sepaugh against the Methodist Hospital to recover damages allegedly caused by negligence of an interne. Judgment for defendant and plaintiff appeals in error.

Reversed and remanded.

Graham Moore, of Memphis, for plaintiff in error.

Millsaps Fitzhugh, of Memphis, for defendant in error.

HALE, Judge.

Mrs. Sepaugh sued the Hospital to recover damages alleged to have been caused by the negligence of an interne-employee of the Hospital in the administration of a hypodermoclysis. At the close of her proof her suit was dismissed on defendant's motion for peremptory instructions. She then moved for a new trial which was denied. The present appeal has resulted. She has assigned errors which may be summarized as asserting the trial judge improperly excluded certain material evidence, and would not permit the reading of medical works to the jury, and that, in any event, there was sufficient evidence to require the submission of the case to the jury.

As we understand it, a hypodermoclysis is administered by the injection of needles through the skin and then through connecting tubes permitting the flow of the desired fluid into the soft tissues of the body.

The gist of the negligence averred in the declaration is (a) the skin was not sterilized at the place the puncture was made, and (b) the needle was improperly inserted and permitted to remain too long in this spot.

Mrs. Sepaugh testified she entered the Hospital in June, 1942, as a pay patient and underwent a serious abdominal operation on June 16th at the hands of her surgeon, Dr. Coors; that late in the afternoon of the next day the hypodermoclysis was (on order of her doctor) administered by an interne, later identified as Dr. Lunceford, who was in the pay of the Hospital; that the injection of the needle into her right leg was made without rubbing anything on her skin and without using any gauze between the needle and the flesh; that this injection caused much pain of which complaint was made to this interne who told her to stand it as it was for her own good and he then told her graduate nurse to watch it; that she continued to suffer much pain and her nurse then called a nurse employed by the Hospital who looked at her leg and then went and brought back the interne; that some 40 to 45 minutes elapsed from the starting of the flow until the return of the interne, during this time the area around the needle raised up a little. "I call it a knot, like if you blow up a bag or a balloon", and the interne then removed the needle and administered a hypodermoclysis in her left leg which later was without undue pain or untoward results; that the place on her right leg continued to hurt and on the following morning was swollen and discolored and had a blister about the size of a silver dollar; that she continued to suffer from this condition up to her discharge from the Hospital on June 28th, when the place "had broken and was all red and swollen up"; that she thereafter went to Dr. Coor's clinic and he performed a local operation on her leg by taking out the bad flesh; that the place was infected and when it was opened by Dr. Coors the pus ran down her leg; that this continued to cause her great pain and suffering and resulted in disabilities not necessary to be further noticed.

By the Record Librarian of the hospital (who has charge of such records) the plaintiff offered to prove a record made in the regular course of business by Dr. Kuykendall (sometimes called "Kirkendale" in the record) who was the Historian of the Hospital, relating to plaintiff's condition. Under the heading "Extremities" is this entry: "On the medial side of the right thigh, there is a vesicle about the size of a silver dollar. It is very hyperemic at the edge."

Defendant objected to this record on the ground there had been no foundation laid for its introduction. The objection was sustained. This was error. We are not presented with a case involving third parties and the authorities relating thereto are not relevant. This is a suit against a defendant whose records are sought to be placed in evidence. In Continental Nat. Bank v. First Nat. Bank, 108 Tenn. 374, at pages 380, 381, 68 S.W. 497, 499, it is said:

"It is said it was error to introduce the books of the bank in evidence. They were produced and identified by the cashier. It is said the defendants should have gone further, and shown by the party who made the entries that they were correct.

"The books were introduced to show the state of accounts between the Nashville Bank and Duncan, Gaines and Morrow; the object being to show by the course of dealing between the bank and these parties that the bank was treating and dealing with them as solvent, reliable customers.

"It has been held that where it becomes material either for or against a corporation, and as against a stranger or as between two strangers, to prove what was done by the bank, its books and records are admissible in evidence, and they are the best evidence. 6 Thomp. Corporations, § 7734.

"We think it not necessary that the book-keeper who made the entries should be examined as to their correctness.

"At most, he could only testify that the entries made by him are true entries of transactions reported to him by others. In other words, he could only testify that he wrote down what others told him. The court knows, as a matter of common information, that there are many persons in the employ of banks, and each has his different department, and each transaction passes through the hands of several—it may be, of many—persons. We take a deposit, for instance. It goes into the hands of the receiving teller, thence into the hands of a journal clerk, thence to the individual book-keeper, or such other officials as perform the functions of these officers. When it reaches the hands of the bookkeeper, who makes the final entry, which stands as the true statement between the bank and depositor, it has gone through the hands of a dozen parties, perhaps; and the last party only records what comes to him through so many hands, and knows nothing, it may be, of the actual transaction. It would seem that the cashier, whose function it is to overlook all transactions at the counter and over the books, and test each transaction through all its stages, should be the person most competent to produce the books and vouch for their accuracy."

To the same effect see Burns v. City of Nashville, 142 Tenn. 541, at pages 610, 611, 221 S.W. 828, and Cook & Co. v. Seaton, 6 Tenn.App. 81, at page 85 et seq.

In Jones' Commentaries on Evidence, 2d Ed. par. 992 at pages 1821, 1822, it is said: "The entries in account-books, like other admissions, are evidence against the party making them; and, of course, although not made by the party sought to be charged in person, such entries are admissible against him if made by some servant or agent authorized to make such entries on his behalf. They are admissible irrespective of the name by which the book may go or pass, or the manner in which it is kept. The reason is that such entries are not admissible merely because they are `book entries' but because they are statements in writing which are binding upon the party responsible for their inscription whether the entry is in his own writing or that of the person he has authorized in that behalf."

Under these authorities we think the record in question was admissible in evidence.

There was a former suit in which Dr. Murray Tate testified for the plaintiff. He afterwards died and his evidence was offered in the present suit. A great part of his testimony was excluded under defendant's objection, to which error is assigned by plaintiff. He said he attended Mrs. Sepaugh who "had the results of a puncture by a needle in the thigh," and that she was suffering considerably. He was then asked a hypothetical question in which he was asked to assume, inter alia, that the fluid flowing into plaintiff's leg caused "severe pain, similar to the pain resulting from scalding water; that the burning sensation continued until the needle" was withdrawn, etc. There is no testimony to this effect. A hypothetical question based on nonexistent "facts" could have no value. Fisher v. Travelers' Ins. Co., 124 Tenn. 450, 138 S.W. 316, Ann. Cas.1912D, 1246. This part of the testimony was properly excluded although the learned trial judge seems to have put it on another basis. The witness then stated that if the solution had been pure and the equipment free of contamination and the technique of the interne had been proper there would not have been any injury. We think this was admissible. The fact that Dr. Tate had been excluded from the Medical Association, but not debarred from practice, and his explanation therefor would go to the weight—not the admissibility —of his testimony. Then, too, there was some confusion in his testimony as to his understanding of a hypodermoclysis. On his direct examination (excluded by the court) the following occurred:

"Q. What is a hypodermoclysis * * *? A. Hypodermoclysis, that is the injection of some medical material through the vein into the body.

"Q. Now, what is intravenous—you say hypodermoclysis goes into the vein? A. No.

"Q. Where does it go? A. The hypodermoclysis goes into some portion of the body, into the flesh.

On cross-examination he seems to recognize the difference between a hypodermoclysis and an intravenous injection, but at the conclusion of this cross-examination he testified: "Q. All right, Doctor. My point is this, that your answer to the hypothetical question had to do, and giving your opinion as to the cause of this injury had to do with an...