Sexton v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 29 March 1982
• Docket Number: No. 81-242,81-242
• Citation: Sexton v. St. Paul Fire & Marine Ins. Co., 631 S.W.2d 270, 275 Ark. 361 (Ark. 1982)
• Court: Arkansas Supreme Court
• Parties: Martha C. SEXTON, Executrix of the Estate of Walter Allen Sexton, Deceased, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., Appellee.

Page 270

631 S.W.2d 270

275 Ark. 361

Martha C. SEXTON, Executrix of the Estate of Walter Allen Sexton, Deceased, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE CO., Appellee.

No. 81-242.

Supreme Court of Arkansas.

March 29, 1982.

Rehearing Denied May 3, 1982.

Wilson, Gunter & Walker, P. A. by Charles M. Walker, Hope, for appellant.

Atchley, Russell, Waldrop & Hlavinka by Victor Hlavinka, Texarkana, Tex., for appellee.

ADKISSON, Chief Justice.

The Nevada County Circuit Court granted a motion for a directed verdict in favor of appellee after finding that appellant had failed to meet the burden of proof for "medical injury" as required by Act 709 of 1979 (Ark.Stat.Ann. § 34-2613-2620 (Supp.1981) ). On appeal we affirm.

Appellant's husband, Walter Sexton, was admitted to the Nevada County Hospital on May 29, 1979, after being diagnosed as suffering from diabetes, generalized arteriosclerosis, and a kidney infection. He was 81 years old and was mentally confused during much of his stay in the hospital. The nurses' notes reflect that on May 31, he fell in the bathroom but was not seriously injured and that on June 2 he nearly fell and was put to bed. Nurses found him attempting to climb out of bed on numerous occasions. On June 2 one of the nurses called Sexton's doctor to ask if he would authorize a Posey vest. A Posey vest is a type of safety restraint that fits around a patient's chest and is tied under the bed to keep the patient from getting out of bed. The doctor authorized the restraint "as needed for safety" but allowed the nurses to make the final decision as to whether to use the vest. No Posey vest was given to Sexton, and on June 3 he fell again, fracturing his hip and shoulder. Sexton died several months later. His wife, as executrix of his estate, brought suit alleging that the hospital was negligent in failing to place the vest on her husband.

The trial court based the granting of the directed verdict for appellee on Ark.Stat.Ann. § 34-2614 (Supp.1981), which provides:

Burden of proof.-(A) In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and

(2) That the medical care provider failed to act in accordance with such standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred....

Appellant did not introduce any evidence of the degree of skill used by other hospitals in the same or similar locality as required by this statute.

Appellant correctly argues that this Act is only applicable to professional services. Ark.Stat.Ann. § 34-2613 (Supp.1981) provides:

(C) 'Medical injury or injury' means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

However, appellant incorrectly argues that the use of a Posey vest is not a professional service. Testimony revealed that only the doctor could authorize its use, although its actual placement on the patient was left to the discretion of the nurse.

A hospital is required to consider the patient's capacity to care for himself and to protect the patient from dangers created by his weakened condition. Providing a safe environment for patients is within the scope of the professional services by a hospital. Murillo v. Good Samaritan Hospital of Anaheim, 99 Cal.App.3d 50, 160 Cal.Rptr. 33 (1979).

Analogous are decisions holding that whether to raise bedrails involves the expert judgment of the health care provider and is, therefore, beyond the common knowledge of the jury and a matter as to which expert testimony is required. See Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A.2d 502 (1962); Mossman v. Albany Medical Center, 34 A.D.2d 263, 311 N.Y.S.2d 131 (1970).

Affirmed.

HICKMAN, PURTLE and HAYS, JJ., dissent.

HICKMAN, Justice.

The majority has given the statute in question a most liberal interpretation. It is my judgment that we should strictly construe the statute.

The facts are fairly set out by the majority and the question is whether Walter Sexton, an elderly man, suffered a "medical injury" when he fell out of bed fracturing his hip and shoulder. For at least two days prior to this time, the medical records indicated that he had been falling, was in danger, and needed special care and attention. A physician gave permission, if necessary, to put the patient in a posey vest for his protection. The nurse in charge failed to put him in that vest and the majority finds that her decision was a professional one. I seriously disagree with that judgment. It does not take any special knowledge or skill to know that in a case like this the patient needed restraint. It was a common sense judgment that any mature adult could have made. If there was a professional decision involved, it had already been made by the doctor. Expert testimony should not have been required of the plaintiff.

At issue here is what advantage is to be granted to a special segment of our society; in this particular case, a hospital. The Act in question places a burden on a plaintiff that does not exist in other negligence cases; that is, an expert witness must be called by the plaintiff to show the degree of skill ordinarily possessed by a hospital in the locality regarding the care of patients.

The majority bases its decision on cases from California and New York; those decisions in my judgment severely limit one's right to sue a hospital or member of the medical profession for any injury that occurs in the hospital. For example, in the case of Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A.2d 502 (1962), it was determined that it was a "professional" judgment whether to raise the bedrails on a bed. I would hardly call that a decision requiring special knowledge or skill.

The reason I would strictly construe this Act is because I consider such legislation to be in the same category as that in derogation of common law, or that of a special grant, privilege or immunity, or an exemption from taxation. In all of these instances we strictly...