Shover v. Iowa Lutheran Hospital

• Citation: 107 N.W.2d 85,252 Iowa 706
• Decision Date: 11 January 1961
• Docket Number: No. 50106,50106
• Parties: Lillian SHOVER, Appellee, v. IOWA LUTHERAN HOSPITAL, Appellant.
• Court: Iowa Supreme Court

Page 85

107 N.W.2d 85

252 Iowa 706

Lillian SHOVER, Appellee, v. IOWA LUTHERAN HOSPITAL, Appellant.

No. 50106.

Supreme Court of Iowa.

Jan. 11, 1961.

John Paul Jones and W. C. Hoffmann, Des Moines, for appellant.

Charles J. Cardamon, and Lex Hawkins, Des Moines, for appellee.

GARFIELD, Chief Justice.

About 12:30 a. m. on April 29, 1956, plaintiff, then a bed patient in defendant hospital, fell to the floor in a hallway between a rest room and the room occupied by her. She was unattended by a nurse or other aide when she fell. She alleges she was seriously injured about her back and legs, necessitating two operations for a herniated intervertebral disc and a cordotomy. Also that the fall was caused by defendant's negligence in not following the directions of the attending physician for confinement of plaintiff to bed and in permitting her, unattended, to leave her bed and walk to and from the rest room. Trial resulted in judgment on jury verdict for plaintiff of $74,051 from which defendant has appealed.

Plaintiff entered defendant hospital as a patient on April 24, 1956, for nervous and bladder trouble. Her doctor told one of defendant's nurses she was to stay in bed but he could not say whether he so informed plaintiff. Plaintiff testified neither her doctor nor any hospital employee ever told her she could not get out of bed. The day she was admitted to the hospital a catheter was inserted in her and remained so inserted until April 28, between 10 a. m. and 1 p. m., when it was removed. From the time of her admission different sedatives were administered to plaintiff. She was also given shots of paraldehyde, a powerful hypnotic drug, commencing about noon on April 27. This drug was injected at 1 and 10 a. m. and 6:45 and 10:35 p. m. on April 28. These shots left plaintiff 'groggy.' Paraldehyde is apt to produce a dizziness and faintness.

At 11:30 p. m. on April 28 plaintiff urinated in a bed pan. According to Marilyn Reese and Shirley Rexroat, nurses who then attended her, plaintiff asked if she could get up to go to the bathroom but was told to stay in bed and a bed pan would be given her. Plaintiff said she did not remember such a conversation and, as stated, denied she was refused permission to go to the bathroom. According to plaintiff she awoke about 12:30 that night with a 'bad' urge to urinate and thought she would feel better if she went to the bathroom.

Plaintiff testified she signaled for a nurse with the light above her door and nurse's aide Fern Pontius came to her room, plaintiff asked if she could go to the bathroom, the aide said she would find out, left the room, returned, granted plaintiff's request, handed her her slippers and housecoat and soon left, plaintiff went to the bathroom unattended, in returning to her room she suddenly became dizzy, fell full length on her right side, twisting her back and striking her head, hip and leg. Nurses Reese and Rexroat soon got there, helped her to her feet and bed. Miss Reese, from the nurses' desk in the hall, saw plaintiff fall and said she slumped slowly to the floor 'like you would if you were heavily sedated.'

Fern Pontius denied she attended plaintiff shortly before her fall or gave her permission to use the bathroom. There is substantial evidence the hospital record for the night in question was altered by an employee of defendant, probably Marilyn Reese, to show plaintiff went to the rest room without permission when it originally stated she went with permission.

This is a sufficient indication of the evidence at this point. Other facts will be mentioned later.

I. Defendant first contends it was entitled to a directed verdict upon two grounds. The first is alleged lack of competent evidence of the standard of care required of defendant. Upon this phase of the appeal of course we must view the evidence in the light most favorable to plaintiff.

The trial court instructed the jury it was defendant's duty to give plaintiff such reasonable case and attention as it knew, or in the exercise of reasonable care should have known, her condition required. This duty is measured by the degree of care, skill and diligence customarily exercised by hospitals generally in the community. Also that defendant was not an insurer of plaintiff's safety and was not required to guard against that which a reasonable person under the circumstances would not anticipate.

Since no objection was taken to this instruction it stands as the law of the case. Mallinger v. Brussow, 251 Iowa ----, 105 N.W.2d 626, 630, and citation. In any event defendant asserts the instruction is correct. It is evidently patterned after 41 C.J.S. Hospitals § 8c(3), pp. 349-350, which defendant cites.

We think there is substantial evidence of this standard of care required of defendant and it was not entitled to a directed verdict on the ground of lack thereof. Its night supervisor testified it was the customary practice at the time and place in question not to let patients go to the rest room if the doctor's orders were to the contrary. As stated, there is testimony plaintiff's doctor gave defendant orders she was to stay in bed. Such directions would seem specially applicable to times when frequent shots of a powerful hypnotic drug were given and plaintiff had not left her bed for about four and a half days. While it is not conclusive, evidence of what is usual and customary is generally admissible on the issue of negligence. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167, 173, and citations. The cited decision fully supports our conclusion.

II. Defendant argues it was also entitled to a directed verdict on the ground of lack of evidence that plaintiff's condition was causally related to her fall. Dr. Hughs, an osteopathic physician who treated plaintiff commencing June 4, 1956, testified, in answer to a hypothetical question, there was such causal relationship. He first answered he had an opinion on the matter. There is also medical testimony from a qualified expert that such a fall could cause a herniated intervertebral disc. And plaintiff testified she had no previous serious injury to her back and none between the time of her fall and her seeing Dr. Hughs. Defendant's principal argument on this point is that Dr. Hughs was not shown qualified to express the opinion he did because of his claimed lack of familiarity with injuries like the alleged injury here.

It is doubtful defendant made timely objection upon the trial to Dr. Hughs' testimony on the ground now urged. Although the objection did assert there was no proper foundation for the witness to answer the question, this seems not to have been based upon his lack of qualifications. Further, Dr. Hughs, although directed by plaintiff's counsel to answer 'yes' or 'no' to the question whether he had an opinion regarding causal connection, said 'Yes I think there would be a causal relationship in my opinion.' Plaintiff's counsel again called for a 'yes' or 'no' answer and again the witness said 'yes.' Not until he was asked 'What is that opinion?' was the objection above referred to interposed by defendant.

In any event we think Dr. Hughs was sufficiently qualified to express the opinion he said he had. What defendant's argument amounts to is that only a doctor who is a specialist in treating injuries to the spine is qualified to express such an opinion. It is not required that a physician be a specialist in the particular field in order to express such an opinion. Ward v. Sears, 247 Iowa 1231, 1239, 78 N.W.2d 545, 549, and citations; Eggerment v. Central Surety & Insurance Corp., 238 Iowa 28, 32, 24 N.W.2d 809, 810-811. See also Lowman v. Kuecker, 246 Iowa 1227, 71 N.W.2d 586, 52 A.L.R.2d 1380; 20 Am.Jur., Evidence, section 865.

An annotation, 54 A.L.R. 860, 861, states: '* * * by the great weight of authority, a physician or surgeon is not incompetent to testify, as an expert, merely because he is not a specialist in the particular branch of his profession involved in the case; although this fact may be considered as affecting the weight of his testimony.'

Section 150.4, Code 1958, I.C.A., requires every applicant for a license to practice osteopathy to be a graduate of an approved college of osteopathy. Section 150.6 provides the subjects which must be studied at such colleges. They include anatomy, diagnosis, surgery (including orthopedic), and neurology. Since Dr. Hughs was duly licensed he was evidently a graduate of such a college. He testified that when he advised plaintiff to see Dr. Bakody, a neurosurgeon, on August 8 he suspicioned she had a disc herniation. According to Dr. Bakody, this proved to be correct. The fact Dr. Hughs referred plaintiff to Dr. Bakody for examination and surgery does not mean the former was not qualified to express an opinion as to the causal connection between the fall and plaintiff's condition.

III. Paragraph 5 of plaintiff's petition alleges defendant's negligence was a proximate cause of plaintiff's fall and injury and plaintiff was free from any negligence contributing thereto. Paragraph 5 of defendant's answer denies these allegations 'and further by way of affirmative defense alleges plaintiff was negligent in willfully failing and refusing to obey the instructions given by her physician and employees of the hospital to remain in bed and plaintiff's injury, if any, was proximately caused by her negligent failure in such respect and her willful disobedience thereto.'

In stating the issues the instructions to the jury summarize these allegations of defendant's answer but are otherwise silent with respect thereto. Defendant assigns error in the court's failure to instruct upon this so-called affirmative defense. Many authorities are cited for the proposition that ordinarily the jury must be instructed upon an issue which is pleaded and supported by evidence. There can be no doubt this is the rule.

We think failure to instruct upon this so-called...