Starnes v. Charlotte-Mecklenburg Hospital Authority

• Citation: 221 S.E.2d 733,28 N.C.App. 418
• Decision Date: 04 February 1976
• Docket Number: No. 7526SC416,CHARLOTTE-MECKLENBURG,7526SC416
• Court: Court of Appeal of North Carolina (US)
• Parties: William Mark STARNES, minor, by his next friend, W. D. Starnes, v.HOSPITAL AUTHORITY et al.

Page 733

221 S.E.2d 733

28 N.C.App. 418

William Mark STARNES, minor, by his next friend, W. D. Starnes, v. CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY et al.

No. 7526SC416.

Court of Appeals of North Carolina.

Feb. 4, 1976.

John D. Warren, Charlotte, for plaintiff.

Boyle, Alexander & Hord by Richard H. Hicks, Jr., Charlotte, for defendants, Charlotte-Mecklenburg Hospital Authority and J. Johnson.

Jones, Hewson & Woolard by H. C. Hewson, Charlotte, for defendant, Dr. James P. Hamilton.

BROCK, Chief Judge.

When the defendant moves for a directed verdict after the presentation of plaintiff's evidence, the question presented for the court is whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient for submission to the jury. Sink v. Sink, 11 N.C.App. 549, 181 S.E.2d 721 (1971). Thus our sole task on review is to determine whether the trial judge properly decided this question with respect to each of the three defendants.

Defendant Hospital

In open court the parties agreed to the following stipulations: (1) that defendant Hospital is a non-profit institution to which the doctrine of charitable immunity applies; and (2) that plaintiff's claim is governed by North Carolina law prior to the decision of Rabon v. Hospital, 269 N.C. 1, 152 S.E.2d 485 (1967), in which our Supreme Court abolished the doctrine of charitable immunity. Thus we are bound by Pre-Rabon law and the doctrine of charitable immunity in our determination of whether a directed verdict was properly entered in favor of defendant Hospital.

Plaintiff's principal claim against the Hospital is based on the Hospital's duty 'to furnish standard equipment and to make reasonable inspection and remedy any defects discoverable by such inspection.' Payne v. Garvey, 264 N.C. 593, 142 S.E.2d 159 (1965). While this form of corporate or administrative negligence has never been affirmatively adopted in North Carolina, '(d)ecided cases indicate that the present state of the law in North Carolina is as follows: A patient, paying or nonpaying, who is injured by the negligence of an employee of a charitable hospital may recover damages from it only if it was negligent in the selection or retention of such employee (citations omitted), Or perhaps if it provided defective equipment or supplies (citation omitted).' (emphasis added). Rabon v. Hospital, supra. We are convinced that the duty to provide safe and proper equipment is analogous to and equally compelling as the long-standing requirement that a charitable institution exercise due care in the selection and retention of its employees. Williams v. Hospital, 237 N.C. 387, 75 S.E.2d 303 (1953). However, even if we recognize that the defendant Hospital can be held liable for injuries resulting from the use of defective equipment, plaintiff's evidence is insufficient to require the submission of this issue to the jury.

Plaintiff's evidence tends to show that the Hospital used hot water bottles to warm infant patients for surgery; that at the time of the operation a better, more controllable, and safer heating device--a K-thermal blanket--was available on the market and used by two other hospitals in Charlotte; and that according to a pediatric surgeon who testified as an expert witness for plaintiff, it was 'bad medical practice' to use the hot water bottle method instead of the K-thermal blanket for the type of operation and patient involved in this case. Evidence that the K-therm device is 'better' or 'safer' does not prove that the hot water bottle was defective or unsafe. ' (The hospital) is not required to furnish the latest or best appliances, or to incorporate in existing equipment the latest inventions or improvements even though such devices may make the equipment safer to use. An appliance is not defective by reason of the failure to have incorporated therein the latest improvement or invention developed for its use.' Emory Univ. v. Porter, 103 Ga.App. 752, 120 S.E.2d 668 (1961). At most, the hospital is required to furnish equipment which is reasonably suited for the purposes for which it is intended. Here, the injury resulted not from the defective nature of the hot water bottle, but from the manner in which it was prepared and applied. There is no evidence that the hot water bottle was defective or that it was not reasonably suited to warm infant patients in surgery. It had been used in the past with sufficient success to gain acceptance as a standard procedure. Had the hot water bottle been prepared at the proper temperature, the evidence suggests that plaintiff would not have been injured. In conclusion we hold that plaintiff's evidence is insufficient to withstand defendant Hospital's motion for directed verdict on the issue of whether the Hospital was negligent in using the hot water bottle method instead of the K-thermal blanket.

Plaintiff also attempted to prove that defendant Hospital negligently hired and retained Dr. Montgomery, the director of the anesthesiology department at the time of plaintiff's operation, and Mr. Bondranko, the director of the Hospital's anesthesiology school where Miss Johnson, the plaintiff's anesthetist during the operation and a party in this case, received her training. There is absolutely no evidence to support this theory of liability. Although it is apparent that neither the anesthesiology department nor Hospital training program provided specific instruction on the preparation and use of hot water bottles, there is nothing in the evidence which suggests that these omissions amount to a breach of the duty of care imposed upon Dr. Montgomery and Mr. Bondranko in their respective capacities.

Plaintiff attempted to prove 'corporate' or 'administrative' negligence on the part of defendant Hospital for publishing a procedure manual which recommended 120 as the proper temperature for hot water bottles. Plaintiff's evidence tends to show that the maximum acceptable temperature of a hot water bottle to warm an infant patient during surgery is 105 and that 120 water in the bottle would burn the patient. However, there is no indication that the prescribed temperature in the manual was a contributing factor to plaintiff's injury or that the circulating nurse relied upon this information in preparing the hot water bottle used in plaintiff's operation. The testimony of Nurse Jordan, the person who prepared the bottle, contains no reference to the...