State, for Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, Inc.

• Decision Date: 24 January 1940
• Docket Number: 1.
• Parties: STATE, for Use of KALIVES et al., v. BALTIMORE EYE, EAR AND THROAT HOSPITAL, Inc., et al.
• Court: Maryland Court of Appeals

10 A.2d 612

177 Md. 517

STATE, for Use of KALIVES et al., v. BALTIMORE EYE, EAR AND THROAT HOSPITAL, Inc., et al.

No. 1.

Court of Appeals of Maryland

January 24, 1940

Appeal from Superior Court of Baltimore City; J. Abner Sayler Judge.

Suit by the State of Maryland, for the use of Nitza E. Kalives widow, and her infant son, John Kalives, by his next friend Nitza E. Kalives, against the Baltimore Eye, Ear and Throat Hospital, Incorporated, and others, for wrongful death allegedly resulting from defendants' malpractice. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Charles H. Medders, of Baltimore, for appellants.

William D. Macmillan and James U. Dennis, both of Baltimore (Harold Tschudi, of Baltimore, on the brief), for appellees.

Argued before BOND, C.J., and SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

MITCHELL Judge.

The appeal in this case is from a judgment on a directed verdict in favor of the appellees, defendants below, in a suit for wrongful death based upon alleged negligence and malpractice on the part of the defendants.

The declaration, as amended, alleges that the equitable plaintiffs, respectively, are the widow and son of Angelo Kalives, late of Baltimore City, who on July 16, 1937, arranged with Dr. Lee Cohen, a practicing physician of said city, for the removal of his tonsils and the turbinated bones of his nose; that both patient and his family were assured that the contemplated operation was free from danger of any kind and that the patient would be able after the operation to return to his home in two or three days, a perfectly well man. That upon the advice of the doctor, he entered the Baltimore Eye, Ear and Throat Hospital at 9:45 A. M. where he was received, forthwith given anesthetics, and otherwise prepared for the operation which was performed between the hours of 2 and 5 o'clock P. M. on the same day he entered the institution. It is then set forth that at the time fixed for the operation Dr. Cohen, Dr. Phillip Kaufman, a resident physician at the hospital, Margaret M. Walker, an anesthetist, and Rachel Yingling, an instrument nurse, who together with said hospital, a body corporate, comprise the defendants herein, caused the patient to be taken to the operating room of said hospital, and there performed four major surgical operations on his nose and three on his throat; that four stitches were put in the nose and five were put in the throat membrane; that they packed the nose so tightly with compressed cotton that air could not pass in or out therefrom; that ether was administered to said patient during the course of the operation, and that an ether tube was left untied in the mouth of the patient when he was returned to his room in the hospital in an unconscious and helpless condition. In this connection it is alleged that it was a duty that Dr. Cohen owed to said patient to see that the tube in his mouth could do no harm to him, and that the said Dr. Cohen did not use due care; that Dr. Kaufman, a resident physician of said hospital, assisted at said operation and it was his duty to see that the patient was kept free from danger and to tie the ether tube in his mouth, which duty he did not perform and that he did not use due care; that Margaret M. Walker, the anesthetist and assistant in said operation, allowed the ether tube to remain untied in the mouth of the patient and did not return it to the instrument nurse, whereby she also failed to use due care; and that Rachel Yingling, the instrument nurse, assisted in said operation and through her failure to recover the ether tube from the anesthetist, it was permitted to remain in the mouth of the patient untied when he was sent to his room, she also failing to use due care.

For the reasons above stated, it is thereupon alleged that Dr. Cohen and the remaining defendants, as agents, servants, and employees of the said Cohen and of the said hospital, suffered and permitted said either tube then and there in the throat and mouth of the patient to become out of place and position in which it was used to control the tongue, and 'allowed the blood, serum and mucous to run down into the windpipe, clot, and stop the air from passing to the lungs and killed the said Angelo Kalives'. It being further alleged that the patient was allowed to remain in a dark room unattended; that at 7:30 P. M. he was found struggling and gasping for breath, the tube being then removed from his mouth, and that he died less than two hours later.

To the aforegoing declaration the general issue plea was interposed on behalf of all of the several defendants, and in addition thereto, the corporate defendant filed a special plea setting forth its incorporation as an eleemosynary institution organized solely for charitable purposes; its property and assets of every description as being held in trust for such purposes; and that it was not being operated for the profit of any stockholder or other person. As to the latter plea a replication was filed denying that the corporate defendant was an eleemosynary institution with respect to the equitable plaintiffs, and submitting that the deceased was a pay patient in said defendant hospital. Issue was joined on the remaining pleas.

During the trial of the case four exceptions were reserved by the equitable plaintiffs, the first three being directed to rulings upon evidence by the trial court, and the last to its rulings upon the several prayers submitted by the defendants at the close of the plaintiff's case for a directed verdict in their favor, upon the ground that no evidence legally sufficient to entitle the equitable plaintiffs to recover had been offered.

Considering the above exceptions in their order, we find the record as to the first exception somewhat confusing. Mrs. Kalives, the widow, upon being called as a witness by her counsel, was permitted without objection to testify to the effect that shortly before the operation was performed she was assured by Dr. Cohen that there was 'no danger at all' to be anticipated in its performance, and a receipt for $80 paid the doctor for or on account of his services was admitted. She then testified that after the operation was performed, at about 5 o'clock in the afternoon, she went to her husband's room in the hospital, found him sleeping, with 'something silver, round, and it had a round hole in the middle', in his mouth; that she was told by the doctor: 'Don't worry, he is all right'. * * * 'He is fine, you go home to rest now.' She was then asked: 'Was the tube tied in his throat--in his mouth?' A. 'No'. The record shows that no objection was made to the question until after it had been answered by the witness, and while counsel for the appellees in their brief suggest that it was answered before they had time in which to object, no such reason is shown by the record, and no motion was made that the answer be stricken out. Jones Evidence, 3d Ed. sec. 893.

Then appears in the record the following excerpt. 'The Court Sustain the objection as to all of the defendants except Dr. Cohen, * * * the private arrangement her husband had with Dr. Cohen, * * * but that testimony would not be admissible against the hospital, the assistant surgeon, and the nurse and the anesthetist.' From the aforegoing remark it is difficult to discern what the trial court had in mind at the time the ruling was made. However, the court appears to have sustained the objection as to all defendants, other than Dr. Cohen, although it was argued by the appellees that the objection should have been sustained as to all of the defendants; (a) because the question was of a technical nature and submitted to the witness an inquiry as to which she was not qualified to answer; and (b) because there had been no prior evidence offered tending to show that the tube referred to in the question should have been tied. In our opinion, neither objection was well founded. The witness was not asked to express any opinion as to the effect an untied tube in the throat or mouth of the patient would have upon him. She had previously detailed what she had actually seen in her husband's mouth, and the description she gave of what she had seen would indicate that it was what her counsel in propounding the question termed to be a 'tube'. Whether what she saw was tied or loose in her husband's mouth was a question of fact, and we can see no plausible reason why, under the circumstances to which she had previously testified, the question was not one properly submitted to her. Had the question been followed up by the testimony of technical or expert witnesses tending to show the efficacy of tying the tube in the patient's mouth while he was under the influence of an anesthetic, the query whether the tube was or was not tied might have had an important bearing upon the final determination of the case. But as far as our examination goes, we find no testimony in the record tending to show what effect upon a patient would result from a failure to make a tube in his mouth stationary; and, assuming that there was error in the court's ruling upon the question, for the reasons stated it does not appear that the equitable plaintiffs were injured thereby. There must be injury as well as error to authorize a reversal. Pratt v. Johnson, 6 Md. 397; United Ry. & Electric v. Dean, 117 Md. 686, 702, 84 A. 75; Dettering v. Levy, 114 Md. 273, 279, 79 A. 476; Swindell Bros....