Stokes v. Leung, 651 S.W.2d 704

• Decision Date: 01 December 1982
• Citation: 651 S.W.2d 704
• Parties: William L. STOKES, Conservator of the Person and Estate of Mary Patricia Hall, Plaintiff-Appellant, v. Richard LEUNG, M.D., Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 704

651 S.W.2d 704

William L. STOKES, Conservator of the Person and Estate of Mary Patricia Hall, Plaintiff-Appellant, v. Richard LEUNG, M.D., Defendant-Appellee.

Court of Appeals of Tennessee,

Western Section, at Jackson.

Dec. 1, 1982.

Rehearing Denied Jan. 10, 1983.

Application for Permission to Appeal

Denied by Supreme Court

May 2, 1983.

On Petition for Rehearing Jan. 10, 1983.

James S. Cox, Memphis, for plaintiff-appellant.

John J. Thomason, Memphis, for defendant-appellee.

Frank J. Scanlon, Sr. Asst. Atty. Gen., Nashville, for State.

NEARN, Presiding Judge.

This is a medical malpractice case for injuries sustained by the plaintiff when she jumped from the window of her hospital room. Originally, Doctor's Hospital in Memphis was named as a defendant along with Dr. Leung, but on the morning of trial plaintiff voluntarily non-suited the hospital. At the close of plaintiff's proof against the doctor, the Trial Judge directed a verdict for the defendant, Dr. Leung. The plaintiff appeals that action of the Trial Judge and the defendant also raises issues on appeal in the event the action of the Trial Judge is not sustained by this Court.

An orderly opinion requires that before considering the matter of the directed verdict we first consider an issue raised by the defendant-appellee. The testimony of plaintiff's only expert medical witness was objected to by defendant, but such objection was overruled and the testimony admitted. Plaintiff's case therefore hinges on the correctness of that ruling since in medical malpractice cases, negligence and causation are ordinarily required to be proved by expert medical testimony. T.C.A. Sec. 29-26-115(b). See German vs. Nichopoulos, (1978 Tenn.App.W.S.) 577 S.W.2d 197.

Plaintiff offered the expert testimony of Dr. Benjamin Bursten, a non treating doctor who specialized in psychiatry. The defendant is a doctor who specializes in the field of internal medicine and cardiology. The objection was that Dr. Bursten was not qualified to give an opinion with respect to the standard of care and the departure therefrom in the medical field of the defendant. During the voir dire of Dr. Bursten he was questioned and answered as follows:

Q. If Dr. Leung is Board certified in internal medicine and cardiology, you are not in the same field, are you?

A. We are in the same broad field--that is, medicine and surgery. Of course, we hold the same license, but he has a different specialty from mine.

Q. But you are familiar with the standards of practice of psychiatry, is that correct?

A. I am familiar with really two things--the standards of practice in psychiatry and the standards of practice with regard to psychiatric patients in general medicine. This is essentially my job at U.T. is to teach the latter.

* * *

* * *

(continuing)

Q. (Mr. Cox)--Dr. Bursten, are you familiar with the standards of care and skill expected and required of a man who is an internal medicine man and cardiologist who is undertaking the care and treatment of a patient who has a psychiatric disorder and who is specifically suffering from a mental disorder? Are you familiar with those standards?

A. I teach that at the University.

THE COURT: Let me ask you this, Doctor: Is a cardiologist or internal medicine specialist held to the same degree of care as a psychiatrist in this field.

THE WITNESS: If he is going to treat a psychiatric condition, Your Honor, he is held to a minimal degree.

THE COURT: Do you know what that minimal degree is?

THE WITNESS: Yes I do.

In view of that testimony it appears to this Court that the objection must go more to the weight of the evidence rather than its admissibility. In addition, it is the law of this state that the Trial Judge has wide discretion in the matter of the qualifications of expert witnesses. See McCay vs. Mitchell, (1970 W.S.) 62 Tenn.App. 424, 463 S.W.2d 710. We see no error in the exercise of that discretion in this case. Appellee's issue is without merit.

Now, having determined that the testimony was properly before the Court, we must ascertain whether such testimony and the evidence as a whole, considered at the time the motion for directed verdict was made, present any material facts upon which liability of the defendant could lawfully be predicated. In making this determination we must examine all the evidence presented on the issue, take the strongest legitimate view of the proof in favor of the complaining party, discard all countervailing evidence, resolve all disputes as to any material evidence or doubt as to conclusions to be drawn from the evidence all in favor of the complaining party. St. Martin vs. Doty, (1972 Tenn.App.W.S.) 493 S.W.2d 95; Poole vs. First National Bank of Smyrna, (1946 M.S.) 29 Tenn.App. 327, 196 S.W.2d 563.

Viewing the proof in the manner required, it shows that Mary Hall was brought to the Doctor's Hospital in Memphis in the late afternoon of February 25, 1977. She was first seen in the emergency room by a Dr. Dunn who noted that the patient appeared to be suffering from "acute depression" and ordered numerous tests and instructed that suicide precautions be instituted by the hospital. Also, the medical records contain these notations regarding the patient made by the admitting physician:

Has been unusually tired and cloudy in her thinking over past few days; Jimmy Carter, President of U.S.A., told her to come to the hospital to see what's wrong. Has been depressed since the age of thirteen. Has heard voices and had visual hallucinations over past few days. She believes people are out to get her and some threatened her. Has been taking Elavil for depression.

Alert. Oriented only to person. Cranial nerves 2-12 intact. Cerebellum normal limits. Sens normal limits. Motor normal limits. Mental status: inappropriate affect, thought processes underproductive. Hears voices, visual hallucinations, paranoid with people.

The patient was removed to the second floor of the hospital and assigned to Dr. Leung, the defendant. Dr. Leung was called to testify by the plaintiff. He testified as to his initial impression as contained in the hospital records which were:

Twenty year old white female. Mentally slightly confused, alleges that running, fell down and hit her head and had some bruises on leg. L.M.D.---? President of U.S.A. called her to go to the hospital, therefore he was worried about her. Relates been taking Hydrodiurill two a day and Elavil---not taken since four days ago.---Depression neurosis, hypertension.

Dr. Leung then started Mrs. Hall on a drug similar to the one she said she had been taking and ordered that she be seen by Dr. Rutschman, a psychiatrist. ¹ Dr. Leung again saw plaintiff the next morning, testified that at that time the patient complained to him that noises in the hall were very disturbing to her. Then, the following notation was placed on the chart by Dr. Leung: "Keep quiet for her in room; close door all the time. Leave intercom open to detect noise in room; suicide precaution; start Sinequan 25 p.o. then q.i.d."

At 2:10 p.m. on the afternoon of February 26, plaintiff, Mary Hall, jumped out of the window in her room and severely injured herself.

During the period between plaintiff's arrival on the second floor and her leap on the 26th, the nurses' records reveal that Ms. Hall cried and heard voices talking to her all evening on February 25. At one point Ms. Hall dumped a pitcher of water over her head "so God will cleanse her of her sins." The hallucinations went on all night and Ms. Hall feared someone was going to shoot her. On February 26th Ms. Hall was found crying and "waiting for the president" to come see her. Her condition improved around noon and she even came to the nurses station to discuss a career as a lab technician. However, at 2:00 p.m. Ms. Hall locked herself in her bathroom and when the nurses eventually opened the bathroom door, Ms. Hall was crying in the floor and told the nurses she was afraid.

In an effort to establish a causal connection between the acts of the defendant and the injuries suffered by the plaintiff, Dr. Bursten testified for the plaintiff in part as follows:

Q. Do you have an opinion as to what was the direct, proximate cause of Mary Patricia Hall jumping from the window at the Doctors Hospital on February 27, 1977?

A. Yes.

Q. Tell the Court and jury what your opinion is.

A. I think there were three proximate causes. Physically she was an acutely disturbed psychotic person with all of the fears that people are going to harm her, and she didn't know where to turn.

Secondly, she was given an incorrect medication, and was not given a correct medication to calm the fears.

Thirdly, she was put in an insecure room out of the sight of the people who might have prevented her from doing what she did.

MR. COX: You may cross-examine.

There can be more than one proximate cause of an injury. Whitehurst vs. Howell, (1936 M.S.) 20 Tenn.App. 314, 98 S.W.2d 1071. Liability of a defendant may be established if the defendant's act or failure to act is a proximate cause. Payne vs. Woodward, (1949) 190 Tenn. 32, 227 S.W.2d 47. Therefore, if the plaintiff's proof tends to show the defendant responsible for any one or more of the three alleged proximate causes an issue for jury determination was presented.

It is not and could not be contended that the defendant was responsible for plaintiff's psychotic condition. Therefore, we are left with the defendant's orders regarding medication and his orders regarding closing the door to plaintiff's hospital room and leaving the intercom system open as possible proximate causes chargeable to defendant's conduct. We will first consider the matter of the door and the intercom.

We hold that when a hospital elects to accept a patient with psychiatric disorders and with orders that "suicide precautions" be taken, the prime responsibility to afford reasonably safe facilities and reasonable attendance to the patient's needs to...