Strubhart v. Perry Memorial Hosp. Trust Authority

• Decision Date: 14 February 1995
• Docket Number: No. 73929,73929
• Citation: 1995 OK 10,903 P.2d 263
• Parties: Kristi L. STRUBHART, Personal Representative of the Estate of Geoffrey B. Tearney, Deceased, Appellant, v. PERRY MEMORIAL HOSPITAL TRUST AUTHORITY, Appellee.
• Court: Oklahoma Supreme Court

Page 263

903 P.2d 263

1995 OK 10

Kristi L. STRUBHART, Personal Representative of the Estate

of Geoffrey B. Tearney, Deceased, Appellant, v. PERRY MEMORIAL HOSPITAL TRUST AUTHORITY, Appellee.

No. 73929.

Supreme Court of Oklahoma.

Feb. 14, 1995.

Partial Concurrence and Dissent by Justice Simms Changed

Feb. 23, 1995.

Rehearing Denied Sept. 20, 1995.

Certiorari to the Court of Appeals, Division 2 Appeal from the District Court of Noble County: Lowell Doggett, Trial Judge.

George D. Davis, Connie M. Bryan, McKinney, Stringer Webster, P.C., Oklahoma City, for appellant.

Page Dobson, Charles F. Alden III, Julie Trout Lombardi, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellee.

LAVENDER, Justice.

A jury verdict was returned in favor of appellant, Kristi L. Strubhart (hereafter plaintiff), personal representative of the estate of Geoffrey B. Tearney (Geoffrey), deceased and against appellee, Perry Memorial Hospital Trust Authority (hospital) for negligence in causing Geoffrey's death. We decide whether the trial judge erred in granting a new trial to the hospital upon plaintiff's refusal to accept a remittitur. We hold that, although the trial court erred in granting hospital's alternative motion for a remittitur, we cannot say the trial court abused his discretion in ordering a new trial. We also adopt the doctrine of independent corporate responsibility to the extent this doctrine imposes a duty of ordinary care on hospitals to ensure that: 1) only competent physicians are granted staff privileges, and 2) once staff privileges are granted to a physician the hospital takes reasonable steps to ensure patient safety when it knows or should know the staff physician has engaged in a pattern of incompetent behavior. This theory of liability will be available to plaintiff on remand and retrial.

PART I. FACTS AND PROCEDURAL HISTORY.

Gayla Tearney, mother of Geoffrey, was admitted to the hospital to give birth. Dr. Richard Seal (Dr. Seal), the attending physician, was the parents' private physician who had staff privileges at the hospital. It is undisputed that Dr. Seal was not an employee of the hospital. He only had staff privileges there, i.e. he was allowed to use the facility to treat his patients. He was, thus, an independent contractor in regard to his treatment of both Gayla and the infant Geoffrey.

Geoffrey was born about 1:30 a.m. after a difficult labor and traumatic delivery by forceps.

Dr. Seal stayed with the baby approximately one hour before placing the newborn in the hospital's nursery. Dr. Seal left the hospital about 3:00 a.m., leaving a third or fourth year medical student, a Sheila Kennedy, who the parties refer to as an extern medical student, in charge of Geoffrey. Nurse Jeanne Bowles, a hospital employee, was on duty in the nursery when the baby was brought there and had the immediate care of Geoffrey during the early morning hours, as Ms. Kennedy apparently had other duties to perform or spent her time in a van outside the hospital. Nurse Bowles testified she was concerned about the baby from the outset and that she had been informed by other hospital personnel about the traumatic delivery. ¹ Also looking after the baby was a nurses' aid who was given the responsibility by Nurse Bowles of taking Geoffrey's vital signs every fifteen minutes

Testimony revealed that Dr. Seal gave Nurse Bowles an order to call Kennedy first if there was a problem with the baby or before Bowles gave the baby oxygen, but if a disagreement arose between Bowles and Kennedy that could not be satisfactorily worked out that Seal be called. In view of her concern about the baby, at 3:45 a.m. Nurse Bowles called Ms. Kennedy to look at Geoffrey. Kennedy came to check on Geoffrey and told Nurse Bowles that Geoffrey was fine. At 4:00 a.m. Bowles, still concerned, contacted Kennedy again. Kennedy again checked Geoffrey and told Bowles the baby was fine. Bowles did not contact Dr. Seal during this time and she testified that after the second check by Kennedy she felt she must have been wrong in her concern for Geoffrey's condition. Testimony also revealed that the nurses' aid assigned to check Geoffrey's vital signs fell asleep twice during the night and the hospital records for the vital signs suggest vitals were not taken on two occasions.

Beginning shortly after 7:00 a.m. several other hospital employee nurses and Dr. Seal (who had returned to the hospital) cared for Geoffrey. Geoffrey was eventually transferred to a hospital in Oklahoma City in the late morning or early afternoon after it was discovered he had gone into hypovolemic shock caused by a subgaleal hematoma probably the result of an improper forceps delivery by Dr. Seal. The shock was caused by loss of blood which was the result of internal bleeding, probably from a vein, which was draining blood from the baby's body and collecting it into the space between the outer skull and overlying skin covering of his head. Geoffrey died of hypovolemic shock early in the evening at the hospital in Oklahoma City. ²

Plaintiff also presented evidence that Nurse Bowles and other hospital employees had previous concerns about Dr. Seal's treatment of patients, including his reluctance to transfer patients to more specialized facilities when the need arose. The trial court admitted this evidence giving a limiting instruction to the jury that he was permitting its introduction "only to show what was in the mind of the nurses and hospital personnel and how it may have, if in any way, or did affect or should have affected their actions." The prior episodes included 1) two other cases where infants were not transferred to specialized facilities and death occurred, one about a week before Geoffrey's death and the other about two years prior; 2) leaving surgery or "breaking scrub" on two occasions while patients were still on the operating table, which was a violation of hospital policy ³; 3) failure to arrive at the hospital for the delivery of a baby, requiring that a nurse

deliver the infant; 4) sending a patient home within twenty-four (24) hours with an incision into her rectum without antibiotic coverage necessitating that the patient undergo surgery to cure an infection; and 5) two times when Seal apparently failed to report suspected physical and/or sexual abuse of children situations to appropriate authorities

The focus of plaintiff's case against the hospital was that hospital employees, particularly Nurse Bowles, were negligent in their care of the infant from approximately 3:00 a.m. until 7:00 a.m. by their omission to take proper action to obtain adequate care for Geoffrey when it was recognized Geoffrey was a severely distressed infant. Plaintiff's theory was that the baby was noticeably and severely ill during this time and that Nurse Bowles should have contacted Dr. Seal during the night, or, if Dr. Seal failed to respond to the baby's condition when contacted, that Nurse Bowles should have "gone over his head" to the director of nursing or hospital administration so that steps could be taken to transfer the infant to a neonatal care facility in Oklahoma City, Tulsa or Enid.

Two medical doctor experts for plaintiff testified that failure of the nurses to have taken such action fell below the accepted standard of care for nurses and that such failure was a direct, contributing cause of Geoffrey's death. One expert also testified that the evidence of prior knowledge or questions concerning Seal's previous treatment of patients showed that hospital personnel knew they had a problem doctor on staff and that the nurses, following accepted standard nursing practice, should have taken this information into consideration when providing care and treatment to Geoffrey. This expert also opined that the nurses' aid falling asleep was a significant factor in causing the death because of the importance of having an accurate record of the vital signs with an infant in Geoffrey's condition. Plaintiff's other expert did not believe this was a significant factor in causing the death. Both medical experts for plaintiff were also of the view Dr. Seal's treatment of Geoffrey fell below accepted standard medical practice and was a contributing cause of the death.

Hospital's defense relied on the theory the negligence of Dr. Seal during the mother's labor, during delivery of the infant, and continuing thereafter until the baby's transfer to Oklahoma City, was the sole cause of Geoffrey's death. Hospital's experts were generally of the view that until sometime after 7:00 a.m. (after Seal had returned to the hospital) the baby's condition could not have been recognized by nurses as critical and that only when the baby "crashed" after this time was it evident that Geoffrey had gone into shock. ⁴ Hospital further attempted to show that hospital employees' care of Geoffrey during all times he was at the hospital did not fall below the accepted standard of nursing practice, that hospital employees reasonably followed the orders of Dr. Seal and that hospital employees had no adequate or obvious reason to contact Dr. Seal during the above critical hours or "go over his head" to seek independent care or transfer the infant to a more specialized facility. All three of hospital's experts backed up the hospital's theory of the case.

Initially, plaintiff sued the hospital, Dr. Seal, Ms. Kennedy and the Oklahoma College of Osteopathic Medicine & Surgery. Before trial plaintiff dismissed with prejudice all claims against the latter three. The plaintiff and Dr. Seal agreed to a pre-trial settlement of $150,000.00. The action proceeded to trial only against the hospital. The jury returned a verdict against hospital for $800,000.00, which the trial court reduced to $650,000.00 in light of the previous $150,000.00 settlement. ⁵ Hospital also filed post-trial motions for a new trial, judgment notwithstanding the verdict, or a remittitur.

The trial judge ordered a new trial unless...