Teig v. St. John's Hospital

• Decision Date: 05 December 1963
• Docket Number: No. 36766,36766
• Citation: 387 P.2d 527,63 Wn.2d 369
• Parties: Orville TEIG, Appellant, v. ST. JOHN'S HOSPITAL, a corporation, and J. L. Axling, Respondents.
• Court: Washington Supreme Court

Page 369

63 Wn.2d 369

387 P.2d 527

Orville TEIG, Appellant, v. ST. JOHN'S HOSPITAL, a corporation, and J. L. Axling, Respondents.

No. 36766.

Supreme Court of Washington, Department 1.

Dec. 5, 1963.

Rehearing Denied Jan. 28, 1964.

Miracle, Treadwell & Pruzan, Seattle, J. B. McCoy, Longview, for appellant.

McLean, Klingberg, Houston & Bergman, Judson T. Klingberg, Jerry A. Houston, Atwell, Moore, Walstead & Hallowell, Longview, for respondents.

POYHONEN, Judge. ^*

Appellant sued the respondents, St. John's Hospital and Dr. J. L. Axling, for damages alleged to have been proximately caused by concurring negligence of both in the treatment of appellant's leg fractures. Trial to a jury took 10 days. At the close of appellant's case, the trial court granted the respondent hospital's motion to dismiss and denied a similar motion of respondent Axling. Trial resulted in a jury verdict of $25,000 against respondent Axling. Thereafter the trial court granted respondent Axling's motion for judgment notwithstanding the verdict and also his alternative motion for a new trial,

'* * * said order for a new trial not to become effective unless and until the order granting the motion for judgment notwithstanding the verdict shall hereafter be reversed, vacated, or set aside in the manner provided by law * * *.'

Appellant assigns as error: (1) dismissal of appellant's complaint against respondent hospital, and (2) granting of respondent Axling's motions for judgment notwithstanding the verdict and for now trial, and failure to enter judgment for appellant in the sum of $25,000.

The appellant, Orville Teig, age 55, weight about 120 pounds, was admitted to St. John's Hospital in Longview on the evening of June 20, 1959, with two broken legs. His physician, Dr. J. L. Axling, of Longview, arrived within a few minutes. The fracture of the femur of the left leg healed without incident. The right leg had severely comminuted fractures of the upper tibia and fibula with dislodged bone fragments. Under general anesthetic a closed reduction was performed, and plaster of paris casts were applied to both legs, extending from the toes to the groin. Because of impairment to circulation in the right leg, evidenced by a cold and cyanotic condition of the toes, the right leg cast, under doctor's orders, was split full length on the inner side and later on the outer side, the two parts being thereafter held together with tape. X-rays on June 22 showed satisfactory alignment and 'fragments appear to be in satisfactory position.' Otherwise, appellant's hospital stay was relatively uneventful until the afternoon of June 23rd.

About 3:30 p. m. on June 23rd, appellant was exhibiting symptoms of confusion and disorientation. He imagined water dripping from the pipes holding the bedside curtains. About 8:30 p. m. that day, he was seeing 'flying bugs' and was shouting. Dr. Axling, reached by phone, made a diagnosis of delirium tremens and by phone prescribed paraldehyde. Appellant quieted down and slept. At 4 a. m. June 24th, appellant awoke, was confused, and was trying to get out of bed. Paraldehyde was given with no effect. Dr. Axling, again reached by phone, at 4:45 a. m., prescribed paraldehyde, intermuscularly, and whiskey, orally. At 7 a. m. a nurse noted that appellant was trying to get out of bed. At 8:55 a. m. appellant was again trying to get out of bed, and Dr. Axling, by phone, ordered morphine to be repeated in two hours and one ounce of whiskey every three to four hours. Later that morning, Dr. Axling saw appellant at the hospital and left orders for whiskey every three hours, up to five or six ounces that day and four ounces the next, morphine sulphate every three to four hours as needed, and B-complex vitamins.

The bed sideboards were at all times kept in a raised position. Dr. Axling did not order restraints, testifying that to restrain a patient with delirium tremens is dangerous and must be a last resort. Hospital nurses had been looking in on appellant at frequent intervals. Appellant's wife suggested a full-time attendant, but a nurse informed her that this would have to be ordered by the doctor. Dr. Axling did not order a full-time attendant because he did not think it reasonably necessary. At noon appellant was shouting, trying to get out of bed, and confused, 'thought he had bought hospital and was renting out rooms,' and 'thought he was at work at the mill.' At 1 p. m. appellant was found in his room, out of bed, on a chair. The right leg cast had fractured clear through on both sides, close to the site of the bone fracture.

The next morning, June 25th, bloody drainage was noted. X-rays that day showed misalignment and lateral angulation of the distal fragments. On June 26th, bloody drainage was noted. Dr. Axling attempted realignment of the leg and put on a new cast. At that time, blebs, or blisters were noted. X-rays three days later, June 29th, show 'compared to the last films, no change is noted.'

The next X-rays were on August 18th, 50 days later, and the report was '* * * very little radiographic evidence of callus. The relationship of the fragments of the upper tibia and fibula can not be determined on the present films, apparently they are not penetrated enough.' August 31st Dr. Axling ordered a window cut in the cast and drainage was noted. X-rays on September 8, 1959, showed 'no change noted since last films.'

X-rays were next taken on September 25th, and the report was 'On the lateral film the distal fragments show anterior angulation in relation to the comminuted proximal fragments. On the AP film there is lateral displacement of the distal fragments.' That day Dr. Axling removed the cast; there was a sharp bend in the bone at the fracture site, a forward angulation of the lower bone of 26 degrees, and no evidence of healing of bone or bony union or callus formation.

Three days later, September 28, 1959, Dr. Axling turned care of the appellant over to Dr. James W. Weed of Longview, an orthopedic surgeon, who, on that date, made an attempt to realign the leg and applied a new cast. X-rays taken the next day disclosed that the attempt at realignment had not been successful. November 20th Dr. Weed performed a bone graft. The site of the bone graft, as well as the site of the incision into the doner bone, developed a stubborn infection. The appellant was removed to a Veterans' Hospital in Vancouver, Washington, in March, 1960, where, on April 5th, he suffered a heart attack. On July 18th surgery was performed on the right leg and particles of dead bone removed, and, on July 29th, the right leg was amputated above the knee.

By pretrial order, negligence of the respondent hospital, if any, was limited to the period of June 20 to June 24, both inclusive, 1959. The appellant's argument is that appellant aggravated his injury in getting out of bed because the hospital negligently failed to take one of two necessary precautions that were available to it: (1) application of a posey belt around appellant's waist and tied underneath the bed, and (2) assignment of a full-time attendant so long as appellant's condition required.

The general standard of care required of a hospital is set forth in Cochran v. Harrison Memorial Hospital, 42 Wash.2d 264, 270, 254 P.2d 752, quoting with approval from Smith v. Simpson, 221 Mo.App. 550, 288 S.W. 69:

"It is not disputed that all the authorities hold that private hospitals owe to their patients such ordinary care and attention as the mental and physical condition of such patients reasonably requires. The law demands reasonable care, such care as a reasonable man would take under the citcumstances existing; but no man is required to take measures against a danger which the circumstances as known to him do not suggest as likely to happen."

Accord, Roth v. Havens, 56 Wash.2d 393, 353 P.2d 159; Kent v. Whitaker, 58 Wash.2d 569, 364 P.2d 556; Benjamin v. Havens, Inc., 60 Wash.2d 196, 373 P.2d 109.

The undisputed evidence is that the hospital employees had complied with every direction and order of the attending physician and had kept him fully informed of appellant's condition; that the appellant was a small man with long leg casts on both legs, extending from the toes to the groin; that prior to 1 p. m. on June 24, 1959, appellant had been able only to raise his neck, head, and shoulders slightly by using his arms and elbows; that the sideboards on the bed were kept raised; and that the nurses had looked in on appellant at frequent intervals.

The attending physician had diagnosed the appellant's problem as delirium tremens and had, in the exercise of his medical judgment, declined to authorize physical restraints because he felt such would be dangerous to the patient and could result in serious injury and even death. True, the appellant's medical witness testified that, in his opinion, appellant did not have delirium tremens, but he was not there with his advice at the time. The hospital administrator and employees could not reasonably have been expected to possess superior knowledge of appellant's medical problem so that, under the circumstances, they would have been justified in defying the attending physician's orders and now be held negligent for having failed to defy them.

Dr. Axling had not directed the respondent hospital to provide a full-time attendant. He did not believe it reasonably necessary, and was amazed to learn that appellant had left his bed. His testimony:

'* * * he must have been a superman. That is the only was I can account for it. A man with a long leg cast, with the cast up to the thigh, with both sideboards up and broken legs and he gets out of bed, it is pretty amazing.'

And again:

'* * * I considered it impossible for him to get out of bed with it. * * * Obviously there was an error in judgment.'

The appellant's own medical witness, Dr. Foley, was of the opinion that the hospital had met the standard of care. His testimony on...