Terhune v. Margaret Hague Maternity Hospital

Citation164 A.2d 75,63 N.J.Super. 106
Decision Date23 September 1960
Docket NumberNo. A--456,A--456
PartiesAnne TERHUNE and Clifford Terhune, Plaintiffs-Appellants, v. MARGARET HAGUE MATERNITY HOSPITAL et al., Defendants-Respondents.
CourtNew Jersey Superior Court – Appellate Division

Louis G. Morten, Jersey City, for plaintiffs-appellants (Maurice J. Frank, Jersey City, attorney).

Jacob Friedland, Jersey City, for defendants-respondents Margaret Hague Maternity Hospital, Board of Managers of Margaret Hague Maternity Hospital, County of Hudson and Dr. William D. Melosh (William F. Kelly, Jr., Jersey City, attorney).

Henry F. Hoey, Jr., Newark, for defendant-respondent Dr. Arthur D. Zampella (Braun & Hoey, Newark, attorneys).

Before Judges CONFORD, FOLEY and KILKENNY.

The opinion of the court was delivered by

CONFORD, J.A.D.

We have here to review the dismissal of a negligence action on the plaintiffs' opening. The gravamen of the action is that in the course of being delivered of a child in the defendant hospital the female plaintiff sustained a facial inflammation or rash in the nature of a burn as a result of negligence in the administration to her of an anesthetic. The defendant doctors Zampella and Melosh, and another physician, not made a defendant, participated in the delivery of the child. Still another doctor, who was the hospital staff anesthetist actually in charge of the administration of the anesthetic, was not made a defendant.

Involved in the resolution of this appeal are legal principles pertaining both to the sufficiency of an opening to withstand dismissal and to malpractice or negligence by physicians. Both legal questions call for close attention to the factual representations made in the cause by the time the trial court acted in this matter and to the way in which they came into the case.

In summary, the pretrial order stated plaintiffs' factual position as follows. Mrs. Terhune entered the hospital under the professional care of Dr. Zampella on June 24, 1956 in order to be delivered of a child. On June 25, 1956, while in the delivery room, she received 'burns' as the result of the 'improper application of anesthetic.' The mask was not properly attached to her face, the 'anesthetic machine and mask' were not inspected, and 'proper tests' of the patient were not made before administration of the anesthetic. The apparatus was operated and maintained by the defendants hospital and county. Dr. Zampella and Dr. Melosh 'were actively engaged in the delivery.'

In his opening to the jury plaintiffs' counsel stated that Mrs. Terhune's testimony would in essence be to the following effect: She was unconscious during the delivery because she had been given an anesthetic. She delivered during the night. When she awoke it was daylight. She had a burning sensation around her face, which was swollen twice its normal size, and she could barely look through her eyes. Her face was treated at the hospital with salves and medicines. 'You will hear from her lips how it was recognized that this came, or this occurred to her as a result of the delivery of the child.'

Mrs. Terhune left the hospital after a few days and was treated by Dr. Zampella for the condition which had 'caused eruptions all over her face.' Later she went to Dr. Donnelly, director of the hospital. 'She told him what the story was, 'Look what happened to me,' so forth, so on.' Dr. Donnelly sent her to an eye specialist, and she was later examined and treated by other physicians for the skin condition, most recently in 1959. The opening concluded as follows:

'Now, I cannot come here and say to you precisely who did what wrong. Mrs. Terhune did not know, she does not know today. Obviously, only knowing the facts as they have been given to me, I do not know. We claim, and we will attempt to show that the hospital in its supervision and its preparation of the various medicines, and anesthesias and so forth, which are necessary for this delivery, this operation, bringing into life a child, was negligent. That the doctors who supervised and participated in the delivery were negligent. They did something wrong to this woman, because she never had any trouble before, but after this operation, after this delivery of the child she had a terrible skin condition, these burns all over her face which progressed to other parts of her body.

'Now, it will be for you the jury to hear the evidence as it is put forth, and taking into consideration the facts as you have heard them, decide whether this woman did anything wrong whatsoever, whether she is in any way to blame for this condition over which she had absolutely no control, or whether these various people together, singularly or jointly, as the case may be, in view of the fact we are suing several doctors and the hospital, and so forth, are responsible for the injury to her. If you believe that they are responsible, then we ask you to compensate her for the suffering she has undergone, and still undergoing.

'Now, I want to make it perfectly clear that we say that these things occurred because they must have occurred. Since Mrs. Terhune did not do it someone or something, or some people, either together or singularly is responsible for what happened to Mrs. Terhune. It is up to you people on the jury to decide this.'

Thereupon all defendants moved for a dismissal. It was argued that the pretrial order alleged specific acts of negligence but that on the opening plaintiffs professed no knowledge as to the negligence but were proceeding on the theory of Res ipsa loquitur; that the theory was not here applicable; and that no specific acts of negligence were alleged at all as to the individual defendants. The court called upon counsel for plaintiffs to elaborate as to his intended proofs and witnesses. He stated he would prove certain admissions by the defendants, but without indicating what they were; that it was 'up to his discretion' to call Dr. Zampella or Dr. Melosh as his witnesses to 'bring out the fact of what they did in the handling of this woman.' He said the answers to interrogatories showed Mrs. Terhune's condition to be 'urticarial weeping rash,' which he represented was medically known as a burn, and he asserted that the contrasting conditions of Mrs. Terhune's face before and after delivery justified the application of the doctrine of Res ipsa loquitur against the defendants. In answer to questions by the court as to what medical or other witnesses he would produce, counsel said he had been unable to procure the attendance of any medical witnesses on behalf of the plaintiffs and would call as witnesses Mrs. Terhune and Dr. Zampella, the latter to verify certain admissions allegedly made to her.

In granting the motion for involuntary dismissal the trial judge stated that Res ipsa loquitur did not apply here; that a showing of 'express negligence' by the defendants was requisite, yet absent from the case as outlined. He declared that if plaintiff had in fact been 'burned,' a case of Res ipsa loquitur might appear, within the discussion in Toy v. Rickert, 53 N.J.Super. 27, 32--34, 146 A.2d 510 (App.Div.1958), but that the condition here involved was not a burn but an infection, as manifested by the spread of the disease to other parts of the body.

When one of the defendants undertook to refer to testimony of Mrs. Terhune on depositions, the court sustained an objection, stating it felt that on such a motion the depositions should not be considered.

In an action for negligence or malpractice against a physician the plaintiff ordinarily is required to establish that the defendant's treatment or care fell below the standard established and recognized by the medical profession for the indicated condition of the patient, and the standard must be proven by expert medical testimony. Toy v. Rickert, supra (53 N.J.Super. 27, 32, 146 A.2d 510). But where the asserted negligence consists of conduct so obviously wanting in reasonable medical skill and prudence that it may be so adjudged even by a layman, expert testimony as to the standard offended is unnecessary. Becker v. Eisenstodt, 60 N.J.Super. 240, 158 A.2d 706 (App.Div.1960) (plastic surgeon inadvertently using a caustic in post-operative treatment of patient's nose); Steinke v. Bell, 32 N.J.Super. 67, 107 A.2d 825 (App.Div.1954) (removal of wrong tooth by dentist); and see Toy v. Rickert, supra (53 N.J.Super., at pp. 33, 34, 146 A.2d at pages 514--515). In the latter case the court declined to apply the exception, sometimes identified as the Res ipsa loquitur exception to the general rule, to the instance of an injection by hypodermic syringe in the buttock of an antibiotic where the injection immediately affected the sciatic nerve with swelling of the area and ultimately caused painful demineralization of bones of the foot.

With this background as to the substantive negligence principles implicated, we turn to the procedural point respecting the sufficiency of an opening. We have the benefit of a recent comprehensive treatment of that subject by the Supreme Court in Passaic Valley Sewerage Com'rs v. Geo. M. Brewster, etc., Inc., 32 N.J. 595, 605--608, 161 A.2d 503 (1960). The court there (32 N.J., at p. 605, 161 A.2d at page 508) approved our statement of the purpose of an opening in Farkas v. Middlesex County Board of Chosen Freeholders, 49 N.J.Super. 363, 367--368, 139 A.2d 779 (App.Div.1958), as designed 'to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.' Said Mr. Justice Hall for the court in the Passaic Valley ca...

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19 cases
  • Winters v. Jersey City
    • United States
    • New Jersey Superior Court – Appellate Division
    • July 28, 1972
    ...Newark, 74 N.J.Super. 200, 181 A.2d 25 (App.Div.) certif. denied 38 N.J. 309, 184 A.2d 421 (1962), and Terhune v. Margaret Hague Mat. Hosp., 63 N.J.Super. 106, 164 A.2d 75 (App.Div.1960), involved negligence claims for injuries arising out of the operation of public hospitals, but in neithe......
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    ...are generally reluctant, especially in malpractice cases, to grant involuntary dismissals--see Terhune v. Margaret Hague Maternity Hosp., 63 N.J.Super. 106, 164 A.2d 75 (App.Div.1960)--where it is clear that plaintiff has not established a Prima facie case, no purpose is served by prolongin......
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