Tucker Sanatorium Inc v. Cohen

• Decision Date: 17 March 1921
• Citation: 106 S.E. 355
• Parties: TUCKER SANATORIUM, Inc. v. COHEN.
• Court: Virginia Supreme Court

106 S.E. 355

TUCKER SANATORIUM, Inc.

v.COHEN.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Error to Hustings Court of Richmond.

Action by Henry Cohen against the Tucker Sanatorium, Incorporated. Judgment for plaintiff, and defendant brings error. Affirmed.

This is an action instituted by the defendant in error, Cohen, for damages alleged to have been occasioned, while he was an inmate of a hospital conducted by the plaintiff in error, by the negligent application or failure to remove hot-water bags from the back of Cohen, as the result of which negligence he received, as alleged, a serious burn on the back.

The respective parties will be hereinafter referred to as plaintiff and hospital.

There was a demurrer to the declaration which was overruled by the trial court.

The declaration contains two counts. After stating the facts concerning the receiving of the plaintiff by the hospital as an inmate, as a patient, for care and treatment, for a certain reward paid in that behalf to the hospital, from which relationship of the parties the duty of the hospital arose (about the extent of which there is no question raised in the case), to wit, the duty to use ordinary or reasonable care under the circumstances to provide proper care and treatment for the plaintiff while said relationship existed, the first count contains the following allegations, the sufficiency of which is challenged by the demurrer, namely:

" * * * The said defendant * * * did not use due, proper, and ordinary care to provide proper care and treatment for the said plaintiff, but on the contrary the said defendant and its duly authorized servants so negligently and carelessly behaved and conducted themselves in that respect that afterwards and whilst the said plaintiff so abided in the said hospital, as aforesaid, to wit, on the 10th day of December, 1918, the said defendant's duly authorized servants did negligently and carelessly apply hot-water bags to the back of the said plaintiff, whereby the said plaintiff's back was cruelly burned and scalded, to a great extent, to wit, about nine inches by four inches, and to a great depth, to wit, one-half inch, " etc.

The second count contains practically the same allegations as those of the first count, except that the negligence alleged is stated to have consisted in this, to wit, that—

"The said defendant and its duly authorized servants negligently suffered, permitted, and allowed hot-water bags to be carelessly and negligently applied to the back of the said plaintiff, whereby the said plaintiff's back was cruelly burned and scalded to a great extent, " etc., setting forth the same extent as is alleged in the first count, etc.

There was a trial by jury, which resulted in a verdict in favor of the plaintiff for $2,000.

The hospital moved the court to set aside the verdict on the grounds that it was contrary to the law and the evidence and without evidence to support it, that the court misdirected the jury, erred in refusing to give and also in changing instructions asked for by the hospital, and because the damages assessed by the jury were excessive. This motion the court overruled, and entered judgment for the plaintiff in accordance with the verdict, and the hospital appeals.

After the evidence both for the plaintiff and the hospital was all in, the hospital moved the trial court to instruct the jury-as follows:

(1) "That the defendant cannot be held liable in this case for any act, neglect, or failure to take proper precautions to protect the injured or burned place on the plaintiff's back after discovery thereof and before the operation by Dr. Henson, nor afterwards, whether such act, neglect, or failure was due to the nurse, Miss Wright, Dr. Vanderhoof, Dr. Hen-son, or some nurse employed by the defendant."

(2) "That under the case made by the declaration and evidence here, the question for them to consider is whether a bag or bottle of hot water was negligently placed under the back of the plaintiff at the time mentioned in the declaration, by some nurse employed by the defendant and placed in charge of the plaintiff, and that from a burn so received he suffered the loss and suffering of which he now complains.

"That it is incumbent upon the plaintiff to prove by affirmative evidence and by a preponderance of all the evidence in the case:

"(1) That one of the nurses employed by the defendant placed a bag or bottle of hot water under the back of the defendant at the time mentioned; and

"(2) That when it was so placed the said nurse knew, or by the exercise of ordinary care should have known, that it was so hot as to have caused the injury complained of.

"If the plaintiff has failed in either of the respects above mentioned, then they must find for the defendant."

(3) "That if the present condition of the plaintiff's back and the loss and suffering of which he complains is due to infection occurring from the operation performed by Dr. Henson prior to the plaintiff's leaving the hospital of the defendant, or to reinfection after he left said hospital, the defendant cannot be held liable in this case."

(4) "That if they believe from the evidence that the plaintiff's back was at the time mentioned in the declaration, December 10, 1918, burned by a bag or bottle of hot water placed there by the plaintiff's wife, they must find for the defendant; and they must also find for the defendant if from the whole evidence before them it is just as probable that the said bag or bottle was placed by the plaintiff's wife as by one of the nurses of the defendant."

But the court refused to give said instructions as offered, and instructed the jury as follows:

(1) "That if the defendant accepted the plaintiff, Cohen, as a patient, and undertook to give him such care, nursing, and attention as was reasonably necessary in view of his known condition, and negligently failed to keep and perform its undertakings, then in that case the defendant is liable for any injury which naturally resulted to the plaintiff from such failure."

(2) "That if they believe from the evidence in this case that the plaintiff intrusted himself to the defendant's hospital for treatment, then the plaintiff, while under the care of the defendant had a right to expect of the defendant and its employees in charge of the institution ordinary care and skill in nursing and treatment such as his case required, and such degree of ordinary care and diligence should be in proportion to the physical or mental ailments of the patient; and, if they further believe from the evidence in the case that said hospital, its servants or employees, did not exercise such ordinary care and diligence as was required by the condition of the plaintiff's health, and either negligently applied or permitted to be applied to his person a hot-water bag which resulted in injury to him, that they must find for the plaintiff."

(3) "That if they believe from the evidence in this case and the instructions as to the law that the plaintiff is entitled to recover damages, then in estimating the same they may take into consideration the amount of money spent for medicine and nursing and medical bills, and what the evidence shows he may have to expend in being cured; also fair compensation for loss of time he sustained by reason of the said injury; also the impairing of his earning capacity, if any; also the bodily injuries sustained, including his mental and physical suffering and the effect on his health, and the probable duration of the injury, whether the same is likely to be temporary or permanent. Not to exceed the sum sued for, to wit, $10,000."

(4) "That under the case made by the declaration in evidence here, the question for them to consider is whether a bag or bottle of hot water was negligently placed, or permitted to be placed, under the back of the plaintiff at the time mentioned in the declaration by some nurse employed by the defendant and placed in charge of the plaintiff, and that from a burn so received he suffered the loss and suffering of which he now complains.

"That it is incumbent upon the plaintiff to prove by affirmative evidence and by a preponderance of all the evidence in the case:

"(1) That one of the nurses employed by the defendant negligently placed, or permitted to be placed, a bag or bottle of hot water under the back of the defendant at the time mentioned; and

"(2) That when it was so placed, or permitted to be placed, the said nurse knew, or by the exercise of ordinary care should have known, that it was so hot as to have caused the injury complained of.

"If the plaintiff has failed in either of the respects above mentioned, then they must find for the defendant."

(5) "That if the present condition of the plaintiff's back and the loss and suffering of which he complains is not the natural result of the burn received, but is due to infection occurring from the lack of care with respect to said burn in the operation performed by Dr. Henson prior to the plaintiff's leaving the hospital of the defendant, or to reinfection after he left said hospital, the defendant cannot be held liable in this case." (Italics supplied.)

(6) "That if they believe from the evidence that the plaintiff's back was at the time mentioned in the declaration, December 10, 1918, burned by a bag or bottle of hot water placed there by the plaintiff's wife, without the knowledge or consent of the defendant, they must find for the defendant; and they must also find for the defendant if from the whole evidence before them it is just as probable that the said bag or bottle was placed by the plaintiff's wife as by one of the nurses of the defendant."

Further reference is made in the opinion of the court to the issues and to the evidence in the case.

Scott & Buchanan, of Richmond, for plaintiff in error.

J. R. Lenahan and D. C. O'Flaherty, both of Richmond, for defendant in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the...