Utter v. United Hospital Center, Inc.

• Decision Date: 12 July 1977
• Docket Number: No. 13667,13667
• Citation: 160 W.Va. 703,236 S.E.2d 213
• Court: West Virginia Supreme Court
• Parties: Garth R. UTTER et al. v. UNITED HOSPITAL CENTER, INC. and Lawrence H. Mills.

Page 213

236 S.E.2d 213

160 W.Va. 703

Garth R. UTTER et al. v. UNITED HOSPITAL CENTER, INC. and Lawrence H. Mills.

No. 13667.

Supreme Court of Appeals of West Virginia.

July 12, 1977.

Syllabus by the Court

1. "Though a trial court's action in setting aside a verdict for the plaintiff is entitled to peculiar weight on writ of error, a trial court's order setting aside a verdict in plaintiff's favor, nevertheless, will be reversed by this Court on writ of error, when a consideration of all the evidence clearly shows that the case was properly one for jury determination." Point 4, Syllabus, Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955).

2. "It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved." Point 1, Syllabus, Star Piano Company v. Brockmeyer, 78 W.Va. 780, 90 S.E. 338 (1916).

3. "A hospital owes to one who is a patient therein a duty to exercise reasonable care in rendering hospital services to the patient and, in the performance of such duty, due regard must be given to the mental and physical condition of the patient of which the hospital, in the exercise of reasonable care, should have knowledge." Point 2, Syllabus, Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965).

Jones, Williams, West & Jones, James C. West, Jr., Clarksburg, for appellants.

Steptoe & Johnson, Herbert G. Underwood, Clarksburg, for United Hospital Center.

Charles G. Johnson, Clarksburg, for Mills.

CAPLAN, Chief Justice:

On this appeal from a final order of the Circuit Court of Harrison County we are called upon to consider and determine the propriety of the action of that court in setting aside a jury verdict for the plaintiff and entering judgment for United Hospital Center, Inc., one of the defendants in that trial. We reverse and reinstate the jury verdict.

Giving rise to this controversy was an injury sustained by the plaintiff, Garth R. Utter. On August 25, 1973, Mr. Utter, while working at the Marshville Community Center in Harrison County, fell from a ladder sustaining serious and severe injuries to his right wrist, his elbow and his back. He was immediately taken to United Hospital Center where he was examined and treated. The examination revealed a comminuted compound fracture of the right wrist, a posterior dislocation of the right elbow and a compression fracture of the second lumbar vertebra.

The plaintiff's physician, Lawrence H. Mills, M.D., applied a cast to his right arm, the cast extending from above the elbow to below the knuckles of the right hand. After further emergency room treatment he was admitted as a patient in defendant hospital. No complaint is registered concerning the treatment received by the plaintiff during his first forty-eight hours in the hospital. However, it is alleged by the plaintiff that beginning with the 7 A.M. to 3 P.M. shift on August 27, 1973 and continuing through August 28, 1973, when the plaintiff was removed to another hospital, the treatment and care rendered by the nurses and hospital personnel was a deviation from express hospital policy and constituted negligence.

Mr. Utter's condition continued to worsen and on the night of August 28, 1973 he was transferred to the West Virginia University Hospital at Morgantown. It was there determined by Jack L. LeFrock, M.D., a specialist in infectious diseases, that the only hope of saving the plaintiff's life was to transfer him to a hospital where a hyperbaric oxygen tank was available for treatment. He was transferred to the University of Maryland Hospital for that purpose where he received seven hyperbaric oxygen treatments. His right arm was then amputated at the shoulder joint.

The civil action subsequently instituted by the plaintiff and his wife against the doctor who originally treated him and the defendant hospital resulted in a jury verdict for plaintiff Garth R. Utter in the sum of $333,000.00 and for his wife in the amount of $1,320.00. This verdict was against both the doctor and the hospital and judgment was entered thereon. Motions to set aside the verdict were filed by both defendants and the motion of the doctor was overruled. However, the court sustained the motion of United Hospital Center, Inc. and entered judgment for it. Although the judgment became final as to the doctor, his appeal having been denied by this Court, this appeal is prosecuted to effect the reinstatement of the jury verdict against the hospital.

The sole issue is whether, upon consideration of the evidence, the court erred in setting aside the jury verdict and entering judgment for the defendant hospital.

In evaluating the evidence in relation to the actions or omissions of the nurses who treated the plaintiff and for the purpose of determining their duties and responsibilities it is necessary to consider the following declared hospital policy as set out in the manual of the Department of Nursing:

If a Registered Professional Nurse has any reason to doubt or question the care provided to any patient or feels that appropriate consultation is needed and has not been obtained, she shall direct such question of doubt to the attending practitioner. If, after this, she still feels that the question has not been resolved, she shall call this to the attention of the Departmental Chairman. Where circumstances in his opinion, are such as to justify such action, the Chairman of the Department may himself request the consultation. In such cases, two consultants shall be named by the President of the Medical Staff. If both of said consultants are in agreement, the attending practitioner will be expected to accept their recommendations.

Upon examination of the record, with particular attention to the testimony of the nurses, the treating physician, the hospital authorities and plaintiff Ruth Utter and taking into consideration the requirements of the above quoted provision of the nursing manual, we find that there was credible evidence that the defendant hospital, acting through its agents and employees, negligently failed to properly treat and care for the injured plaintiff. There is evidence that it negligently failed to observe the development of the plaintiff's condition and, consequently, negligently failed to pursue, through further laboratory testing and medical specialization, procedures which could have benefitted the plaintiff. Certainly, there was credible evidence that the nurses deviated from the requirements of the nursing manual.

Whether the defendant hospital, considering the evidence, was guilty of negligence was a determination to be made by the jury and its findings should not have been disturbed by the trial court. Abdulla v. Pittsburgh & Weirton Bus Co., W.Va., 213 S.E.2d 810 (1975); Wager v. Sine, W.Va., 201 S.E.2d 260 (1973); Howard's Mobile Homes Inc. v. Patton, W.Va., 195 S.E.2d 156 (1973); Shields v. Church Bros. Inc., W.Va., 193 S.E.2d 151 (1972); Kidd v. Norfolk & Western Railway Co., W.Va., 192 S.E.2d 890 (1972).

We do not deem it necessary to quote in detail the testimony of the nurses or other witnesses. It is sufficient to show the situation, as reflected by the record, relating to the care and treatment rendered to the plaintiff. Beginning with the 7 A.M. to 3 P.M. shift on August 27, 1973 and continuing through August 28, 1973, when the patient was transferred, the condition of the patient appeared to deteriorate. This deterioration continued even though the nurses...