Warner v. Kiowa County Hospital Authority

• Decision Date: 17 February 1976
• Docket Number: No. 47695,No. 2,47695,2
• Citation: 551 P.2d 1179
• Parties: Mrs. O. F. WARNER and O. F. Warner, Appellants, v. KIOWA COUNTY HOSPITAL AUTHORITY, a Public Trust, et al., Appellees
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1179

551 P.2d 1179

Mrs. O. F. WARNER and O. F. Warner, Appellants, v. KIOWA COUNTY HOSPITAL AUTHORITY, a Public Trust, et al., Appellees.

No. 47695.

Court of Appeals of Oklahoma, Division No. 2.

Feb. 17, 1976.

Rehearing Denied April 5, 1976.

Released for Publication by Order of Court of Appeals July 1, 1976.

Philip R. Douglas, Smith, Smith & Vaughan, Oklahoma City, for appellants.

George F. Short, Pierce, Couch, Hendrickson & Short, Oklahoma City, for appellees.

BRIGHTMIRE, Judge.

She was a frail, 90-pound wisp of a woman when admitted to Kiowa County Hospital on Thursday, January 15, 1970, with an infected third-degree burn on her left elbow. A few days later, while under the influence of potent tranquilizing and analgesic drugs administered to combat pain and a condition of 'alcoholic psychosis,' the 61-year-old patient climbed over erected bedrails and fell causing multiple fractures of her right femur and hip joint--an injury requiring two later surgical operations and resulting in a shortened, right leg.

This lawsuit--brought by Mr. and Mrs. Warner against the hospital and others to recover damages for the leg injury--resulted in a jury verdict for defendants. From an order denying their request for a new trial, plaintiffs appeal claiming the trial court committed two reversible instructional errors, namely: (1) a misstatement of the hospital's legal duty owing Mrs. Warner (whom we shall refer to as plaintiff from here on) and (2) the giving of an instruction on contributory negligence which told the jury plaintiff could not recover if she did or failed to do anything falling below 'that degree of care and caution which An ordinarily prudent person would have exercised under the same or similar circumstances.' (emphasis added) ¹

I

Shortly after Josephine Warner got to the hospital the examining physician, Dr Bridwell, found her in a state of emaciation with a poor nutritional status, a 'palpable and tender' liver and, of course, a painful third-degree burn on her left elbow accompanied by an elevated temperature.

Definitive treatment of the burn was ordered which included whirlpool therapy, Sulfamylon cream to the wound, administrations of a special vitamin preparation, high-protein diet, Vistaril (a tranquilizer) and Talwin (an analgesic). As a final admission order the physician also said he wanted to be informed if his patient developed the 'D.T.'s' (delirium tremens).

Two days later (on January 17) Thorazine, another tranquilizer, was ordered given and on the 23rd the physician ordered hospital personnel to 'Restrain (Mrs. Warner) if necessary,' apparently leaving it up to the judgment of the hospital staff to determine if, when, and what kind of 'restraints' would be used.

According to the nurses' notes, plaintiff's mental condition began to deteriorate after her admission, so that by 8:00 p.m. Saturday, the second post-admission day, nurse Cagle could chart that the patient was 'confused and restless,' although 20 minutes earlier a 50-milligram (mg) shot of Thorazine had been injected into plaintiff intramuscularly. At 9:30 p.m. nurse Cagle noted that plaintiff continued to be confused and restless and that because the first shot of Thorazine 'did not seem to help,' a second one was given.

The next morning, Sunday, January 18, a floor nurse wrote that plaintiff 'Hears people talking about her . . . awake but cooperative.' During this day she was received five doses (250 mgs) of Vistaril and two shots of Talwin. On Monday plaintiff received six doses of Vistaril (300 mgs) and two shots of Talwin.

Tuesday morning plaintiff was again described as 'confused' and 'out walking.' On this day plaintiff received seven doses of Vistaril (350 mgs).

The first shift on Wednesday, January 21, ended on this note, 'a restless 8 hrs.' The second shift remarked at 2:00 p.m. that plaintiff was 'up walking in hall. Confused, hallucinating.' During the 24-hour period plaintiff received another six doses of Vistaril (300 mgs) and one of Talwin, and a progress note by the attending physician described plaintiff as 'disoriented.'

On Thursday, January 22, the patient was given Vistaril six more times (300 mgs), in addition to two shots of Thorazine. At 2:00 p.m. the nurse charted that plaintiff was 'very confused and upset--Talking incoherently' and that she refused a '2 cc' shot of Talwin. The day ended with this midnight entry pertaining to the patient, 'Up about halls--very restless et (and) talking loudly. App. (appears) very confused.'

Friday, January 23, began with a call to Dr. Bridwell who verbally ordered an extra dose of Thorazine given and authorized use of restraints. Restraints were applied. Plaintiff got 200 mgs of Vistaril, 150 mgs of Sparine (another potent tranquilizer) and 1 cubic centimeter (cc) of Talwin during the day. Dr. Bridwell summarized her condition in a progress note saying plaintiff 'Is wild as a March hare, and she--we had to restrain her last night, we will increase her medicines quite markedly and put-talk about getting a court committal to Western State Hospital (a state institution for the mentally ill).' Shortly before midnight the nurse found her 'Out of bed' and after midnight noted Mrs. Warner was 'Awake--still restless but not noisy.'

Saturday, January 24, the day of the fall, began with plaintiff 'still restless' despite the administration of substantial quantities of drugs. Between four and five in the morning the nurse noticed plaintiff 'talking to self.' An hour later the same nurse gave the patient 50 mgs of Vistaril even though Dr. Bridwell had ordered it discontinued the day before. The nurse's notes continue rather routinely until after the last entry of the 7:00 to 3:00 p.m. shift. Following a 2:30 p.m.-shift summary indicating plaintiff had 'a quiet day,' are four blank lines at the bottom of the page--an unusual finding. The next entry is on the next page headed '3--11 p.m.' All entries on this page are in the handwriting of nurse Cagle. The first one is 4:00 p.m., recording that 'Med.' was given, namely, 50 mgs of Sparine and a vitamin. Next, 5:00 p.m. was written on the record as the time a high-protein meal was given Mrs. Warner. Then came this long statement following a time entry of 5:20 p.m. 'When Mrs. Lyons--aide--was picking up the tray in this pt's. (Mrs. Warner) room she found that pt. (patient) out of bed. She (pt.) took a step backward and sat down on floor. Side rails were up on both sides of the bed at the time. With help Mrs. Lyons picked up the pt. and put her in bed. Dr. Bridwell was called. Pt. was taken to X-ray . . .' Nurse Cagle added this 10:45 p.m. note, 'a fair 8 hrs.'?

To place plaintiff's mental condition in perspective it must be borne in mind that during the 48 hours before her fall defendants admitted plaintiff was given at least 300 mgs of Vistaril, 75 mgs of Thorazine, 300 mgs of Sparine, and 2 ccs of Talwin--all potent drugs designed to affect the central nervous system. During the 25 hours preceding the fall plaintiff got at least 150 mgs of Vistaril, 250 mgs of Sparine, and 1 cc of Talwin. And during the 13 hours which elapsed before the fall plaintiff received 150 mgs of Sparine--a quantity regarding which Dr. Bridwell said in a February 2 progress note: 'She is very sedated this morning, got 150 mgs of Sparine through the night which is too dam (sic) much for her, which was more than she could handle and she is metabolizing it now.'

Supplementing the foregoing charted evidence was the trial testimony of Dr. Bridwell, aide Lyons, plaintiff's husband, and one of two sisters. Mr. Warner said he visited his wife about 7:00 a.m. on January 24 and she did not recognize him and would not respond to questions except by unintelligible mumbling. Mr. Warner, a railroader, left, ate breakfast, and returned to the hospital. His wife's condition had not changed. He noticed the bedrails were up and a gauze restraint was tied around her right wrist and the bedrail.

In a similar vein Mrs. Warner's sister told of being in the room between about 2:00 and 5:00 p.m. on January 24. She, too, found that her sister did not respond to verbal stimuli and acted as though she did not know her. The visitor noticed during this time that the bedrails were up and gauze restraints were tied around the patient's wrists and the rail.

Testifying on a broader plane, Dr. Bridwell said the three different tranquilizers given plaintiff--Vistaril, Sparine and Thorazine--were 'to calm her down' and relieve her restlessness, which he thought was probably due to withdrawal from excessive use of alcohol. The effect of these drugs, explained the physician, depends upon a person's size. A small person, such as plaintiff for example, would have a lower tolerance than a larger one. There is also the element of 'potentiation,' i.e., the increased strength and prolonged effect of a dose which accumulates from a series of doses, both of the same drug and of others having a potentiation capability. Thus, while the first 50-mg dose of Sparine may have a moderate effect for about six hours, prior Vistaril administration, as well as further Sparine doses, tend to build up in the body and create a more potent, cumulative effect lasting 12 hours. One of the potential side effects of these drugs is a disturbance of one's equilibrium and sense of balance.

The means of restraining a patient vary with the conditions. Bedrails will usually be sufficient to keep a patient from rolling or falling out of bed. They, however, will not prevent a mentally disturbed patient from climbing out of bed. Such a patient must either have a sheet tied across his body, a 'posey belt,' or some form of arm or hand fettering.

Whether a disoriented, confused, hallucinating patient will have trouble feeding himself depends upon the severity of the disturbance. Often he can feed himself because, says the doctor, it is 'something we do habitually.' But getting out of bed is another...