Whitfield v. Whittaker Memorial Hospital

• Decision Date: 05 September 1969
• Parties: Willie WHITFIELD, Admr., etc. v. WHITTAKER MEMORIAL HOSPITAL et al.
• Court: Virginia Supreme Court

Page 563

169 S.E.2d 563

210 Va. 176

Willie WHITFIELD, Admr., etc. v. WHITTAKER MEMORIAL HOSPITAL et al.

Supreme Court of Appeals of Virginia.

Sept. 5, 1969.

Stanley F. Sacks, Norfolk (Allan D. Zaleski, Sacks, Sacks, Kendall & Tavss, Norfolk, on the brief), for plaintiff in error.

Fred W. Bateman, Newport News, George H. Heilig, Jr., Norfolk, Daniel W. Wilkinson, Jr., Newport News (John F. Rixey, Rixey & Rixey, Norfolk, Bennett L. Stein, West & Wilkinson, Newport News, on the brief), for defendants in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON, and HARRISON, JJ.

I'ANSON, Justice.

This action was instituted by Willie Whitfield, administrator of the estate of Janice Elizabeth Bryant, deceased, against the defendants, Whittaker Memorial Hospital, Dr. Russell E. Reid and Sara Sayles, to recover damages for the alleged wrongful death of plaintiff's decedent, who died before regaining consciousness after surgery. There was a jury trial, and at the conclusion of plaintiff's evidence defendants moved the court to strike out plaintiff's evidence and to enter summary judgment in their favor. The trial court granted the motions of the hospital and Dr. Reid, but overruled the motion of Mrs. Sayles.

After Mrs. Sayles submitted her evidence, plaintiff moved the court to hold as a matter of law that she was guilty of negligence and to submit to the jury only the question of damages. The motion was overruled, and the jury returned a verdict for Mrs. Sayles. Judgment was entered on this verdict, and we granted plaintiff a writ of error as to all three of the defendants.

Plaintiff contends that the trial court erred (1) in not holding as a matter of law that Mrs. Sayles was guilty of negligence; (2) in amending his instruction C--1; (3) in taking judicial notice that the hospital is a charitable institution; (4) in holding as a matter of law that the hospital was not negligent in the hiring, retention and selection of Mrs. Sayles; (5) in holding as a matter of law that Mrs. Sayles was not an agent of Dr. Reid; and (6) in holding as a matter of law that Dr. Reid was not negligent in the post-operative procedure.

Plaintiff's decedent, hereinafter referred to as patient, was admitted to the hospital on March 14, 1964. At 8:30 a.m. on March 16 the patient was taken to the operating room and prepared for a tonsillectomy and the removal of several teeth. Mrs. Sayles, employed by the hospital as a nurse-anesthetist, administered the anesthetic. She commenced the procedure with an intravenous injection of sodium pentothal to induce sleep. Ether was then administered through an 'ether hook' placed in the side of the patient's mouth, and oxygen through a nasal catheter, or rubber tube, taped to her face. As soon as the patient was in an unconscious state, several decayed teeth were removed by a dentist. Dr. Reid then removed her tonsils, and the operation was nearly complete when Mrs. Sayles called Dr. Reid's attention to the fact that the patient's stomach was distended; he simultaneously noticed a discoloration of her face. Attempts to relieve the pressure from the gases which had entered the patient's stomach were unsuccessful, and she died at 6:05 p.m. that same day.

Dr. Reid, called as an adverse witness, testified that he had selected the general anesthetic to be used. He directed Mrs. Sayles when 'to administer the anesthetic and was standing beside her when she started the anesthesia procedure. He watched her tape the catheter to the patient's face, and inspected it. When he saw that the patient was reacting properly he stepped out of the operating room for about ten minutes to 'scrub up.' He stated that Mrs. Sayles followed the standard and accepted medical procedure in Newport News and similar communities for administering anesthetics. In describing the anesthesia procedure, he said that it is very important to keep the nasal catheter at the tip of the uvula, or soft palate, so the mixture of ether and oxygen will go into the lungs; otherwise the mixture could go down the esophagus into the stomach. When he started the removal of the patient's tonsils the catheter was in its proper position. At one point during the operation he had the catheter disengaged from the tape and shortened so that it would not interfere with his examination of the patient's adenoids. As soon as the complications arose, he attempted without success to relieve the pressure in the patient's stomach by means of a rectal tube, and he then had her removed to the recovery room where further efforts were made to bring her out of shock. Her blood pressure dropped until it measured fifty over zero, and blood and fluids were administered in an effort to bring the pressure up. X-rays showed that her stomach had ruptured and that gas had spilled into her abdominal cavity. Although the operating room was prepared, he did not feel that the patient could survive an immediate operation.

Mrs. Sayles testified that she is a graduate nurse, and in 1954 she received a certificate as a nurse-anesthetist from a school approved by the American Medical Association. She said that she has administered anesthetics between three and four thousand times. Throughout the administration of the anesthetic she watched the patient's circulation, ventilation and blood pressure. Dr. Reid was her supervisor when she administered the anesthetic to the patient. Because of her position at the head of the operating table she could not see the location of the catheter in the patient's mouth during the operation.

Dr. Grannum, the hospital administrator, testified that the hospital is an eleemosynary institution. He further said that the hospital did not have an anesthesiologist, a medical doctor with special training in administering anesthetics; that Mrs. Sayles was one of the two nurse-anesthetists on the hospital staff; that no complaints had been received relative to the performance of her duties; and that the hospital billed the patient for the services rendered by the anesthetist.

Dr. Douglas W. Eastwood, an anesthesiologist and professor of anesthesia at the University of Virginia, testified that he had reviewed the patient's hospital records and it was his opinion that the patient died in shock from a rupture of the stomach due to insufflation of gas, which probably came from the nasal oxygen catheter. He said that in the administration of this type of anesthetic there is a known risk 'which has to be looked for and stopped.' Certain safety standards must be followed, one of which is to have a system whereby any gas going into the stomach can be detected. This is most easily done by putting a precordial stethoscope on the patient's chest so that gases can be heard if they go down the esophagus into the stomach. He was of the opinion that since no method was used to detect gases going into the patient's stomach, the procedure followed in administering the anesthetic deviated from the standard and accepted medical practice then existing in Newport News and other similar communities. He said that the nasal catheter would have had to slip an inch to an inch and a half to cause the distension of the stomach. He concluded by stating that he knew of no way for such a result to occur other than impropriety in the anesthesia procedure itself.

Dr. Eastwood was also of the opinion that the postoperative treatment was inadequate by 'the standards of management (in any community) of any acute trauma by whatever cause.' It was necessary to perform an operation before the patient could be brought out of shock, and the blood pressure would probably not have been corrected until the swollen condition of her stomach was relieved. If an operation had been performed, it probably would have saved the patient's life.

Dr. C. W. Scott and Dr. G. P. Carter both testified that the anesthetic was administered in accordance with the standard and accepted medical practices in the community of Newport News and in similar communities.

Plaintiff contends that the court erred in not holding as a matter of law that Mrs. Sayles was guilty of negligence and in not submitting to the jury the question of damages alone.

We have repeatedly said that the jury is the proper tribunal to decide whether a party is guilty or not guilty of negligence when the evidence is conflicting; and that the question of negligence should be withdrawn from the jury only where the evidence is such that reasonable men, after weighing the evidence and the inferences therefrom, could reach but one conclusion. Giannone v. Johnson, Adm'x, 204 Va. 493, 496, 132 S.E.2d 445, 448 (1963); Cook v. Virginia Holsum Bakeries, Inc., 207 Va. 815, 819, 153 S.E.2d 209, 212 (1967).

Here the evidence is conflicting as to whether Mrs. Sayles deviated from the customary and acceptable procedures in her community and in similar communities at that time in administering the anesthetic to the patient. Thus we cannot say as a matter of law that Mrs. Sayles was guilty of negligence and that the trial court erred in not submitting to the jury the question of damages alone.

Plaintiff contends that the court erred in deleting the word 'possess' from instruction C--1, which read as follows:

'It was the duty of the defendant, Sara Sayles, to Possess and exercise such reasonable and ordinary skill, care and diligence as are ordinarily exercised by the average of the members of her profession in good standing, in similar localities and in the same general line of practice, with regard being had to...