Woodlawn Infirmary, Inc. v. Byers

• Decision Date: 07 April 1927
• Docket Number: 6 Div. 662
• Citation: 112 So. 831,216 Ala. 210
• Parties: WOODLAWN INFIRMARY, Inc., et al. v. BYERS.
• Court: Alabama Supreme Court

112 So. 831

216 Ala. 210

WOODLAWN INFIRMARY, Inc., et al. v. BYERS.

6 Div. 662

Supreme Court of Alabama

April 7, 1927

Rehearing Denied May 19, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by J.W. Byers against the Woodlawn Infirmary Inc., and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellants.

Barber & Barber, of Birmingham, for appellee.

GARDNER J.

Plaintiff's minor daughter, Clara Byers, underwent an operation for appendicitis at Woodlawn Infirmary, performed by Dr. J.H Stephens, and subsequent thereto developed tetanus or lockjaw, from which disease she died. Plaintiff sued the infirmary and Dr. Stephens to recover damages for the death of his daughter, alleged to have been produced by a want of reasonable care, skill, and diligence in her treatment.

At the close of plaintiff's evidence, defendant offered no proof, and the cause was submitted to the jury, resulting in a judgment for the plaintiff, from which defendants have prosecuted this appeal.

The first questions presented relate to the sufficiency of the complaint and the action of the court in refusing the affirmative charge for the defendants, duly requested in writing. The complaint was sufficient as against any demurrer interposed thereto. McCoy v. L. & N.R. Co., 146 Ala. 333, 40 So. 106; Powell v. Thompson, 80 Ala. 51.

The Woodlawn Infirmary (according to the complaint and the proof) was engaged in the operation and conduct of a hospital for the treatment of patients, for a reward, affected with physical ailments, and Dr. J.H. Stephens was the physician or surgeon by and through whom the said infirmary undertook to treat patients. As said in Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann.Cas.1912D, 863:

"The allegations as to a contract are mere matters of inducement and to show the relation between the parties, and *** that there was a breach of a duty, owing by the defendant to the plaintiff, based upon or growing out of the contractual relations between the parties."

The following excerpt from the opinion in McCoy v. L. & N.R. Co., supra, is here pertinent in respect to both the pleading and the proof:

"Where one has received an injury at the hands of two or more persons acting in concert, or acting independently of each other, if their acts unite in causing a single injury, all of the wrongdoers are liable for damages occasioned by the injury. It is also manifest that this single injury, in itself or of itself indivisible, constitutes an indivisible cause of action. This is true notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment without satisfaction could not be set up in defense by either tort-feasor."

See, also, Ala. Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548.

Plaintiff's daughter was a patient both of the infirmary and Dr. Stephens, the latter having the management and control of the former, its alter ego, as it were. There was no such fatal variance between the allegations and the proof as to justify giving the affirmative charge for defendants. Hackney v. Perry, 152 Ala. 626, 44 So. 1029.

The rule is recognized in this state that the burden of proof is not shifted from the plaintiff by showing that an unsuccessful result has attended the treatment of the patient by the physician. "The doctrine of res ipsa loquitur does not apply to the mere fact of a blood infection, however closely, in temporal sequence, it may follow a medical treatment." Moore v. Smith, Adm'x (Ala.Sup.) 111 So. 918.

"A civil action for malpractice against a physician and surgeon may be sustained on proof of a failure to exercise reasonable and ordinary care, diligence and skill in respect to the duty so assumed and undertaken as physician and surgeon--such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case." Moore v. Smith, Adm'x, supra, and authorities therein cited.

A larger portion of the remaining questions relate to rulings on defendants' objections to evidence offered by plaintiff.

It may be here remarked that the evidence of plaintiff tended to show concurrent negligence of defendants, that is, as to the infirmary negligence as to the matter of cleanliness of the floor and the method of sweeping with broom, causing dust, rather than the use of mops (as shown to be in use in hospitals generally), improper sterilization of instruments, and insufficient heating of the rooms in which plaintiff's daughter was, and improper care of the wound following the operation, together with a lack of necessary serum when needed in her case.

The jury, from the evidence, might reasonably infer that the major portion of these deficiencies were known to defendant Stephens, who was in control of the infirmary, and who so far as the proof shows took no steps to remedy the same. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.

It would seem the proof also was sufficient for submission to the jury of the question as to whether or not there was unreasonable delay in the ascertainment of the condition of plaintiff's daughter as to lockjaw, and whether or not the known remedies were applied with sufficient diligence and promptness.

From this brief outline of the case, we think it sufficiently appears that the authorities relied upon by appellants are readily distinguishable. Tucker v. Mobile Infirmary Ass'n, 191 Ala. 572, 68 So. 4, L.R.A.1915D, 1167; Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30, Ann.Cas.1916C, 1097; Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Parsons v. Yolande Coal & Coke Co., 206 Ala. 642, 81 So. 493.

We have above indicated our view that the evidence the floors...