Ball Memorial Hospital v. Freeman

Dissenting Opinion

Achor, J.

— I do not concur in the majority opinion for several reasons.

One: Although the majority opinion purports “not at this time to express any opinion as to whether the charitable immunity doctrine is or is not the law of this *81 state,” as applied to charitable hospitals, it occurs to me that, under the facts stated in the majority opinion, it does, in effect, repudiate such doctrine.

Two: The majority opinion purports to support the decision therein upon the proposition of law that a charitable hospital corporation is liable for the negligence of persons in a managerial or supervisory capacity in failing to employ proper instrumentalities and facilities, as a result of which injury or damage occurs to a patient. However, the majority opinion cites no evidence of any negligence on the part of any person in a managerial or supervisory capacity with regard to such “instrumentalities and facilities,” which are alleged to have resulted in injury to the patient. In fact, the evidence recited negates any negligence on the part of such persons. The negligence, if any, was in the preparation of the purported novocaine anesthetic, and this, the majority opinion states, “was prepared, placed in a container and labelled by an employee of appellant,” and was delivered to the doctor for injection by another employee. [My emphasis.] In my opinion, these facts clearly distinguish the case at bar from those cited and relied upon in the majority opinion.

Upon this proposition, the majority opinion cites and quotes, with approval, from the case of Medical and Surgical Memorial Hospital v. Cauthorn (1950, Texas Civ. App.), 229 S. W. 2d 932 . However, in that case the court clearly distinguished the circumstances under which a hospital, as distinguished from its agents and servants, would be held liable for negligence. The court stated:

“ . . . [A] hospital is liable to a patient for the failure to provide proper and safe instrumentalities for the treatment of ailments it undertakes to treat, because such is in the conduct of the institu *82 tion. The agents and servants do not supply the instrumentalities. It is the institution that does that.

...” [My emphasis.]

As previously noted, in the case at bar the majority opinion recites no evidence that anyone connected with the management of the hospital was negligent in either the procuring or processing of the novocaine, which is alleged to have injured the patient. To the contrary, it occurs to me that the only reasonable inference which may be drawn from the evidence is that, if there was negligence or error in the processing of the novocaine, such negligence or error was solely that of the “agents and servants” of the hospital, for which, under the prior decisions of this state, the institution itself is not liable. 1

Three: My strongest objection to the majority opinion is that it not only affirms a judgment in damages against a charitable hospital for error or negligence, which is assumed to have existed on the part of the agents and servants of the hospital, the majority opinion resorts to an application of the doctrine of res ipsa loquitur to establish an inference or presumption that there was any negligence at all on the part of the hospital or its agents and servants. It is my opinion that the application of the doctrine, under the circumstances of the case, was error. And, further, I fail to comprehend how the doctrine of res ipsa loquitur can be applied without abrogating the charitable immunities doctrine, since under the doctrine of res ipsa loquitur no issue is contemplated as to whether the negligence presumed is that of an employee as distinguished from that of his respondeat superior.

*83 The limited facts and the certain scientific principles which were involved in the early English case of Byrne v. Boadle (1863), 2 H & C 722, 159 Eng. Reprint 299, cited in the majority opinion, wherein a barrel rolled out of an opening in the second floor of a building, is one thing; the operation of a hospital is quite another. The latter involves too many people of varying degrees of responsibility to the hospital, and too many human factors and frailties, which must be considered in the treatment of a patient in a hospital to warrant the application of the doctrine of res ipsa loquitur. 2

The care and treatment of the patients involves first, and foremost, the doctor, over whom the hospital has very little control. There are interns, over whom the hospital may have more, but very little, control. There are nurses, upon whom the hospital must rely primarily for the care and treatment of the patients. Yet, the nurses are also under the control of the doctors whose patients are the patients of the hospital. Then, there are student nurses, nurses’ aids, practical nurses, volunteers, orderlies, a varitable galaxy of human personalities of varying skills, upon whom the hospital must rely.

Consider the human errors which might reasonably result in the limited area of the communication between doctor and nurse, over which the hospital would *84 have almost no control. The handwriting of doctors is notoriously illegible. Because of this illegibility, and the practice of doctors to use abbreviations in their written prescriptions, a nurse may confuse digitoxin with digoxin (or digitalis). She confuses the abbreviation for gram (gm.), or the abbreviation for teaspoonful (tsp.) for tablespoon (tbs.). Or, she mistakes the direction for an intravenous injection (IV) with that for an intramuscular injection (IM).

Similar errors, rooted in human frailty, might occur when a nurse calls a doctor by ‘phone regarding the condition of a patient and medication is on an oral or telephone order. For example, a doctor may say castor oil, but a nurse hears camphor oil. He says 15 milligrams of a drug, but she understands it as 50 milligrams. He says argyrol; she interprets it as agoral. He says pavatrine; she hears it as papaverine. He says signemycin, she hears it as sigmagen.

To complicate all this, there is the unremitting pressure of a shortage of nurses and the multiplicity of new drugs, and of patients. The nurse has increasingly little time to handle her duties, yet, she must know much more about many more drugs than ever before. In the ten-year period from 1951 through 1960, it is said that an average of 357 new drugs and 106 new dosage forms (ampules, for example, instead of tablets) were produced every year. It has been estimated that three out of every four prescriptions written today are for drugs and drug forms that did not exist 25 years ago. It is difficult enough for trained pharmacists to keep pace with all the new drugs and their uses. It is still more difficult for nurses, who have many other duties besides their pharmacy work which they are required to do as professionals, in the employ of hospitals.

*85 Or consider the circumstance where the patient himself is largely responsible for his own injury or fatality. There is the patient who wilfully refuses to follow the instructions of the nurses. He may secretly take food, alcohol, narcotics, or other drugs which are prohibited to him. Or he may profess to take medication which he does not take. He may get out of bed and over-exert himself, or open a window and over-expose himself, from which complications, such as pneumonia and death, may occur. In each of these events the cause of injury or death would probably remain unknown to the management of the hospital and might remain unknown to its agents and servants.

Too, there is the known fact that the human body is such that it responds differently to the same medication and treatment. Thus, untoward results frequently occur, which are beyond explanation.

The above are only a few circumstances and reasons which, in my opinion, demonstrate that even though a charitable hospital may be held liable for the negligence of persons in managerial or supervisory capacities for their failure to provide proper instrumentalities used in the operation of a hospital, the hospital cannot be held liable for the negligence of all its agents and servants, over many of whom it has only limited control; and there is much less reason, grounded upon both public policy and the rules of evidence, why such hospitals should be charged with the burden of proving their lack of negligence, under the doctrine of res ipsa loquitur, merely because a patient experiences an untoward result from his care and treatment.

Four: Finally, in my opinion, if the rule of liability as applied to charitable hospitals is to be so drastically changed, the change in public policy should be effected *86 by an act of the legislature, and not by a decision of this court.

Note. — Reported in 196 N. E. 2d 274 .

. St. Vincent’s Hospital v. Stine (1924), 195 Ind. 350 , 144 N. E. 537 .

. “The doctrine of res ipsa loquitur, which is recognized in almost all jurisdictions, is that, where the thing which caused an injury is shown to he under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from want of care.” 65 C.J.S. §220(2), p. 987.

“As a general rule, the doctrine of res ipsa loquitur is inapplicable unless the management and control of the injuring agency were exclusively in the person charged at the time of the accident or, according to some authorities, at the time of the negligence.” 65 C.J.S. §200(8) bb., p. 1014. [My emphasis.]