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District Court of Appeal, Second District, Division 2, California.

TIMBRELL et ux. v. SUBURBAN HOSPITAL, Inc., et al.a1

Civ. 8533.

Decided: October 10, 1934

Kidd, Schell & Delamer, of Los Angeles, for appellant. Arthur J. Speight and H. B. Cornell, both of Los Angeles, for respondents.

Plaintiffs, husband and wife, brought suit against defendant hospital and defendant McGovern, a nurse, for injuries received by Mrs. Timbrell while in the hospital following a Cæsarian operation. Hot compresses and hot water bottles had been applied to the patient and resulted in burns, which later required a skin-grafting operation. The jury returned a verdict in favor of defendant McGovern and against defendant hospital. From judgment entered upon the verdict, the latter appeals.

The evidence is such that the jury was justified in concluding that the injuries complained of were caused either by one of the nurses regularly employed by the hospital or by one of two “special” nurses called in by the hospital to care for the patient after the operation. Defendant McGovern, one of the “special” nurses, was the only nurse joined as defendant, and the jury by its verdict absolved her of negligence contributing to the injury. However, since she was not the only nurse caring for the patient during the time within which the burns were received, the verdict in her favor did not exonerate the hospital. The other “special” nurse was called in by the hospital at 7 o'clock in the morning preceding the operation. Neither of the plaintiffs requested or authorized the hospital to employ a special nurse on behalf of Mrs. Timbrell, and plaintiffs' physician merely told the hospital that the patient “ought to” or “must” have special nurses. Appellant suggests that such special nurse was not an employee of the hospital so as to render the latter liable. The facts are so similar to those in the case of McBride v. Clara Barton Hospital, 75 Cal. App. 161, 241 P. 941, as to require us to conclude that the special nurses so engaged were employees of the hospital, and that the latter was responsible for their negligence which proximately contributed to the patient's injuries.

An offer by defendants to prove the custom of hospitals with reference to engagement of special nurses was properly rejected. McBride v. Clara Barton Hospital, supra.

Appellant requested instructions on the question of the physician's actual or ostensible authority to employ special nurses on behalf of plaintiffs so as to absolve the hospital of liability for their acts. Even when viewed in the light most favorable to appellant, the evidence was not such as to justify or require the court to give the instructions requested, under the authority above cited.

The court in its instructions assumed that the patient's injuries were burns. Appellant called an expert witness who testified in response to a hypothetical question that “it is possible that that could have been the herpes condition there.” Herpes was described as “a condition involving the nerve.” The expert witness did not see the patient. Her physician and attending nurses testified that the injuries were burns. The court had a right to conclude that the injuries were burns, in the absence of evidence of greater substantiality than that offered by appellant, and its instructions in that regard were not erroneous.

The court correctly instructed the jury on the doctrine of res ipsa loquitur. The patient was unconscious during the entire time that the injuries were being inflicted and for several days afterward, and that doctrine was clearly applicable. Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436. Appellant requested an instruction to the effect that the said doctrine does not operate to change the burden of proof, which was refused. The jury was nowhere told that it did shift that burden, and, since it was elsewhere instructed that “it is incumbent on the plaintiffs to prove their case by a preponderance of the evidence,” it does not appear that such refused instruction would have clarified the legal principles by which the jury was to decide the case.

The court gave the jury several instructions of which appellant complains because they in effect made the hospital and nurses insurers that the patient would receive the necessary care and that she would not be burned. They are as follows: “[7] I instruct you that it is the duty of a hospital operated for profit such as the defendant, Suburban Hospital, Inc., is in this case, to employ only competent nurses, and employees and to treat all patients with such skill and care as ordinarily obtained in the conduct of such institutions and to protect the patients in manner and with such a degree of care as their condition may render necessary, and such obligation should be in proportion to the physical and mental condition of the patient rendering her unable to look after her own safety. * * * [9] You are instructed that it was the duty of the nurse or nurses of the defendant, Suburban Hospital, Inc., who placed plaintiff Evelyn M. Timbrell on the hot water bottle or other hot instrumentality which burned her, to observe the effect of said hot water bottle or other instrumentality and to properly regulate its heat, just as much as it was their duty to test the temperature of said hot water bottle or other instrumentality and to ascertain if it was in good working order prior to its being used on plaintiff Evelyn M. Timbrell. This duty was a continuous one and for a failure to observe it the defendants must be held liable. * * * [11] I instruct you that the duty of a nurse in a private hospital conducted for gain and as the agent of such a hospital is a continuous duty, and if she is dealing with a patient unable to care for herself it is her duty to observe the effect upon the patient of the application of any remedy such as a hot water bottle or like instrumentality used in applying heat to the body of the patient as much as it was her duty to test its temperature in the first instance. The power of resistance and the condition of the patient must of necessity have much to do with the application of remedies, either by a physician or nurse, and this duty could only be observed by constant and unremitting care and attention which is just as obligatory on the nurse as is the duty of applying the remedy directed by the physician in charge, and if the nurse fails in this duty and plaintiff is injured thereby, her employer, if such employer was the hospital, is responsible for the negligence. * * * [31] The duty of a nurse is a continuous one. It was as much her duty to observe the effect of the remedy as it was to apply the remedy in the first place, and this duty could only be observed by constant and unremitting care and attention. If you find that the nurse in charge of the plaintiff at the time of the burning did not meet this duty, you will find that her negligence was the cause of the injuries, and the resulting damages, and if you further find that this nurse (regardless of what nurse it was), was not hired by the plaintiffs or either of them, or if you find that the plaintiffs, or either of them, did not authorize anyone acting as agent of the hospital to hire this nurse before the burning occurred, then you will find the hospital liable for the resulting damages to the plaintiffs.”

Instructions numbered 9 and 11, supra, and 8 are also complained of because they omitted the requirement that the negligence must be the proximate cause of the injury; and No. 8 is likewise declared to be deficient in not requiring that the acts be done in the scope and course of the servant's employment. That instruction, in referring to “proper” care, is also said to be erroneous as fixing a degree of care beyond that required of a nurse under the authority of Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654. Instruction No. 8 is as follows: “You are hereby instructed that it was the duty of the defendant, Suburban Hospital, Inc., and its agents, servants and employees to exercise due and proper care in the manner in which the water bottle or bottles or other instrumentality or instrumentalities used by it in the treatment and care of the plaintiff Evelyn M. Timbrell were prepared, and in the application and use thereof on the body of said plaintiff, so as not to cause her injury, and if you find that such due and proper care was not exercised and used you shall find for the plaintiffs to such amount as you shall determine they are entitled.”

It cannot be said that any or all of the instructions above quoted, when read and considered in the light of the court's entire charge, could have misled or confused the jury on any essential legal principle. When a woman is unconscious in a hospital following the birth of a child, and suffering from a toxic condition as shown by the evidence here, it is obvious that, if those who are charged with her care, knowing her helpless condition, use hot compresses and hot water bottles, they must use them in such a way and keep watch of them so that they will not burn the patient. There is nothing to suggest that there was any efficient intervening cause that contributed to the burns herein referred to, or that any one who was caring for the patient was not acting within the scope and course of her employment.

It does not appear that the other questions raised by appellant require discussion, in the light of the views above expressed.

Judgment affirmed.

SCOTT, Justice pro tem.

We concur: STEPHENS, P. J.; DESMOND, J.