Broz v. Omaha Maternity & General Hospital Ass'n , 96 Neb. 648 ( 1914 )

Rose, J.

This is an action to recover $40,000 for alleged negligence resulting in the death of Adolph F. Broz, a farmer who, with his wife and two children, had resided on a farm in Saline county. Plaintiff is the administratrix of his estate. The Omaha Maternity & General Hospital Association, defendant, is a corporation conducting at Omaha a hospital for private gain. Broz was a patient therein from April 18, 1910, until June 21, 1910, paying for his room and care $15 a week. In the petition it is alleged that Broz was knowingly admitted as a patient when suffering from a mental disorder which caused at times a delirious condition impelling him intermittently to leave his bed and otherwise to act irrationally; that while a patient of defendant he took poison, the result being fatal; that defendant was negligent in permitting him to remain for a long time unattended and unguarded in his room and in the hallways of the hospital, and in negligently leaving in an exposed and unguarded place the poison which he-took; that, after defendant was apprised that he had taken poison, it negligently failed to administer proper remedies and antidotes; that the facts pleadéd constitute a negligent omission of duty and a breach of defendant’s implied undertaking to furnish and supply him with all the care, nursing, medical treatment and oversight necessary, suitable and proper for him in view of his known physical and mental condition. In its answer defendant denied negligence, but admitted that Broz was affected with a mental disorder when taken to the hospital; that about midnight June 19, 1910, he was found in his room dangerously ill, and nurses then on duty were soon afterward apprised that he had taken poison; that he died June 21, 1910. The jury rendered a verdict in favor of plaintiff for $7,000. From a judgment for that sum defendant has appealed.

The first assignment of error is directed to the admission in evidence of standard tables of expectancy of life.. On this point defendant says: “As a matter of fact Broz, was suffering from a mental disorder of such a nature that he could never fully recover, and his chances of a partial recovery were none too good. The probable duration of the life of a person in such a condition is very uncertain and cannot be shown by the introduction in evidence of the ordinary life tables, for those tables are applicable only to persons in good health.” In support of this argument, City of Lincoln v. Smith, 28 Neb. 762, and Roose v. Perkins, 9 Neb. 364, are cited. The question now presented was not involved in either of those cases. While good health was shown, neither opinion contains the statement' that mortality tables are inadmissible-in absence of proof of that fact. As data or evidence, tending to show expectancy of life, mortality tables are not conclusive. City of Friend v. Ingersoll, 39 Neb. 717; Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545; City of Joliet v. Blower, 155 Ill. 414; Central R. Co. v. Crosby, 74 Ga. 737; Scheffler v. Minneapolis & St. L. R. Co., 32 Minn. 518. They are competent evidence to aid the jury or court in determining the probable duration of life when that question is in issue, and may properly be submitted with other evidence, showing health, age, existence of disease, physical and mental condition, vocation or employment, and other pertinent facts.

As evidence, the effect of mortality tables, if any, is determinable by the triers of fact. City of Friend v. Ingersoll, 39 Neb. 717; City of South Omaha v. Sutliffe, 72 Neb. 746. Proof that the person whose. expectancy of life is under consideration conforms to the standards of health and vigor adopted in compiling mortality tables is not essential to their admissibility.

Evidence of disease or of ill health or of hazardous employment may impair or destroy the probative effect of tables of expectancy of life, but it does not make them inadmissible. Arkansas M. R. Co. v. Griffith, 63 Ark. 491; Greer v. Louisville & N. R. Co., 94 Ky. 169; Birmingham M. R. Co. v. Wilmer, 97 Ala. 165; Mary Lee Coal & R. Co. v. Chambliss, 97 Ala. 171; Coates v. Burlington, C. R. & N. R. Co., 62 Ia. 486. In the Arkansas case cited the court said: “The question is whether we can still malte the tables of service in making the calculation, notwithstanding it is shown that plaintiff’s condition and health were below the average, and that, in fact, he was not an insurable risk. This is an element of uncertainty that must necessarily be found in the case of one of feeble health and not insurable, in all cases, whether we call to our aid the mortality tables or not. When we do so, however, when, by reason of enfeebled physical condition, the standard tables are not strictly applicable on that account, yet they are more or less efficient aids in arriving at an approximation of the truth, and that is the best that can be hoped for after all.” This assignment of error is therefore overruled.

Another assignment of error challenges the admissibility of statements by Broz that the poison was on a table in his room, and that he took it, thinking it was his medicine. Over objections of defendant, statements of this nature were proved by Dr. Mares. There is testimony tending to show: Dr. Mares Avas a brother-in-law of Broz. The poisoning was discovered before midnight. ' About 8 o’clock the next morning Dr. Mares was notified, and promptly went to the hospital. Upon his arrival he conversed Avith the head nurse. He testified: “I asked the head nurse what happened, and she told me that Mr. Broz took poison, and that it was bichloride of mercury. I asked her how could she tell it was bichloride of mercury, and she told me she could tell by the symptoms; and I asked her, ‘How did he get it?’ She told me to go in his room and ask how and where he got it and what it was.” Dr. Mares went to the room of the patient, interviewed him, and reported the conversation to the head nurse, who said: “That is what I thought.” The statements of Adolph F. Broz were thus reported by Dr. Mares In his own language, as follows: “When I came in the room I said, ‘Adolph, what did you do, and what did you do it for?’ and he said, ‘I did not do anything.’ He said, ‘I took four tablets oil of tbe tray on the table.’ I-Ie pointed at the table, and he said he thought it was his medicine, and I asked him what kind they were, and he said they were blue in color, and a little smaller than usual. And then he told me that he took them because lately they were changing medicine on him, and so he thought it was his medicine, and I asked him if he used to take so many, and he said, no, he only took two, and sometimes only one, and those were grayish in color and a little bit larger. And then he also told me that he drank a glass full of something that tasted oily. I asked him, ‘Did it make you sick?’ and he said, ‘No, not right away,’ but in a few minutes he started to get cramps and pains in his stomach and started to vomit.”

The question is: Did the trial court err in admitting this testimony and other proof of a similar nature? It is argued that defendant is not bound by such statements; that Broz was under the care óf his own physician, and that the latter’s instructions were obeyed by the nurses and other employees of the hospital; that Broz, under specific directions of his physician, was allowed the freedom of his room and of the halls in the hospital; that bichloride of mercury was used in the hospital as an indispensable disinfectant, and that it was kept for that purpose in a sinkroom, where Broz found the tablets; that he took the poison with suicidal intent, there being at the time no. reason to suspect that he would do so. Defendant adduced proof in support of the positions thus taken. If,, however, the statements • of Broz were properly admitted,, there is evidence of negligence on the part of defendant. Intermittent mental infirmities of the patient were-pleaded in the petition and admitted in the answer. The-pleadings, evidence and circumstances justify a finding-that he was admitted , to the hospital under an implied obligation that he should receive such reasonable care and attention for his safety as his mental and physical condition required. The physician employed by him did not relieve the hospital of responsibilty for negligence on its. part, if any. The patient was under the personal observation of his physician only a small portion of the time. In the latter’s absence and during emergencies he was under the care of the nurses and the interne who were employees of the hospital. Within the scope of their employment their employer is legally responsible for their negligence to a patient. Wetzel v. Omaha Maternity & General Hospital Ass’n, ante, p. 636. The patient’s physician did not manage nor control the hospital, and he is not liable for the negligence of hospital nurses and internes, if he had no connection with any negligent act. Harris v. Fall, 177 Fed. 79, 27 L. R. A. n. s. 1174, and note. In absence of the physician employed by Broz, and in absence of the latter’s wife, and of his relatives and friends, while he was under the exclusive care of hospital nurses, he took bichloride of mercury and died as a result. These facts are indisputably established. Several hours after the poison had been taken, the hospital authorities in the meantime having had ample time to make an investigation, Dr. Mares called upon the head nurse, and, according to- his testimony, was told that the patient had taken poison. “How did he get it?” was then asked. This was a proper inquiry by the patient’s brother-in-law. It was directed to the head nurse, an employee of defendant. She was the person who would be most likely to know the truth. The inquirer had a right to know the fact. The nurse, instead, of fully answering the question, directed the inquirer to go to the patient’s room and ask how and where he got the poison and what it was. Dr. Mares did as she directed, returned, and told her what the patient said. She replied: “That is what I thought.” This is the story of Dr. Mares. Were the statements of the patient, in connection with what the head nurse said, admissions binding on defendant? The expression, “That is what I thought,” may fairly be construed to imply previous knowledge on part of the head nurse and to indicate the approval of the patient’s version of what he took and where he obtained it. An eminent text-writer says: “The admissions of a third person are also receivable in evidence, against the party who has expressly referred another to him for information, in regard to an uncertain or disputed matter. In such cases, the party is hound by the declarations of the persons referred to, in the same manner, and to the same extent, as if they were made by himself.” 1 G-reenleaf, Evidence (16th ed.) sec. 182.

Even if no reply had been made by the head nurse to the statements tending to show negligence on the part of defendant’s employees, silence might be considered an admission, under the circumstances, since the head nurse would naturally deny statements implying negligence, if untrue. 16 Cyc. 956. Defendant is a corporation and -could only act through officers, agents or servants, and it is bound by what they do in the performance of their ■duties. Where a hospital patient takes poison at night in the absence of his physician and friends, while he is under the exclusive care of nurses and internes, harsh and technical rules of evidence should not be enforced to -exclude proper testimony tending to throw some light on material facts which, on account of the pecuniary interests and the reputation of the hospital, there might be a temptation to conceal. The conclusion is that there was no error in overruling objections to the admissions or decía-.' rations proved.

It is further contended that there was no evidence of negligence on the part of defendant in treating the patient after he had taken the poison, and that the trial court erroneously submitted the question to the jury. At night, during the absence of the patient’s physician, it was clearly the duty of the hospital interne, who was a physician, and the nurses in charge, to give such treatment and attention as the emergency demanded, when known. Defendant was prepared for such an exigency. One of the purposes of a hospital in assuming control of a patient, for private gain, Is to furnish promptly modern equipment, facilities and treatment. To avail himself of these advantages the patient left his farm in Saline county and entrusted himself to the care of defendant. The duties which such a hospital owes to a patient are commensurate with the responsibilities assumed. The approved rule is that a patient is generally admitted to a hospital, conducted for private gain, under an implied obligation that he shall receive such reasonable care and attention for his safety as his mental and physical condition, if known, may require. Wetzel v. Omaha Maternity & General Hospital Ass’n, ante, p. 636. Within the meaning of this rule, the interpretation which the trial court put upon the proof of negligence on the part of defendant in treating Broz, after he had taken bichloride of mercury, is approved upon an examination of all of the circumstance's of the case, and error in submitting the question to the jury is not affirmatively shown. It may fairly be inferred from all of the proofs relating to this subject that nurses were promptly apprised of the taking of the poison and that proper treatment was negligently delayed.

Another reason urged as a ground for reversal is the absence of evidence that Broz would have recovered, with an earning capacity justifying the verdict. A mere fitful or temporary mental disorder' will not be presumed to continue. Turner v. Rusk, 53 Md. 65; People v. Francis, 38 Cal. 183; Hall v. Unger, 2 Abb. (U. S.) 507; Leache v. State, 22 Tex. App. 279; Ford v. State, 71 Ala. 385. In the present case there is proof tending to show that the mental disorder was temporary and that the patient would have recovered, had he not taken poison. An earning capacity sufficient to support the judgment is also shown. On these issues the credibility of the witnesses and the weight of the evidence were questions for the jury, and in the respects mentioned no sufficient reason for setting aside the verdict has been suggested.

A direction to the jury submitting the question of negligence on the part of defendant in leaving Broz unattended in his room and in the halls is criticized as erroneous. In this connection it is insisted that the physician employed by Broz instructed defendant to allow him the freedom of his room and the halls, that employees of defendant did so, and that it is not chargeable with negligence for complying with instructions. The directions of the physician should be considered with the duty of the-hospital to give the patient- such reasonable care and attention for his safety as his mental and physical condition required. Defendant was not instructed to allow the-patient-, who had been suffering from a fitful mental disorder, access to a hospital sinkroom, where poison, in the form of medicine tablets, were kept. Whether there was negligence in allowing the patient access to such a place in the night, while unattended, was a question for the-jury.

The views taken in regard to the proofs and to the law applicable thereto result in the conclusion that there was. no prejudicial error in giving or in refusing instructions, to the jury.

Affirmed.