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Judge v. Rockford Memorial Hospital

MAY 8, 1958.




Appeal from the Circuit Court of Winnebago county; the Hon. WILLIAM R. DUSHER, Judge, presiding. Affirmed.


The plaintiff, Helen Judge, a registered nurse, brought suit against the Rockford Memorial Hospital, a corporation, and Florence W. Erdmier, Director of Nurses at the hospital, charging libel, and seeking to recover damages resulting from a certain alleged libelous letter written by Florence W. Erdmier, as as Director of Nurses, the plaintiff alleging injury in her reputation, and resulting inability to obtain employment. A trial was had before a jury, and at the close of all the evidence, on the defendants' motion for a directed verdict the court allowed the motion, directed a verdict, and entered judgment for the defendants. No questions are raised on the pleadings, and they need not be set forth in detail.

The plaintiff appeals, contending that the alleged writing is libelous on its face, and, therefore, malice is imputed; the writing was not a privileged communication; the question of libel is a question for the jury to determine, and it may be determined from the writing itself as well as from extrinsic evidence; and that the question of malice should have been submitted to the jury under proper instructions.

The defendants contend, inter alia, that the alleged libelous letter is qualifiedly or conditionally privileged, and, hence, even if the communication were libelous per se, the burden was on the plaintiff to prove malice in fact, and since there was no proof, either directly or by any inference most favorable to the plaintiff, of malice in fact, the trial court was not in error in directing a verdict for the defendants.

There are certain other points involved, but in the view we take it will not be necessary to consider them.

The material evidence discloses that the plaintiff, a Registered Nurse, was intermittently engaged as a private duty nurse by various patients of Rockford Memorial Hospital for the period commencing in August or September, 1955 and extending through June 2, 1956, and during those times practiced her profession in the hospital as a private duty nurse. She was a member of the Nurses' Professional Registry, Rockford.

The defendant, Florence W. Erdmier, Director of Nurses at the hospital, was charged with the supervision of all nursing care, including that of private duty nurses, administered to patients in the hospital.

On April 7, April 10, and May 17, 1956, Mrs. Erdmier received from the hospital pharmacist narcotics loss reports, each reporting the loss of one 30cc vial of demerol, a narcotic, on each day. On May 17, 1956, Mrs. Erdmier talked to the pharmacist at the hospital, after the third loss report. She also started checking into the records of the nurses who had been on duty on the floor where the losses occurred.

One of the narcotics loss reports was signed by Adeline Mangiracini, who appeared as a witness for the defendants, and she testified she was employed as general charge nurse on the 3:00 p.m. to 11:00 p.m. shift of May 17, 1956, on a certain floor and that Mrs. Judge was working as a private duty nurse on the same floor at the same time. She said that at the end of her shift she checked the narcotics cabinet and found a vial of demerol missing. The discovery was made around a quarter to eleven p.m. During the course of the evening, earlier, she had occasion to go into the narcotics cabinet and the vials of demerol were all there then. The loss was discovered at the end of the shift. It was customary for the general staff nurse or medication nurse to check the cabinet at the end of each shift.

Mrs. Erdmier then checked the records of the nurses on the floor where the losses occurred. In checking Mrs. Judge's record, among others, she discovered 22 or 23 prior instances where Mrs. Judge had failed properly to record the administration of narcotics to patients which, from the narcotics record, she had withdrawn from the supply on the floor. There were three prior instances where she had improperly failed to record administering demerol to the patient, — on November 24th, and 25th, and December 18, 1955, though having, from the narcotics record, withdrawn demerol from the narcotics cabinet. Mrs. Judge testified she had in fact administered it (or wasted it), but had not recorded the administration on the patient's or nurse's record. Mrs. Judge had withdrawn 6ccs of demerol (and she says administered it) after the doctor had ordered demerol stopped as a medication for one patient, and there were 18 or 20 other prior instances where she had withdrawn codeine, also a narcotic, and had failed to record administering it. Normal hospital operating procedures required that the nurse record on the narcotics record the withdrawal of any narcotic, and then record on the individual patient's record, or nurse's record, the administration thereof to the patient. The plaintiff offered no particular explanation of the at least apparent deficiencies in methods of record keeping, or what happened in those cases where she had withdrawn narcotics but had no record of administering such to patients, or wasting it, except as to the foregoing demerol instances where she said she in fact administered it (or wasted it), but did not record the same. She did deny ever taking any demerol from the hospital. Accurate records and perpetual inventory of narcotics and the handling thereof are obviously necessary for many reasons, including the doctor's information, the patient's welfare, charging the patient, and inspection by the Federal Bureau of Narcotics. Mrs. Judge was an experienced nurse and knew the normal operating procedures.

On May 20, 1956, Mrs. Erdmier called Mrs. Judge into Mrs. Erdmier's office and recounted to her the matter of the demerol reported lost. She pointed out that Mrs. Judge had on prior occasions failed properly to record narcotics and the importance of keeping accurate records of medications given by the nurse. Then Mrs. Erdmier told Mrs. Judge that from then on she would have to have a nurse in attendance when she was withdrawing medication from the narcotics cupboard, — that henceforth, she, Mrs. Judge, was not to go into the narcotics cabinet without some other nurse present. Mrs. Judge responded "that will be all right." She did not at that time offer any protestations or explanations as to her methods of record keeping or the disposition of any questioned narcotics.

Either on June 2, 1956, or shortly thereafter, Mrs. Judge having by then finished a case she had been employed on, Mrs. Erdmier called the Nurses' Professional Registry, Rockford, and asked that Mrs. Judge not be assigned as a private duty nurse to Rockford Memorial Hospital in the future.

The Grievance Committee of the Registry then asked Mrs. Erdmier to write a letter, which she did and personally delivered to the Registry. The letter of June 6, 1956, complained of in this case, is the letter written ...

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