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Darling Ii v. Charleston Memorial Hospital

JUNE 30, 1964.




Appeal from the Circuit Court of Coles County; the Hon. ROBERT F. COTTON, Judge, Judge, presiding. Affirmed.


This action was brought by the plaintiff Dorrence Kenneth Darling II, a minor, by his father and next friend, Dorrence Kenneth Darling, to recover damages allegedly occasioned by the alleged negligence of the defendant, Charleston Community Memorial Hospital, an Illinois not for profit corporation, in the furnishing of hospital services to the plaintiff. Originally, there was another defendant, Dr. John R. Alexander, a medical doctor, — Count I being against the Hospital, and Count II against the Doctor. The ad damnum in each Count was $207,430. The injured plaintiff had ultimately lost one of his legs. The defendant's motions for directed verdict at the close of the plaintiff's evidence and of all the evidence were denied. The plaintiff's motion for a directed verdict at the close of all the evidence was allowed as to the issue of contributory negligence and denied in all other respects. The jury rendered a verdict for the plaintiff for $150,000. Prior to trial the plaintiff had settled with the other defendant, Dr. Alexander, the plaintiff receiving $40,000 in consideration of a covenant not to sue Dr. Alexander, and he had been dismissed as a defendant. The defendant hospital's motion for setoff in that respect, to which there was no objection, was allowed, after the verdict. The defendant filed a post-trial motion in arrest of judgment, for judgment notwithstanding the verdict, for a new trial, and for correction of the amount of the verdict and judgment. This was denied except as to the credit for the foregoing $40,000. The post-trial motion, briefly, urged the complaint, as amended at the trial, did not state a cause of action and is not sufficient to sustain a judgment for the plaintiff; there is no competent evidence, with its intendments most favorable to the plaintiff, to make a prima facie case against the defendant; there were errors in the voir dire examination of the jury, the verdict is clearly and palpably against the manifest weight of the evidence, the amount of the verdict is excessive and indicates passion, prejudice, and sympathy, the defendant's motions for directed verdict should have been allowed, the jury did not deliberate long enough, the court erred in permitting the plaintiff's amendments to the complaint at the close of the plaintiff's evidence, the ad damnum should have been reduced to $100,000, there were errors in the rulings on evidence, the issue of contributory negligence should have gone to the jury, there were errors in the instructions, and plaintiff's counsel abused the privilege of argument; and the amount of the verdict should be corrected to $100,000, or alternatively, there should be a $40,000 credit on the verdict. The court reduced the verdict to $110,000, and entered judgment for $110,000, from which this appeal is taken by the defendant hospital. The defendant hospital had made a motion to reduce the ad damnum of Count I to $100,000, alleging it was incorporated under the General Not for Profit Corporation Act of Illinois, it is operated as a charitable and scientific organization not for profit, and the only funds available to satisfy any judgment against it, other than trust funds held for specific uses and funds held for expansion, improvements, developments and such hospital purposes as the board of directors deems necessary, are the proceeds of an insurance policy, the limits of which are $100,000. This was supported by the affidavit of the hospital administrator, a copy of the liability policy, and a copy of the articles of Incorporation. That motion, uncontroverted, was denied. The post-trial motion, inter alia, had asked that the verdict and judgment be reduced to $100,000 for the same reasons, which motion, as indicated, was denied in that regard. The defendant's notice of appeal prays that we reverse the judgment and enter judgment for it, notwithstanding the verdict, or arrest the judgment, or allow a new trial, or reduce the judgment to $100,000.

The trial required approximately two weeks. The evidence was extensive, and the record, abstracts, and briefs here are lengthy.

On Saturday, November 5, 1960, the plaintiff, Dorrence Kenneth Darling II, was a student at Eastern Illinois University in Charleston. He was a member of the football team, and on that afternoon he was playing defensive left halfback during a game. A member of the opposing team threw a block at him, and he sustained a broken right leg. He was carried from the field on a stretcher to the field house and received emergency care from Dr. William Heath, a doctor associated with the university. He was then taken to the defendant Charleston Community Memorial Hospital, in Charleston.

On November 5, 1960 the Charleston Hospital had a forty-six bed capacity. It was a member of the American Hospital Association and was accredited by the Joint Commission on Accreditation. It was licensed by the State of Illinois. It had been open since September, 1957. The following hospital personnel were available in the medical-surgical area during the shifts designated:

1. 7:00 a.m. to 3:00 p.m. shift:

Two registered nurses — one was a supervisor and the other a medicine nurse — three licensed practical nurses, one graduate practical nurse, a female aid and a male aid.

2. 3:00 p.m. to 11:00 p.m. shift:

A hospital supervisor, two registered nurses, a medicine nurse, three licensed practical nurses and two male aids.

3. 11:00 p.m. to 7:00 a.m. shift:

One registered nurse, two licensed practical nurses, and one aid. On five nights out of the week, there was one additional registered nurse.

There was also a surgical department which had a registered nurse, a licensed practical nurse, and a female aid. The surgery and emergency room was on a call-back basis during the shifts from 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m. A registered nurse and a licensed practical nurse were subject to call during those shifts. The hospital also had a laboratory which was approved by the State of Illinois Department of Health. During the 7:00 a.m. to 3:00 p.m. shift, there were two full-time technicians, certified as American Medical Technicians, and one part-time technician. During the shifts from 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m., the lab personnel were on a call-back basis. Many tests could be performed and carried out in the laboratory. Also, the laboratory facilities of the Mattoon Memorial Hospital, Mattoon, and the Burnham City Hospital, Champaign, were available to the Charleston Hospital. Also available was a registered pathologist at the Burnham City Hospital. There was no orthopedic medical staff at the defendant hospital. There was no designated surgical staff, though at a medical staff meeting November 9, 1960, after the plaintiff's injury and while he was in the hospital, a certain other doctor had been appointed Chairman of the Surgical Division. Dr. Alexander had been "qualified" by approval of the Board of Directors of the hospital to perform surgery. There was an active medical staff. There was a consulting medical staff. There were two orthopedic surgeons, Dr. Ross and Dr. Peterson, of Champaign, on the consulting staff. The Medical Staff had an executive committee and a medical records committee. In evidence are photographs of certain parts of certain walls of the hospital indicating a sign "Medical-Surgical-Nursing," and also a list of the various laboratory tests available at the hospital.

The plaintiff was brought into the emergency room of the Charleston Hospital sometime between 3:00 p.m. and 4:00 p.m. Lelia Carroll, a surgical scrub nurse (sterile nurse who assists doctors), had completed her shift at 3:15 p.m., but had not left the hospital. Patricia Jenkins, the director of Nurses, found Miss Carroll before she had an opportunity to leave, and asked her to stay and assist in the emergency room. Dr. John Alexander, a graduate of the University of Illinois, was called and asked to come to the hospital. Dr. Alexander had been on the medical staff since the new hospital was started, and before that he was on the old Charleston Hospital staff. On this day, he was the doctor on emergency call. He examined the leg and had an X-ray taken. He diagnosed a comminuted (multiple) fracture of the right tibia and fibula (what he described as a "bad break"). Mary LaVan, a certified registered nurse anesthetist, was called to the emergency room. Also present in the emergency room, besides Mrs. LaVan, Doctor Alexander, and Miss Carroll, were Mrs. Bezruki, a nurse, and Steve Goodson, an orderly. Miss Carroll filled out a form entitled "Authority to Operate," and the injured plaintiff signed it while in the emergency room. He was then anesthetized. Miss Carroll asked Doctor Alexander if he wanted any stockinette (knitted cloth, like a stocking) to use under the cast, and he said "No." While Steve Goodson held the plaintiff's leg, Dr. Alexander wrapped muslin around it or part of it. Pursuant to Dr. Alexander's instructions, Miss Carroll applied traction by holding the patient's right thigh and pulling the leg towards the body. At the same time, Dr. Alexander applied countertraction by pulling the end of the patient's foot away from his body. When Dr. Alexander was satisfied that he had proper traction, he asked Mrs. Bezruki to take the position of Miss Carroll, and Steve Goodson to take his position and they continued to apply traction and countertraction. Dr. Alexander then applied the cast material ("Quick setting" cast, he called it). Eight plaster rolls were applied and then X-rays were taken to determine if there was good alignment and good reduction. After these X-rays had been taken and examined, the injured plaintiff was then returned to the emergency room and two more plaster rolls were applied. The cast covered the leg from a point three or four inches from the groin to the toes. The toes were left exposed. The leg was again X-rayed and there was good alignment and good reduction. The plaintiff was taken to a hospital room and placed in bed. This was a two-bed room and in the other bed was an elderly patient who, in Dr. Alexander's best recollection, was a "bladder case." Two pillows were placed under the injured plaintiff's right leg, and then Dr. Alexander ordered and placed over the cast, in order to help dry it, a heat cradle containing two fifteen watt bulbs. Pursuant to Dr. Alexander's order, the heat cradle was removed about twenty-four hours after it had been placed over the cast. The plaintiff was in the Charleston Hospital from November 5, 1960 until November 19, 1960. In evidence are a heat cradle, sample equipment used or available in casting, a bottle of Dr. John's cold-pain-fever pills, photographs of the emergency room, photographs of the patient's room, and a plat of the hospital. Various X-rays were in evidence but are not reproduced in the abstracts.

During this period the Charleston Hospital kept a complete record relating to the plaintiff. Included in the hospital record was the "nurse's record" or nurse's notes. For the Doctor's information, the nurses made many notations concerning their observations about the injured plaintiff's condition. Some of the principal notations from November 5, 1960 through November 8, 1960, when the cast was split in its entirety, were as follows:

1. November 5, 1960 — 4 p.m., chymar 1 cc — Heat cradle over rt. leg, and cast — demerol 2 cc — for pain — 6 p.m. S.R.D. 1 gm. — 7 p.m. demerol 2 cc — pain in leg — toes swollen — very restless — 10 p.m. — heat lamp to leg —

2. November 6, 1960 — 12 a.m., chymar 1 cc — foot very edematous — toes warm to touch — demerol 2 cc — 2 a.m. complains of pain in frax. limb — carbital given for pain — 2:35 a.m. still complains of pain — demerol given — 5 a.m. complains of severe pain in frax. limb — demerol 2 cc given for pain — 7 a.m. chymar 1 cc — carbital — complained of pain — 3 p.m. chymar 1 cc — complains of pain in leg — toes appear very swollen — color good and warm — appears blisters on his foot — 5 p.m. carbital — 7 p.m. Dr. Alexander here, cast cut at top of foot by Dr., foot elevated on 4 pillows, heat cradle removed —

3. November 7, 1960 — 12 a.m., chymar 1 cc — irrational — demerol 2 cc — complains of pain in frax. limb — 4 a.m. complains pain in injured limb, foot very edematous and dark, color better when placed on more pillows — 7:30 a.m. — carbital — 8 a.m. chymar — 8:30 a.m. demerol 2 cc., cold, pain, fever tabs. — Dr. Alexander visited — complains of pain in leg — 10 a.m. large blister on foot, toes swollen, states no feeling in toes on being touched — 10:30 a.m. restless — 2 p.m. complains of severe pain in leg, toes feel cold to touch and slight cynotic — 7 p.m. petromul — complaining of severe pain, toes very tight, becoming more dusky in color — Dr. Alexander here, cast cut approx. 3 inches up foot by Dr. — 9 p.m. moaning, unable to settle down — 10:30 p.m. complaining again of pain.

4. November 8, 1960 — chymar 1 cc — complains of severe pain in frax. limb — demerol 2 cc given for pain — 3 a.m. very restless — 5:30 a.m. carbital — foot and toes still swollen and cold — 6 a.m. demerol 2 cc — 8 a.m. cold, pain and fever pills — 9 a.m. Dr. Alexander visited — 10 a.m. complains of pain — 11:45 a.m. chymar 1 cc — 12 p.m. carbital — 1:30 p.m. Dr. Alexander here, cast on R. leg split on sides, retaped, and merthiolate added, also some blisters on foot opened — 5 p.m. complains of pain in leg — 8 p.m. carbital — complains of pain — 10 p.m. demerol 2 cc. —

Some of the notations therein from November 9 to the 19th were:

5. November 9, 1960: "still crying of pain" — "turning head from side to side and crying, rubbing face and hands, elbows very red from twisting and turning, begging for mother" — "begging for `pills' for pain in leg" — "very poor night, slept only short intervals after medicine" — "says he is in pain" — "complaining of severe pain in right leg after company left."

6. November 10, 1960: "complaining of pain in limb" — "patient asking for pain medicine" — "restless night" — "complaining of pain" — "complaining of pain" — "complaining of pain" — "crying of pain" — "poor afternoon" — "very restless."

7. November 11, 1960: "patient complaining of pain and moaning" — "poor night" — "complaining of pain" — "complaining of dizziness" — "complaining of pain in leg."

8. November 12, 1960: "complaining of pain in leg" — "complaining of pain in leg" — "complaining of pain in leg."

9. November 13, 1960: "complaining of pain in fractured leg" — "complaining of pain."

10. November 14, 1960: "complaining of pain in right leg" — "complaining of pain."

11. November 15, 1960: "complaining of pain in fractured leg" — "complaining of pain in leg" — "leg, foul odor."

12. November 16, 1960: "complaining of pain in right leg."

13. November 17, 1960: "complaining of pain in left leg."

14. November 18, 1960: "restless" — "complaining of pain in leg."

15. November 19, 1960: "medicine given for pain."

Dr. Alexander read the nurse's record. He also received telephone calls from various nursing personnel about the patient's condition. Dr. Alexander visited the patient many times, and he had left written orders for the nurses to follow during his absence from the hospital. The nursing staff carried out the doctor's orders. In his opinion circulation in the leg was satisfactory. He considered this bone setting a major problem, but not major surgery, and that he did not need a doctor assistant. He said he looked at the toes every day. Dr. Alexander testified that, during the plaintiff's stay in the hospital, he did not call any specialist in for consultation, because, in his judgment, everything was all right. The patient received SRD, being penicillin and another drug, chymar, being a drug to reduce swelling, demerol, being a narcotic for pain and relaxation, Dr. Alexander's cold-pain-fever tablets, chloromycetin, being an antibiotic, and carbital, being a sedative and tranquilizer, at various times. On November 8th, for example, from midnight to midnight, in a 24-hour period, demerol was given five times, carbital was given three times, and cold-pain-fever tablets were given three times.

On November 6, at approximately 7:00 p.m., Dr. Alexander cut a "notch" in the cast around the toes. At about 7:00 p.m., on November 7, he cut the cast approximately three inches up the foot. On November 8, between 1:30 p.m. and 3:00 p.m., he split the entire cast by removing a lengthwise strip from it. Dr. Alexander used a Stryker saw (a vibrator type saw) when he cut the cast. A cut on each side of the leg was accidentally made by the cast cutter. An antiseptic was put on and a sterile dressing. The saw was in evidence but a photograph thereof is not reproduced in the abstracts.

The injured plaintiff's parents, who lived in Collinsville, Illinois, arrived at the Charleston Hospital at about 8:30 or 9:00 p.m. on the day of his admission. His father signed the form entitled "Authorization for Medical and/or Surgical Treatment" and "Authorization for Release of Information." They visited their son on many occasions while he was in the hospital. Their last visit was on Saturday, November 19, and the patient left that day, by ambulance for Barnes Hospital in St. Louis. Dr. Alexander put back in place, over sterile dressings, the part of the cast that had previously been cut and removed, prior to that trip.

At Barnes Hospital, he was under the care of Dr. Fred Reynolds, the head of orthopedic surgery at Washington University School of Medicine and Barnes Hospital. He remained at Barnes Hospital until December 16, at which time he was permitted to return to his home. He was readmitted to Barnes Hospital on December 27. He remained there two days and again returned to his home. He was readmitted to Barnes Hospital on January 16 and remained until February 7. On January 23, his right leg was amputated at a point below the knee.

The complaint, as amended prior to trial, so far as now material, stated, in substance, at the time of trial and immediately before the amendments made at the close of the plaintiff's evidence:

"4. That the defendant corporation then owed to the said plaintiff a duty to use that degree of skill in the care of such patient as would be exercised by institutions of like kind and character in that county; but that in violation of the duties which the said defendant owed to the plaintiff, the said defendant was guilty of one or more of the following negligent and careless acts or omissions which directly and proximately caused injury and loss to the plaintiff:

A. Permitted surgery to be performed in its operating rooms upon the plaintiff without the consent of said patient or, although the patient was then a minor, the consent of his parents;

B. Permitted the defendant, John D. Alexander, to perform orthopedic surgery upon the plaintiff although the said defendant was not skilled or qualified in the performance of such surgery;

C. Permitted assistance in such surgery by a layman not admitted nor licensed to practice medicine in the State of Illinois;

D. Failed to set up standards which would have required the head of the orthopedic staff of such hospital to check upon the operative procedures employed, the casting of the limb, and the post-operative care, so that as a result of such failure improper techniques were followed and utilized;

E. Permitted, or caused, a heat lamp to be used in the drying of such cast in such a manner as to cause blistering of the plaintiff's affected extremities, thereby causing blistering, edema, and subsurface infection;

F. Permitted a cast to be applied at a time which was far too early for the patient's welfare, when the flesh was bruised and swollen, and permitted it to be applied in such a manner as to create and cause infection, and the said defendant by its agents and servants actively assisted in such casting procedures;

G. Used student nurses for post-operative care of the patient who were unskilled in bone injuries and infections resulting therefrom so as not adequately to recognize the presence of infection and to provide care for the patient, or capable of preventing or checking the spread of infection;

H. Used nurses for post-operative care who were not skilled in the recognition of the presence of infection so as to direct the existence thereof promptly to the attention of the attending physician;

I. Used nurses for post-operative care possessing insufficient experience and skill to recognize the significance of the symptoms of infection displayed by the patient;

J. Failed to notify the attending physician of the vile odor of the injured area, the patient's constant complaints of pain, and other symptoms which would have apprised the attending physician of the existence of a state of infection;

K. In the light of the symptoms clearly indicating the presence of infection, failed to require consultation with or examination by competent members of the hospital surgical staff and require steps to be taken to prevent the spread of such infection;

L. Failed to use that degree of skill required by law of hospitals in the post-operative care customary for cases of like kind and character in said community;

M. (Withdrawn during the trial.)

N. (Withdrawn during the trial.)

O. That the defendant hospital failed to conform to and to observe one or more of the following standards customarily required of and adhered to by accredited hospitals in the area involved at that time:

(1) Failed to provide a licensed, graduate professional nursing service available to all parties at all times, and particularly to the plaintiff here;

(2) Failed to provide qualified personnel adequate to supervise and conduct the supervision of medical patients and, in particular, the plaintiff here;

(3) Failed to make adequate provision for hematology and serology examinations as pertains to this plaintiff, and to conduct such other blood tests and examinations as would have disclosed the progressive deterioration of the circulation in this plaintiff's right leg;

(4) Failed to maintain a modern and adequate medical library relating to modern orthopedic methods and casting techniques;

(5) Permitted the defendant physician to be appointed as a member of the active staff when he was not qualified professionally to perform orthopedic surgery, which, as a member of such staff, he was permitted to do;

(6) Failed, through its medical staff, to review the treatment rendered to the plaintiff and violated its duty to make certain that the attending physician in this case did not fail in the matter of calling consultants as needed, there being doubt as to the best therapeutic measures to be utilized, and it being apparent under the circumstances of this case that a qualified orthopedist should have been called into consultation;

(7) Failed to have reports of a tissue committee on orthopedic cases previously handled by the said physician, in order to determine his qualification to do surgery of that type and character, and failed to have monthly meetings to review surgical procedures following in this and in other cases;

(8) Failed to have a sufficient number of licensed, graduate, professional nurses for the bedside care of all patients at all times, and thus failed to have such nurses available for bedside care of the plaintiff at all times capable of recognizing the progressive gangrenous condition of the plaintiff's right leg, and of bringing the same to the attention of the hospital administration and to the medical staff so that adequate consultation could have been secured and such conditions rectified."

To these charges the defendant had filed its answer. The answer, so far as material, admitted the defendant Hospital owed to the plaintiff the duty to use that degree of skill in the care of such patient as would have been exercised by institutions of like kind and character in the County at that time, alleged that it did use such degree of care and skill, and denied the remaining allegations of paragraph 4. As to the amendments at the trial there was a motion for leave to amend certain parts of paragraph 4, made at the close of the plaintiff's evidence. Leave was granted. This was over the objection of the defendant hospital. Nothing was changed in any of the subparagraphs A through O specifying the alleged breaches of duty charged against defendant, except in subparagraph "O" where the words "customarily required of and" were stricken, and the words in the opening part of paragraph 4 "as would be exercised by" were changed to "required of." The defendant interposed an oral, and later a written, motion to dismiss the complaint, as thus amended. The court overruled this motion. The defendant then moved for a continuance, as urged by it, to enable it to prepare its defense to the complaint as thereby amended. This motion was denied. Its original answer was permitted to stand to the complaint as so amended. The defendant's Post-trial Motion, again presented, as indicated, in the form of a Motion in Arrest of Judgment, its Motion to Dismiss the Complaint, as thus amended at the trial.

Plaintiff's Exhibit 8 contains the Rules and Regulations promulgated by the Illinois Department of Public Health under the Hospital Licensing Act. The particularly important provisions are:

"Section A of Part II — Administration.

`1. For each hospital there shall be a governing authority, hereinafter called the board, responsible for its organization, management, control, and operation, including appointment of the medical staff. For hospitals owned by an individual or by partners, the owner or partners shall be considered the governing authority. For all other hospitals there shall be a Board of Directors, Board of Trustees or similar governing authority. . . .

`4. The board shall appoint a competent executive officer or administrator and vest him with authority and responsibility for carrying out its policies. There shall be a qualified individual responsible to the administrator in matters of administration who shall represent him during his absence.

`5. The board shall employ competent well-qualified personnel in adequate numbers to carry out the functions of the hospital.

`6. The board shall be responsible for the maintenance of proper standards of professional work in the hospital and shall require that the medical staff function in conformity with reasonable standards of competency.'"

"Part III — The Medical Staff.

"Section A — Organization.

`2. The medical staff shall be organized in accordance with written by-laws, rules and regulations, approved by the governing board. The bylaws, rules and regulations shall specifically provide:

`a. for eligibility for staff membership;

`b. for such divisions and departments as are warranted; (as a minimum, Active and Consulting ...

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