Opinion
44637.
ARGUED SEPTEMBER 8, 1969.
DECIDED FEBRUARY 4, 1970. REHEARING DENIED APRIL 1, 1970.
Action for damages. Richmond Superior Court. Before Judge Fleming.
Fulcher, Fulcher, Hagler, Harper Reed, Gould B. Hagler, for appellant.
Lanier, Powell, Cooper Cooper, L. Valdi Cooper, L. E. Maioriello, for appellee.
1. Under the facts of this case in which a hospital was sued for negligence, a charge on res ipsa loquitur was authorized.
2. Evidence of the plaintiff's receipt of social security benefits is not admissible to show plaintiff's motive for not returning to work.
ARGUED SEPTEMBER 8, 1969 — DECIDED FEBRUARY 4, 1970 — REHEARING DENIED APRIL 1, 1970 — CERT. APPLIED FOR.
Plaintiff, Oakley Haynes, brought suit in the Superior Court of Richmond County against the Richmond County Hospital Authority, operating the University Hospital, for personal injuries allegedly sustained by him while a patient in the University Hospital in December 1964. A jury verdict in the amount of $25,250 was returned for the plaintiff. At the conclusion of the evidence the defendant made a motion for a directed verdict, which was denied. The court ordered judgment on the verdict and thereafter defendant filed a motion for judgment notwithstanding the verdict and a motion for new trial, both of which were overruled and denied by the court. Defendant appeals.
In his complaint plaintiff alleged that defendant was negligent in using tight, leather wrist straps without adequate padding when better methods of restraint were available; and in subsequently failing to check them often enough to prevent the development of severe injury from the abrasive situation created.
The following evidence was presented on the trial of the case: Plaintiff was admitted as a paying patient to defendant hospital in a diabetic coma on December 12, 1964, at approximately 7 a. m. He was put to bed with leather restraining straps around his wrists and these straps remained in place until approximately 7 p. m. of the following day. When the straps were removed, it was discovered that plaintiff's wrists were badly bruised and that blisters were forming. These later burst leaving deep lacerations or ulcerations which became infected.
Plaintiff suffered ulnar and median nerve damage and secondary muscle damage to his wrists and hands for which he had to take frequent electric muscle stimulating treatments for nearly two years. Plaintiff testified that he was unable to return to work for thirty-one months following his injury, that he was in severe pain following this injury for a number of weeks and could not use his hands or fingers at all for several months thereafter. He testified that even now the muscles of his hands were not as strong as they had been before; that although he could use his hands, he still had scars and he still experienced unpleasant prickling sensations in his hands and wrists. Plaintiff's testimony was corroborated by his treating physicians.
The evidence showed that the injury to his wrists and hands caused plaintiff to lose approximately $8,556 in wages and to incur expenses in excess of $2,500.
All the medical witnesses testified that in 1964 leather wrist restraints were standardly used on patients who were violent and thrashing about; that this was for the protection of the patient; that patients put in such restraints had to be closely watched; and that these restraints should be applied and maintained in accordance with the rules and regulations for restraints in force at the hospital.
These rules provide that it is essential to have a physician's order to apply restraints; that keys to leather restraints are always kept with the narcotics keys; that all areas where friction is likely to occur should be padded with cotton wadding; that restraints should be removed at four-hour intervals to exercise the part being restrained; and that when the patient is removed from restraints, the area should be washed with soap and water and alcohol and powder applied.
While Dr. Griffin, the patient's private physician during his period of hospitalization, did not order the restraining straps to be applied, he was aware they had been, and he did not order their removal.
There was testimony from a number of lay witnesses who saw the plaintiff wearing the wrist restraints that he was lying still the whole time they were with him. However, plaintiff's own physician, as well as the nurses, said that plaintiff was thrashing violently when he was admitted and that restraint was necessary for his own good. During this period plaintiff was receiving intravenous fluids. None of the lay witnesses who visited plaintiff saw any cotton wadding underneath the wrist restraints nor did his attending physician. The only mention of any material between the straps and plaintiff's wrists was a reference to a piece of gauze which apparently hung down from one of his wrists on the second day he was in the hospital.
These lay witnesses also testified that during all the periods they visited with plaintiff in the hospital, no hospital personnel checked the restraints in any way to their knowledge. Some of these witnesses testified that the restraints appeared to be too tight around plaintiff's wrists and that his flesh was "sort of puckered up" or swollen around them. They also testified that the bruising or rawness was visible to them while the restraints were still on plaintiff's wrists and one of these witnesses testified that she could already see blisters forming in the area.
Dr. Daniel, a neurosurgeon, testified that such wounds as plaintiff suffered from the restraints probably started forming in four to six hours; that if hospital personnel had been checking for vital signs every four hours (and in the case of a comatose patient this check should have been made far more frequently) they should have become aware that the friction from the restraints was causing severe bruising of plaintiff's wrists long before the injury became so severe. Dr. Daniel testified that it probably took somewhere between twelve and twenty-four hours for the wounds to develop to such severity. One of the doctors testified that had the injury to plaintiff's wrists been picked up in the early stages, cotton wadding could have been inserted between the straps and plaintiff's wrists to reduce friction and mitigate the injury, if the wrist restraints were in fact still necessary for plaintiff's protection. There was testimony that during plaintiff's relapse into a comatose condition some time later during his stay in the hospital, no wrist restraints were applied but only siderails.
All medical experts testified that injuries such as the plaintiff received were very rare. Some had never seen any similar injuries from wrist restraints and none of the doctors had previously seen an injury this severe. There was no conflict among the experts that the wounds to plaintiff's wrists resulted from the wrist restraints.
There was no direct testimony either way that the straps in some way also caused the nerve damage. It seems to have been assumed even by the defendant, one of whose points on cross examination of plaintiff's neurosurgeon was that possibly the pressure exerted by plaintiff against the straps, rather than the ulcerations, caused the nerve damage.
Finally, there was expert medical testimony that diabetic patients must be specially watched for skin problems, pressure sores, and constriction of blood vessels as they are particularly fragile and can develop serious problems in these areas.
1. The defendant enumerates as error the charge of the court on the doctrine of res ipsa loquitur contending that it did not apply in this case. Proper objection was made by the defendant after the charge and before verdict. Both the plaintiff and the defendant argue at length over whether this is a malpractice suit. In our opinion this is fallacious argument over terminology. In the strict technical sense perhaps a corporation cannot be considered "a person professing to practice surgery or the administering of medicine." Code § 84-924. However, it is common knowledge that hospitals do in fact administer medical treatment. Williams v. Hosp. Authority of Hall County, 119 Ga. App. 626, 627 ( 168 S.E.2d 336).
While this court has stated in the past that res ipsa loquitur could not be applied in a malpractice case, it usually qualified the statement by using the phrases in a "suit such as this" or "a case of this kind." Hayes v. Brown, 108 Ga. App. 360, 367 ( 133 S.E.2d 102); Wimpy v. Rogers, 58 Ga. App. 67 ( 197 S.E. 656). Furthermore, they have involved claims against physicians, surgeons or dentists rather than a negligence claim against a hospital. In any event, we do not intend to become anesthetized by labels. The issue here is whether the doctrine is applicable under the facts in this case.
Three separate elements can be found in the usual statement of the doctrine of res ipsa loquitur: (1) the injury must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Atlanta Coca-Cola Bottling Co. v. Danneman, 25 Ga. App. 43 ( 102 S.E. 542); Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61 ( 114 S.E.2d 517).
When applied to the general run of malpractice cases, the first cannot usually be shown. Here the severe wounding and nerve damage to the wrists of a comatose diabetic patient was so unusual that all the doctors who testified said they had never seen such a thing before and that they would not have expected such a result if the restraints were used in a normal, proper way. We can therefore say the injury could not ordinarily have happened unless the restraints were misused. Also, it is without dispute that the restraints were in the exclusive control of the hospital. Finally, any pressure or straining by plaintiff against the straps cannot be considered voluntary action in the light of his comatose condition. See Restatement, Torts 2d, Vol. 1, § 2 (comment a). The facts of this case make it an appropriate one for the application of res ipsa loquitur.
Defendant further contends that plaintiff has lost the benefit of the doctrine by introducing evidence of specific acts of negligence. This court has said that where ". . . there is an incomplete explanation of the facts of the occurrence in dispute to the extent that the `true cause is still left in doubt or is not clearly shown,' the doctrine of res ipsa loquitur remains in the case, leaving to the jury a permissible inference of negligence for them to accept or reject." Harrison v. Southeastern Fair Assn., 104 Ga. App. 596, 608 ( 122 S.E.2d 330).
Here, although plaintiff has introduced evidence tending to show that the proximate cause was the lack of care of the hospital in applying and maintaining the straps, defendant has elicited testimony that the hospital did not in fact depart from the prescribed routines for use of restraints. With this conflict of evidence, it cannot be said that the true cause is not left in doubt. The charge on res ipsa loquitur was proper.
2. A ground in the defendant's motion for new trial was that the court erred in not requiring plaintiff to respond to the following questions and in sustaining his counsel's objection thereto: "Now starting in the early part of the summer of `65, you received $225 a month social security, didn't you?" The plaintiff contended that the evidence had no relevance to any issue in the case. The parties agree that the evidence was not admissible to show mitigation of damages, but the defendant argues it was admissible for the limited purpose of showing the plaintiff's motive for absence from work. In actions under the Federal Employers' Liability Act and a longshoreman's action against a ship owner, the Federal courts have held that evidence of the plaintiff's receipt of railroad retirement, public assistance, social security, and veteran's pension benefits is not admissible to show the plaintiff's motive for not returning to work. Eichel v. New York Central R. Co., 375 U.S. 253 84 SC 316, 11 L.Ed.2d 307; Caughman v. Washington Terminal Co., 345 F.2d 434 (D.C. Cir. 1964); A. H. Bull Steamship Co. v. Ligon, 285 F.2d 936 (5th Cir. 1960). The United States Supreme Court has stated: "In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension." Eichel v. New York Central R. Co., supra, p. 255. State courts also have held such evidence is not admissible on the question of duration of disability to show motivation for absence from work. Traders General Ins. Co. v. Reed (Tex.Civ.App.), 376 S.W.2d 591. We agree with the decisions of the Federal and State courts excluding such evidence.
3. The defendant's enumeration of error that the trial court erred in not granting a new trial on the ground the verdict was excessive is without merit. Yale Towne, Inc. v. Sharpe, 118 Ga. App. 480, 492 ( 164 S.E.2d 318).
4. The defendant complains of the admission of testimony by a lay witness that the sores on the wrists of the plaintiff were deep, over objection that it constitutes an opinion and conclusion of the witness. In connection with this statement the witnesses described in detail the physical appearance of the plaintiff's wrists. The trial court did not err in overruling the motion for new trial on this ground. General Gas Corp. v. Whitner, 110 Ga. App. 878 (7) ( 140 S.E.2d 227).
5. As to the contention that the trial court erred in charging Code § 38-119, no objection was made at the trial and we are of the opinion that the alleged error was not "harmful as a matter of law" under Code Ann. § 70-207 (c). Royal Frozen Foods Co. v. Garrett, 119 Ga. App. 424 (4) ( 167 S.E.2d 400).
6. The evidence did not demand a verdict for the defendant. The trial court did not err in overruling its motion for directed verdict, motion for judgment notwithstanding the verdict or the general grounds of its motion for new trial.
Judgment affirmed. Jordan, P. J., and Whitman, J., concur.