The general accepted requirement of a private hospital is that it must in the care of its patients exercise such reasonable care and attention for their safety as their mental and physical condition, if known, may require. Hayhurst v. Boyd Hospital, 43 Idaho 661, 669, 254 P. 528 and cases cited; 41 C.J.S. Hospitals § 8(3), p. 349 and in particular cases cited at note 76, p. 350; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228.
As to acts of the hospital which require the exercise of professional skill in the performance of the act or rendering the service, the standard of care is similar to that owed by physicians to their patients. But this rule does not apply to all acts or services rendered by such a hospital, but only those acts which require the exercise of professional learning and skill. Hayhurst v. Boyd Hospital, 43 Idaho 661, 669, 254 P. 528.
It would require no particular professional learning and skill for hospital attendants to know that a person who is irrational and having hallucinations needs watching or some protection against injuring themselves. Hayhurst v. Boyd Hospital, 43 Idaho 661, 669, 254 P. 528; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228.
The standard of care, therefore, which was owed by respondent to appellant under the circumstances was not the standard of care and skill which prevailed in the particular or similar communities with similar opportunities for practice, but instead, the respondent owed appellant the duty to use such reasonable care and attention for her safety as her mental and physical condition may have required, as such facts were known or should have been known to respondent. Hayhurst v. Boyd Hospital, 43 Idaho 669, 254 P. 528; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 230-231; Hogan v. Clarksburg Hospital, 63 W. Va. 84, 59 S.E. 943; Tulsa Hospital Ass'n v. Juby, 73 Okl. 243, 175 P. 519, 22 A.L.R. 333; Kirby's Admr. v. Berea College, 196 Ky. 353, 244 S.W. 775; Hignite's Adm'x v. louisville Neuropathic Sanitorium, 223 Ky. 497, 4 S.W.2d 407 (409).
While it is necessary, in every personal injury case, to prove negligence, courts, generally, recognize the fact that persons are often injured in such manner, or through such instrumentalities, that it would be impossible to prove the facts showing negligence, and yet, by common knowledge and experience, it is clear that such injury would not have been sustained, ordinarily, had the responsible party not been negligent. Under such circumstances the application of the ordinary rules of evidence would work manifest injustice and render the maxim "for every wrong there is a remedy" (Sec. 8752, Rev.Codes, 1921) nugatory by denying one, patently entitled to damages, satisfaction merely because he is ignorant of facts peculiarly within the knowledge of the party who should, in all justice, pay them. Consequently, in order that justice may prevail, in such cases the courts, generally, apply the doctrine of res ipsa loquitor, or "the thing speaks for itself." Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 231; McGowan v. Nelson, 36 Mont. 67, 92 P. 40; Lyon v. Chicago, etc., Ry. Co., 50 Mont. 532, 148 P. 386; Johnson v. Herring, 89 Mont. 420, 300 P. 535; L.R.A., 1917-A, pp. 1-177; 4 Wigmore on Evidence, Sec. 2509; Graham v. Badger, 164 Mass. 42, 41 N.E. 61; Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436; Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453; Davis v. Springfield Hospital (And cases therein considered) 204 Mo.App. 626, 218 S.W. 696; Notes: 22 A.L.R. 347; 39 A.L.R. 1431; Richardson v. Dumas, 106 Miss. 664, 64 So. 459 (460); Smith v. Holander, 85 Cal.App. 535, 259 P. 958.
On motion for nonsuit or involuntary dismissal, the evidence must be interpreted most strongly against the defendant. Shank v. Great Shoshone Twin Falls Water Power Co., 9 Cir., 205 F. 833; Pilmer v. Boise Trac. Co., 14 Idaho 327, 94 P. 432, 15 L.R.A., N.S., 254; Culver v. Kehl, 21 Idaho 595, 123 P. 301; Southern Idaho Conference Ass'n, etc. v. Hartford Fire Ins. Co., 26 Idaho 712, 145 P. 502; Goldensmith v. Snowstorm Min. Co., 28 Idaho 403, 154 P. 968; McAlinden v. St. Maries Hospital Ass'n, 28 Idaho 657, 156 P. 115; Donovon v. Boise City, 31 Idaho 324, 171 P. 670; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Burtt v. Blackfoot Motor Supply Co., 67 Idaho 548, 186 P.2d 498.
On making a motion for nonsuit or involuntary dismissal after plaintiff has rested his case, the defendant must be deemed to have admitted all of the facts of which there is evidence and all the facts which the evidence tends to prove. Buffat v. Schnuckle, 79 Idaho 314, 316 P.2d 887; Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Donovon v. Boise City, 31 Idaho 324, 171 P. 670; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044; Sweetland v. Oakley State Bank, 40 Idaho 726, 236 P. 538; Southeast Securities Co. v. Christensen, 66 Idaho 233, 158 P.2d 315; Later v. Haywood, 12 Idaho 78, 85 P. 494; Stricker v. Hillis, 17 Idaho 646, 106 P. 1128; Miller v. Gooding Highway Dist., 55 Idaho 258, 41 P.2d 625; Hill v. Bice, 65 Idaho 167, 139 P.2d 1010; Buhl State Bank v. Glander, 56 Idaho 543, 56 P.2d 757; Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Adams v. Bunker Hill Sullivan Min. Co., 12 Idaho 637, 89 P. 624, 11 L.R.A., N.S., 844; Mineau v. Imperial Dredge Co., 19 Idaho 458, 114 P. 23; Culver v. Kehl, 21 Idaho 595, 123 P. 301. I.C. Sec. 9-1207 provides: A party may impeach his own witness by showing that he has made, at other times, statements inconsistent with his present testimony.
In matters which concern professional learning or skill of its nurses, plaintiff in a malpractice action is required to prove the standard of practice of similar institutions in similar communities, and the defendant's violation of such standard of practice, in order to make a prima facie case against a hospital. Hayhurst v. Boyd Hospital, 43 Idaho 661, 254 P. 528; Carrigan v. Roman Catholic Bishop, et al., 104 N.H. 73, 178 A.2d 502; 41 C.J.S. Hospitals § 8(3); Pivar v. Manhattan General, 279 App. Div. 522, 110 N.Y.S.2d 786.
When there is no proof of exclusive control of instrumentality identified as that which caused injury or if the injury in question is as consistent with non-negligent causes as with negligent causes, the application of the doctrine of res ipsa loquitor may not be considered and the case should not be left with a jury. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; Carrigan v. Roman Catholic Bishop, et al., supra; Matheson v. Idaho Hardware Plumbing Co., 75 Idaho 171, 270 P.2d 841; Swanson v. Wasson, 45 Idaho 309, 262 P. 147; Willis v. Western Hospital Ass'n, 67 Idaho 435, 182 P.2d 950.
A claimant must prove that alleged negligence of the defendant was a probable proximate cause of the injury complained of and it will not suffice where claimant proves mere possibility of causation. Matheson v. Idaho Hardware Plumbing Co., supra; Splinter v. City of Nampa, 74 Idaho 1, 256 P.2d 215; 38 Am.Jur., Negligence, § 285, pp. 975, 976; 65 C.J.S. Negligence § 209, pp. 970, 971.
Evidence of prior inconsistent statement does not constitute proof of the truth of the matter contained therein. Bodenhamer v. Pacific Fruit Produce Co., 50 Idaho 248, 295 P. 243.
Party producing witness may not impeach upon mere failure of witness to testify as strongly as or favorably as anticipated. Wurm v. Pulice, 82 Idaho 359, 353 P.2d 1071.
TAYLOR, Justice.
Hazel Butler, plaintiff (appellant), a frail woman, 47 years of age, had been a patient of Dr. Charles E. Krause for a period of approximately two years prior to the accident here involved. During this time she had suffered from gastroenteritis, had been surgically treated for gastric ulcer and had also been treated for duodenal ulcer. She was in a neurotic condition and complaining of pain. A synthetic analgesic narcotic called leritine had been prescribed and administered for the pain. Early in 1962 she was suffering from malnutrition and menstrual cramps. The doctor was apprehensive of possible addiction to the drug. At his direction she was admitted to the defendant (respondent) Caldwell Memorial Hospital for observation at 10:06 p.m. on the night of March 13, 1962. She was placed in a standard hospital room, and in a standard bed equipped with side rails.
The doctor advised the hospital personnel that she was neurotic, that he did not "know what the night would bring," and in his orders directed, "Call me if she complains of pain or restlessness." She was given a sedative (compazine) on admission as ordered by the doctor; at 10:45 she was noted to be quiet; at 11:30 on complaint of chest pain the doctor was notified and at his direction she was given a sedative (sparine) at 11:45; at 12:00 she complained of pain in her lower legs; at 12:30 she complained of pain from her hips down, and at that time appeared drowsy. The nurse recorded for 1:00 o'clock, "voided — pad changed, flow scant." At 1:30 she was found lying on the floor and was assisted back into her bed. There was a slight laceration on the left side of her chin. At 2:00 o'clock she was complaining of pain in the hips and back and was very drowsy. At this time "soft" shoulder restraints were applied, as directed by the doctor. Dr. Krause examined the patient on the morning of the 14th and did not suspect any hip injury. During the next two weeks Mrs. Butler became mentally ill, experienced hallucinations and was only periodically rational. By March 30th her malnutrition and mental condition had improved. At this time she began to complain of pain in her right hip. X-ray examination on April 3rd revealed a fracture of the neck of the right femur. This was repaired by surgery performed April 9, 1962.
Mrs. Butler brought this action against the hospital, alleging that her injuries were caused by the negligence of the defendant hospital. Specifically, plaintiff contends that the hospital, being advised of her neurotic condition, of the possibility of withdrawal symptoms because of the discontinuance of the administration of leritine, and of her nervousness and restlessness, should have placed her in a bed with raised side rails extending from head to foot, or placed restraints upon her person, or provided continuous supervision.
Upon trial, after plaintiff had rested her case, the court granted defendant's motion for an involuntary dismissal. Plaintiff brought this appeal from the judgment entered thereon.
"The generally accepted requirement is that a private hospital conducted for gain must, in the care of its patients, exercise such reasonable care and attention for their safety as their mental and physical condition, if known, may require." Hayhurst v. Boyd Hospital, 43 Idaho 661, at 669, 254 P. 528, at 529 (1927).
"Although a private hospital is not an insurer of a patient's safety, it must exercise such reasonable care toward a patient as his known condition may require." 41 C.J.S. Hospitals § 8c(3)
The defendant contends that plaintiff's proof was insufficient to show that the plaintiff's injury occurred in the hospital. There was some evidence of stumbling and bruises on her lower legs before she entered the hospital, and that she had suffered a fall at home on March 13th before going to the hospital. However, there was evidence of a fall in the hospital between 1:00 and 1:30 o'clock in the morning of the 14th of March. Whether this fall was from the bed or from a standing or walking position, remains in the realm of conjecture. The evidence as a whole would support a finding by the jury that the injury occurred as a result of her fall in the hospital. The remarks of the trial judge at the time he granted defendant's motion for dismissal indicate that he was of the opinion that the evidence was sufficient on that point to take the case to the jury, and that he based his ruling upon the insufficiency of the evidence to establish negligence on the part of the defendant.
The orders given by plaintiff's doctor at the time she was admitted and during the course of the night prior to her fall were strictly complied with by the attending nurses. The medication administered pursuant to such orders was sedative in character and tended to quiet the patient. The doctor testified that the nurses would have authority, in their discretion, to raise the rails. The plaintiff testified the rail, from the head to the midsection, on the side from which she entered the bed, was raised after she was placed therein. The record is silent as to the bed rail on the far side of the bed, or whether that side was against the wall. The manager of the hospital testified that bed rails were always kept in raised position at night. There was no evidence that any failure to raise the rail along the lower half of the bed would create an unreasonable risk of harm to plaintiff. There is no evidence as to where, with reference to the bed, plaintiff was found on the floor. The doctor testified that the room and the bed in which she was placed were appropriate and sufficient for her care; that he did not consider any restraints upon her person were necessary, and he did not want any to be placed upon her, nor did he order a special nurse or continuous supervision. His only order in that respect was that he be called if she complained of pain or restlessness. This same doctor had treated plaintiff in the hospital on previous occasions and knew her tolerance of, and reaction to, the medication given. The doctor testified that application of restraints tend to disturb and upset a conscious patient; that he did not think restraints were indicated at the time of her admission. However, the doctor did order "soft" restraints applied after she was discovered out of bed.
Dr. Baranco, an orthopedic surgeon, who performed the surgery for repair of the fractured femur on April 19th, and plaintiff's physician, Dr. Krause, both testified that the imposition of restraints was in the sole jurisdiction and discretion of the physician in charge; that nurses or hospital attendants do not have authority to decide whether or when restraints are to be used.
Dr. Krause further testified that he did not advise the hospital attendants that plaintiff was emotionally or mentally ill or that she was suffering from narcotic addiction, nor did he advise them that she was or might be convulsive. Except for drowsiness, the record shows the plaintiff was conscious and rational, and that she was quiet, except when complaining of pain.
Thus, we find no evidence in the record of negligence on the part of the hospital nurses or attendants. If there was negligence in the failure to provide a special nurse, or constant supervision, or to apply restraints, such would not be negligence on the part of the hospital in view of the orders given by the attending physician and the undisputed evidence that such precautions were within the ambit of the doctor's authority and responsibility, not that of the hospital.
Plaintiff contends that the doctrine of res ipsa loquitur should be applied in this case, and that the application of the doctrine would supply any defect or want of direct evidence of negligence so as to render the question of actionable negligence one for the jury to determine. We do not find the doctrine applicable here. The evidence does not tend to show that common knowledge and experience indicates that the accident would not have occurred in the absence of negligence, at least on the part of the hospital. The want of restraints and continuous supervision were not under the control of the hospital. Hale v. Heninger, 87 Idaho 414, 422, 393 P.2d 718 (1964); Potter v. Dr. W.H. Groves, L.D.S. Hosp., 99 Utah 71, 103 P.2d 280 (1940). In this case it is just as probable that the plaintiff got out of bed of her own volition, and thereafter fell, as it is that she unknowingly fell out of bed. Neither restraints nor constant supervision were ordered by the physician in charge.
Plaintiff emphasizes the evidence that her husband told the nurses upon her admission that they should take her cigarettes away from her, else she might burn herself, and that they did so and brought her one at a time when she requested, and remained with her while she smoked it. Such evidence would not tend to warn defendant that plaintiffmight fall out of bed, or that constant supervision or restraints were necessary or advisable. Normal people often burn themselves by smoking in bed.
The judgment of dismissal was proper. Hayhurst v. Boyd Hospital, 43 Idaho 661, 254 P. 528 (1927); McDonald v. Foster Memorial Hospital, 170 Cal.App.2d 85, 338 P.2d 607 (1959); Welsh v. Mercy Hospital, 65 Cal.App.2d 473, 151 P.2d 17 (1944); Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228 (1932); Carrigan v. Roman Catholic Bishop, 104 N.H. 73, 178 A.2d 502 (1962); Memorial Hospital, South Broward Hosp. Dist. v. Doring, Fla.App., 106 So.2d 565 (1958); Marsh v. City of St. Petersburg, Fla.App., 106 So.2d 567 (1958); 41 C.J.S. Hospitals § 8(3).
Plaintiff assigns as error the rejection of her proffered exhibits 3A and 9. These exhibits contained written statements by Dr. Krause, made when the fracture of the femur was discovered, that it probably occurred at the time of her fall in the hospital. The doctor as a witness refused to give an opinion as to when the fracture occurred. The exhibits were admissible since they tended to impeach the witness by proving prior statements inconsistent with his present testimony. I.C. § R 9-1207; IRCP rule 43(a). However since the decision, both in the trial court and here, is based upon a want of evidence of negligence on the part of defendant, not upon a want of evidence that the injury was received in the hospital, the error in rejecting the exhibits is not reversible.
Judgment affirmed.
Costs to respondent.
McFADDEN, C.J., and McQUADE, SMITH and SPEAR, JJ., concur.
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