Blair v. St. Margaret's Hospital

235 So. 2d 668, 285 Ala. 636, 1970 Ala. LEXIS 1087
CourtSupreme Court of Alabama
DecidedMay 15, 1970
Docket3 Div. 433
StatusPublished
Cited by5 cases

This text of 235 So. 2d 668 (Blair v. St. Margaret's Hospital) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blair v. St. Margaret's Hospital, 235 So. 2d 668, 285 Ala. 636, 1970 Ala. LEXIS 1087 (Ala. 1970).

Opinion

BLOODWORTH, Justice.

Plaintiff appeals from a judgment and verdict of the jury in favor of the defendant in a malpractice suit.

Plaintiff filed suit against defendant claiming damages as a proximate result of the hospital’s negligence in failing to give her an enema prior to a hysterectomy operation performed by her own surgeon.

Plaintiff testified to the effect that her preparation for surgery “was supposed” to include a Fleet’s enema given by the hospital as ordered by her surgeon. She testified this is a medicated enema to clean the intestines out so that there is no danger of infection. She denied receiving this enema and attributed her subsequent maladies to this alleged negligence and lack of skill on the part of the hospital. Plaintiff testified she had complained prior to surgery of not having had the enema.

The surgeon who performed the surgery testified that she (the surgeon) did order the Fleet’s enema but that if it had not been given it would not have been harmful nor affected the surgery, which she stated was a complete success. She also testified that the first time Mrs. Blair complained to her that she had not received the enema was five or six days after the operation. The doctor further testified that nothing the hospital did or failed to do caused any injury to Mrs. Blair while at the hospital, nor would the failure to receive a Fleet’s enema have resulted in -any of her later complaints.

A physican engaged in general practice testified for plaintiff. He is now her personal physician. ITe stated that he was familiar with her complaints as she related them to him. He would not say that any of these complaints were attributable to a failure on the part of defendant to properly care for'her. He also stated he could not relate her present ailments to a failure to give a Fleet’s enema.

The head nurse on the floor at the hospital testified to attending Mrs. Blair prior to surgery, but that she was “in and out of the room.” She related that Mrs. Blair did not complain to her about not having an enema, nor of being improperly prepared prior to surgery. She related that Mrs. Blair did seem apprehensive. Later, in the post operative period Mrs. Blair did complain to her about not having had the enema. The head nurse testified, “ * * * so I went back and I checked to be sure * * * before surgery she had a Fleet enema.” She testified the student nurse (who was in Florida at time of trial) wrote it down, that the enema comes in a package, that “ * * * it was ordered and it was gone.”

Defendant’s request for the affirmative charge was denied. The jury returned a verdict for the defendant.

On this appeal, plaintiff complains of reversible error in the giving of these two written charges requested by defendant, viz:

“Defendant’s charge number 9: I charge you that before the plaintiff is entitled to recover she has the burden of proving to the reasonable satisfaction of the jury that the hospital was guilty of some negligent misconduct which directly caused her some damage or harm. If she has failed to so satisfy you, then you can not return a verdict for the plaintiff.
Given, Emmet, Judge.”
“Defendant’s charge number 13: I charge you that the hospitalization could not be said to be negligent for following the instructions of a reputable doctor of plaintiff’s own selection who was treating the plaintiff according to accepted medical and surgical procedures.
Given, Emmet, Judge.”

[639]*639Plaintiff contends charge 9 is an erroneous charge, the giving of which was prejudicial to plaintiff because of the phrase “negligent misconduct,” used therein. Defendant says it is, at most, merely misleading and plaintiff’s remedy was to request an explanatory charge. Assuming the charge is erroneous, defendant says, plaintiff’s given charges 1 and 3, as well as the oral charge of the court, fully covered the subject and the error, if any, is not reversible error.

Assuming for the sake of argument that the charge is misleading, the giving of it is not reversible error because plaintiff should have requested an explanatory charge. In Alabama Power Company v. Smith, 273 Ala. 509, 524, 142 So.2d 228, 242, we said:

“If, however, Charges 12 and 13 be deemed incomplete and, therefore, misleading, giving them was not reversible error. ‘It is not necessarily reversible error to give ambiguous or misleading charges; proper explanatory instructions should be given at request of party supposing himself prejudiced thereby.’ Birmingham Southern R. Co. v. Harrison, 203 Ala. 284, 291, 82 So. 534, 541. * * ”

We are not impressed with plaintiff’s argument that giving this charge conveyed to the jury the erroneous idea that plaintiff had to prove “willful negligence.” Also, we believe the subject of this charge was fully covered in both the oral charge of the court and plaintiff’s given charges.

We said in Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 248, 147 So.2d 279, 282:

“We have also held that giving of an erroneous charge does not necessarily mean a reversal of the trial court. In International Union, etc. v. Russell, 264 Ala. 456, 88 So.2d 175, 62 A.L.R.2d 669, we said:
“ ‘Appellants further argue that the charge was erroneously given because it fails to instruct that punitive damages could be awarded only if the jury determined that plaintiff suffered actual damages. This argument is without merit for the subject is fully covered in the oral charge given by the judge. Such being the case, if any error existed, it is not reversible error. * * * ’ ”

Plaintiff contends charge 13 is misleading and abstract because it omits the possibility the hospital could be negligent though the doctor might not. Defendant says even if it is assumed this charge is misleading, it was corrected by other given charges and the oral charge.

We do not concede the charge is misleading. But, if it is, as we have already said, the plaintiff should have requested an explanatory charge. Alabama Power Company v. Smith, supra. If abstract, it is not reversible error, for we do not think from viewing the whole record that it misled the jury to plaintiff’s prejudice. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Knabe v. State, (1970) 285 Ala. 321, 231 So.2d 887.

Finally, plaintiff complains of reversible error in the refusal of two written charges she requested, viz:

“Plaintiff’s Requested Charge 4: No matter how much skill the agents and servants of the defendant'may have possessed, yet if they so negligently or unskillfully untook to care for and attent to the plaintiff, or if they negligently or unskillfully cared for or treated or omit'ted to care for or treat the plaintiff, and such negligence or unskillfulness, proximately contributed to the injury to the plaintiff, then the defendant is liable.
Refused, Emmet, Judge.”'
“Plaintiff’s Requested Charge 5: You are instructed that, if a hospital has taken charge of the patient, and undertaken for reward to furnish hospital and apparatus for an operation, it is its-duty to exercise, through its agents and [640]

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Bluebook (online)
235 So. 2d 668, 285 Ala. 636, 1970 Ala. LEXIS 1087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-v-st-margarets-hospital-ala-1970.