Dent v. Memorial Hospital of Adel, Inc.

490 S.E.2d 509, 227 Ga. App. 801, 1997 Ga. App. LEXIS 944
CourtCourt of Appeals of Georgia
DecidedJuly 16, 1997
DocketA97A0289
StatusPublished
Cited by6 cases

This text of 490 S.E.2d 509 (Dent v. Memorial Hospital of Adel, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dent v. Memorial Hospital of Adel, Inc., 490 S.E.2d 509, 227 Ga. App. 801, 1997 Ga. App. LEXIS 944 (Ga. Ct. App. 1997).

Opinions

Beasley, Judge.

The Dents as parents, and the father as the estate administrator, sued Memorial Hospital of Adel, Inc. (“hospital”) and others for the wrongful death of their 15-month-old son.

At about 10:30 p.m. on November 21, 1987, Mark Alan Dent stopped breathing. His parents successfully administered CPR at home and rushed Mark to the hospital’s emergency room. Dr. Howard McMahan concluded that Mark had suffered an apneic event, decided that Mark should be admitted to the hospital for observation and ordered his placement on a pediatric apnea monitor. The monitor was to be set so an alarm would sound, alerting the nurses, if Mark stopped breathing for ten seconds.

At about 4:30 a.m., Mark’s mother awakened and discovered her son was not breathing. After noticing he appeared extremely blue, [802]*802she ran to the nurse’s station for assistance. When the nursing staff responded, Mark was already in a cyanotic state, indicative of oxygen deprivation for several minutes, not a few seconds. Mark never resumed normal, unassisted breathing and died four days later.1

The evidence conflicted as to whether the alarm failed to sound, whether the attending nurse failed to turn the alarm switch to the “on” position, and whether the hospital’s crash cart lacked several essential items. There was opinion evidence that the nursing staff’s response to Mark’s emergency was inadequate. After a lengthy trial, the jury found for the hospital. Following denial of their motion for new trial, the Dents appealed and enumerate two errors.

1. The Dents contend the trial court committed reversible error by using a charge on professional negligence which confused and misled the jury into believing it could disregard the issue of ordinary negligence. The complaint and the pre-trial order, which formed the basis for the claim and the issues, the closing arguments of both counsel, the judge’s whole charge to the jury, and the history of the jury’s deliberations and question and the judge’s reply, show that no reversible error occurred as enumerated.

It is evident that the jury understood that it should consider two theories of negligence, ordinary and professional. Whether the jury found no breach of the duty of ordinary care by the nurses and no breach of their professional duty of care or lack of proximate cause, which of course we do not know, the charge as given did not mislead or confuse. Even if the charge could have been made clearer or reworded, that is not the issue.

The jury had the complaint with them for their deliberations. It contained alternate theories in separate counts. As related to the hospital, the plaintiffs alleged undifferentiated negligence in paragraphs 13, 26 and 28.

Plaintiffs outlined their contentions about the events in the pretrial order. They listed two theories of liability, i.e., “ordinary negligence” and “medical (nursing) malpractice or professional negligence including the breach of a duty. . . .” The “specifications of negligence” were not separated into two categories, one ordinary and one professional, and are not listed in the record. Defendant’s contentions were outlined as not breaching any duty of care owed and allegedly violated.

The verdict form agreed upon by the parties does not distinguish between the two theories. It simply lists as possible verdicts one in favor of the plaintiffs as parents for the wrongful death (value of life), [803]*803one in favor of the father as administrator of the child’s estate (pain and suffering, medical and burial expenses), and one in favor of the hospital. It was in fact the form used, except it omitted pain and suffering as an item of damages for the administrator.

While we recognize that the jury is not instructed on the law by the lawyers but by the judge, the arguments of counsel illuminate the issue as to whether the jury was misled or confused by the judge’s instructions. The arguments of counsel made clear that the two theories were advanced by plaintiffs, thereby contributing to the jury’s understanding. Defendant, who gave the first closing argument, told the jury at the outset that “[n]umber one, you have to decide if there was a breach of a duty. In other words, did either the applicable standard of care that was applicable to nurses, whether that was breached, or whether ordinary — what a reasonable person under those same or similar circumstances, that was breached. So, the first inquiry you have to make is on any allegation that they make, that they contend entitles them to recover, you have to make that initial threshold determination. Was there a breach of duty and was that duty either ordinary negligence or was it standard of care.” Defendant discussed in particular medical malpractice, as related to the nurses’ training and to the care given, and, in so doing, focused on the expert testimony.

Plaintiffs also discussed the two theories of ordinary negligence and professional negligence and said that the jury would not have to find professional negligence but only ordinary negligence by way of the fact that the alarm was, or alarms were, not on. Plaintiffs argued that experts are necessary to prove professional negligence. Their counsel guided the jury’s thinking: “If you get beyond ordinary negligence, then you do have to go to the issue of professional negligence. And in that regard, that is where you consider the standard of care exercised by nurses, nurses’ aides under like or similar circumstances.”

And later: “I mean, it doesn’t take a rocket scientist here, ladies and gentlemen. We are talking about ordinary negligence. . . .” Still later: “It (the hospital) was a place where they were charged with exercising professional judgment and doing things to take care of him. And not only did they not exercise professional judgment, as you’ve heard from the experts, they didn’t exercise ordinary care in the instance of either turning on the alarm, turning on alarm number two, or just setting it.” (Counsel then tied the alarm apparatus into professional negligence.)

At the end of the argument about liability, before going on to the issue of damages, counsel said: “If you find that the hospital is liable, . . . and by liability now, I mean that they committed an act of negligence [or] professional negligence, and that that negligence [or] pro[804]*804fessional negligence, proximately caused the death.”

Thereafter, the court charged the jury. It first charged, in a clear fashion, ordinary negligence: “Ordinary negligence means the absence of or the failure to use that degree of care which is used by ordinarily careful persons under the same or similar circumstances. I charge you that in order that a party may be liable in negligence, it is not necessary that it should have contemplated or been able to participate — excuse me, strike that, have been able to anticipate the particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient, if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from its acts or omission, or that consequences of a generally injurious nature might have been expected.”

Later, and separate from the charge on ordinary negligence, the court charged at some length on the theory of professional negligence.

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514 S.E.2d 227 (Court of Appeals of Georgia, 1999)
Dent v. Memorial Hospital of Adel, Inc.
511 S.E.2d 259 (Court of Appeals of Georgia, 1999)
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509 S.E.2d 908 (Supreme Court of Georgia, 1998)

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Bluebook (online)
490 S.E.2d 509, 227 Ga. App. 801, 1997 Ga. App. LEXIS 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dent-v-memorial-hospital-of-adel-inc-gactapp-1997.