Gilles v. Rehabilitation Institute of Oregon

498 P.2d 777, 262 Or. 422, 53 A.L.R. 3d 1244, 1972 Ore. LEXIS 492

• Court: Oregon Supreme Court
• Decided: June 29, 1972
• Status: Published

Opinions

DENECKE, J.

This is a malpractice action brought by plaintiff to recover damages for injuries which she sustained while undergoing physical therapy. Defendants are the Rehabilitation Institute of Oregon and Miss Weller, an employee of the Institute and attending physical therapist. A verdict was returned for the defendants. Plaintiff appeals upon the ground that there was insufficient evidence of any contributory negligence to permit the issue to go to the jury.

As the jury found the disputed facts in defendants’ favor, the evidence will be viewed in a light most favorable to the defendants.

The plaintiff, Miss Gilles, had been the principal of an elementary school for about 20 years before this incident. She had hip surgery and after hospitalization went to the Rehabilitation Institute for physical therapy prescribed by her orthopedist. For her therapy she was placed on a tilt-table. The table was horizontal when she was placed on it and strapped in place around the pelvis and knees. It was then gradually raised to a vertical position, which automatically put the patient in a standing position. The patient then was unstrapped and allowed to stand. When in this standing position Miss Gilles was between handrails about chest high which extended from the table and could be used for support.

Just prior to the accident the plaintiff was standing or walking. She complained of feeling faint.

The attendant returned her to the tilt-table and started tilting it from vertical to horizontal position and taking other precautions to prevent plaintiff’s hip from flexing or bending. Despite this, plaintiff slid downward and her hip flexed, causing her injury.

The defendants charged the plaintiff with contributory negligence in grabbing the handrails on the tilt-table and pulling herself downward and in refusing to release her hold on the bar, which caused her to slump downward.

Plaintiff moved to strike the allegations of contributory negligence upon the ground that there was no evidence that plaintiff grabbed the bar or, if she did, that such conduct caused her hip to flex and if the plaintiff grabbed the bar or refused to release her hand that these were not voluntary acts but reflex actions of a woman who was either unconscious or at least incapable of volition.

There is testimony, particularly that of Miss Brooks, the head nurse, that plaintiff did grab the bar and refused to release it. The more difficult question is whether the jury could infer that this was a volitional act.

There was testimony that plaintiff was “rude,” “abrupt,” “imperious,” and “hostile” to the people attempting to treat her. The inference could be drawn that she was uncooperative.

The defendant Weller testified that about the time plaintiff grabbed the bar, she became rigid, her eyes were fixed, and she appeared to have an episode of petit mal; however, she retained some state of consciousness. On the other hand, the head nurse testified that plaintiff did not exhibit the symptoms of petit mal, which are lapse of memory and motor function. The head nurse testified plaintiff’s arm hooked under the bar, she sagged and her right hip flexed and she became semi-conscious. Miss Brooks described plaintiff’s condition as “somewhat hysterical.”

The attendant who was helping plaintiff testified she was conscious during this time. When asked to describe her actions, he testified:

“Well, she got kind of panicky. That’s about the only thing I could say is that she was very pani dry.”

We conclude that the jury could infer from the testimony that plaintiff’s conduct was volitional, that is, plaintiff’s conduct was not completely out of the control of her will.

Affirmed.