Sexton v. St. Paul Fire & Marine Insurance

631 S.W.2d 270, 275 Ark. 361, 1982 Ark. LEXIS 1328

• Court: Supreme Court of Arkansas
• Decided: March 29, 1982
• Docket: 81-242
• Status: Published

Opinions

Richard B. Adkisson, Chief Justice.

The Nevada County Circuit Court granted a motion for a directed verdict in favor of appellee after finding that appellant had failed to meet the burden of proof for “medical injury” as required by Act 709 of 1979 (Ark. Stat. Ann. § 34-2613 — 2620 [Supp. 1981]). On appeal we affirm.

Appellant’s husband, Walter Sexton, was admitted to the Nevada County Hospital on May 29, 1979, after being diagnosed as suffering from diabetes, generalized arteriosclerosis, and a kidney infection. He was 81 years old and was mentally confused during much of his stay in the hospital. The nurses’ notes reflect that on May 51, he fell in the bathroom but was not seriously injured and that on June 2 he nearly fell and was put to bed. Nurses found him attempting to climb out of bed on numerous occasions. On June 2 one of the nurses called Sexton’s doctor to ask if he would authorize a Posey vest. A Posey vest is a type of safety restraint that fits around a patient’s chest and is tied under the bed to keep the patient from getting out of bed. The doctor authorized the restraint “as needed for safety” but allowed the nurses to make the final decision as to whether to use the vest. No Posey vest was given to Sexton, and on June 3 he fell again, fracturing his hip and shoulder. Sexton died several months later. His wife, as executrix of his estate, brought suit alleging that the hospital was negligent in failing to place the vest on her husband.

The trial court based the granting of the directed verdict for appellee on Ark. Stat. Ann. § 34-2614 (Supp. 1981), which provides:

Burden of proof. — (A) In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and

(2) That the medical care provider failed to act in accordance with such standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred. . . .

Appellant did not introduce any evidence of the degree of skill used by other hospitals in the same or similar locality as required by this statute.

Appellant correctly argues that this Act is only applicable to professional services. Ark. Stat. Ann. § 34-2613 (Supp. 1981) provides:

(C) ‘Medical injury or injury’ means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

However, appellant incorrectly argues that the use of a Posey vest is not a professional service. Testimony revealed that only the doctor could authorize its use, although its actual placement on the patient was left to the discretion of the nurse.

A hospital is required to consider the patient’s capacity to care for himself and to protect the patient from dangers created by his weakened condition. Providing a safe environment for patients is within the scope of the professional services by a hospital. Murillo v. Good Samaritan Hospital of Anaheim, 99 Cal. App. 3d 50, 160 Cal. Rptr. 33 (1979).

Analogous are decisions holding that whether to raise bedrails involves the expert judgment of the health care provider and is, therefore, beyond the common knowledge of the jury and a matter as to which expert testimony is required. See Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A. 2d 502 (1962); Mossman v. Albany Medical Center, 311 N.Y.S. 2d 131 (1970).

Affirmed.

Hickman, Purtle, and Hays, JJ., dissent.

Purtle, J., would grant rehearing.