Dent v. Memorial Hospital of Adel
Dent v. Memorial Hospital of Adel
Opinion of the Court
Mark Alan Dent, the 15-month-old son of Joe Edward Dent and Lee Anne Dent, stopped breathing at home, was successfully resuscitated, and was brought to Memorial Hospital of Adel. A physician admitted the child to the Hospital and ordered that he be placed on a pediatric apnea monitor. However, the child stopped breathing again and no one discovered the problem for several minutes. He died four days later. The Dents brought this wrongful death suit against the Hospital, alleging that their son died as a result of both ordinary and professional negligence on the part of the Hospital and its nursing staff. The trial court initially granted the Hospital’s motion for summary judgment, but that judgment was reversed by the Court of Appeals. Dent v. Memorial Hosp. of Adel, 200 Ga. App. 499 (408 SE2d 473) (1991). The case proceeded to trial, where the evidence conflicted in several respects, including whether the alarm on the apnea monitor failed to sound, whether the nursing staff failed to turn the alarm switch to the “on” position, and whether the Hospital’s crash cart lacked several essential items for pediatric patients. The jury returned a verdict in favor of the Hospital after being instructed, in
The Hospital urges that the plaintiffs did not object to the charge with the requisite specificity. The Dents’ objection that the charge “left out the possibility of a verdict based on ordinary negligence” was “stated distinctly enough for a ‘reasonable’ trial judge to understand its nature, enabling him to rule intelligently on the specific point.” Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976).
The instruction which required a defense verdict if the jury found no professional negligence conflicted with other instructions which authorized the jury to consider ordinary negligence. “ ‘A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict, and requires the grant of a new trial.’ [Cits.]” Clements v. Clements, 247 Ga. 787, 789 (2) (279 SE2d 698) (1981). See also Moreland v. Word, 209 Ga. 463, 466 (7) (a) (74 SE2d 82) (1953).
The jury cannot be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts therein, nor to determine whether one part cures a previous error, without having their attention specially called thereto and being instructed accordingly.
Morrison v. Dickey, 119 Ga. 698 (2) (46 SE 863) (1904). The trial court’s charge was in irreconcilable conflict and was never properly corrected, and by no reasoning are we able to say that this conflict was harmless. See Johnson v. State, 148 Ga. App. 702, 704 (2) (252 SE2d 205) (1979); State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499 (1) (145 SE2d 824) (1965); Baxter v. State Hwy. Dept., 108 Ga. App. 324 (132 SE2d 863) (1963).
The dissent opines that each criticism of the nursing staff’s actions was an assertion of professional negligence and that the allegations of ordinary negligence relate only to the purported failure of the hospital to train the nurses, which could not have proximately caused the child’s death apart from some failure of the nurses to
One such administrative act is a nurse’s application of a heating pad to a patient, pursuant to the doctor’s orders, but with the switch on the wrong setting. Porter v. Patterson, supra at 71-72 (1). Such an act is indistinguishable from the nurses’ alleged failure in this case to activate the alarm on the apnea monitor as the doctor had ordered. This allegation and other averments regarding incorrect operation of the apnea monitor by the nurses and their failure to follow the doctor’s orders are not ones of professional negligence. Moreover, the allegation that the nurses failed to ensure that the “crash cart” was equipped for pediatric patients is one of ordinary negligence. Lamb v. Candler General Hosp., supra at 71 (1); Jenkins County Hosp. Auth. v. Landrum, 206 Ga. App. 753 (426 SE2d 572) (1992).
The plaintiffs alleged and presented evidence that certain actions of the nurses themselves constituted ordinary negligence. Thus, the charge was erroneous and harmful in that it might have misled the jury into believing that it could not return a verdict in favor of plaintiffs based upon this ordinary negligence.
Judgment reversed.
Dissenting Opinion
dissenting.
I respectfully dissent to the majority’s reversal of the judgment
Through legislative enactment, nursing has been recognized statutorily as a profession. OCGA § 43-26-1 et seq. When a negligence action creates an issue in which professional skill and judgment are involved, professional negligence is at issue. Lamb v. Candler Gen. Hosp., 262 Ga. 70 (1) (413 SE2d 720) (1992). Where, as here, the negligence is an alleged failure to perform nursing duties and responsibilities with the requisite degree of care and skill required of the nursing profession,
Ordinary negligence, on the other hand, is at issue where the allegedly negligent conduct involves the execution of issued instructions which execution requires no exercise of professional judgment or skill (Robinson v. Medical Center of Central Ga., supra, 217 Ga. App. at 10 (emphasis supplied)), or the performance of mere administrative or clerical tasks, again involving no professional judgment or skill. See, e.g., Candler Gen. Hosp. v. McNorrill, supra, 182 Ga. App. at 110, where moving a patient from a stretcher to a wheelchair, “an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment,” did not constitute an act of professional negligence.
The majority opinion points to two allegations of nursing conduct as alleging ordinary negligence. In Porter v. Patterson, 107 Ga. App. 64 (129 SE2d 70) (1962), cited by the majority as involving an act of ordinary negligence indistinguishable from one act of negligence involved herein, the issue was not whether the nurse’s allegedly neg
Because I believe that the alleged acts of negligence on the part of the hospital nursing staff involved matters in which the nurses exercised their professional judgment and skill based upon an overall assessment of their young patient, I must respectfully dissent to the majority’s conclusion that this tragic case contained aspects of ordi
I am authorized to state that Presiding Justice Fletcher and Justice Sears join this dissent.
The only allegation of ordinary negligence related to the hospital’s purported failure to train the nursing staff. If, however, none of the nurses’ alleged shortcomings constituted professional negligence, then whatever negligence there may have been in the hospital’s training of the nurses could not have been proximately related to the child’s death since the hospital’s alleged shortcoming did not result in the failure of the nursing staff to meet the appropriate standard of care.
While I would affirm the judgment of the Court of Appeals, I do not endorse the rationale employed by that court in reaching its judgment.
There was expert testimony that the nurses had violated the appropriate standard of care by failing to follow the admitting physician’s orders to take the child’s temperature every hour, to place a vaporizer in the child’s room, and to obtain a chest x-ray of the child. Other expert testimony found fault with the nursing personnel for failing to adjust the “gain knob” to record respiration on the apnea monitor; failing to connect both the respiratory and cardiac monitoring functions of the apnea monitor; failing to set both the cardiac and respiratory alarms on the monitor; failing to turn on the respiratory alarm; failing to make written comments about the child after connecting him to the apnea monitor; taking a lengthy period of time to connect the child to the monitor; failing to place a board under the child during resuscitation attempts; failing to establish an IV portal and to intubate the child before the treating physician arrived; failing to fill out a pediatric resuscitation medical chart before the child’s apneic event; failing to have the “crash cart” equipped with pediatric
The hospital may be held liable under a theory of respondeat superior for the professional negligence of its employee nurses. Holloway v. Northside Hosp., 230 Ga. App. 371 (496 SE2d 510) (1998); Minster v. Pohl, 206 Ga. App. 617, 621 (fn. 1) (426 SE2d 204) (1992).
Porter v. Patterson is also known for being an early statement of the “locality rule,” the standard by which is measured a hospital’s purported negligence in providing equipment and facilities. See Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118 (311 SE2d 836) (1984).
In response, the hospital presented expert testimony that nurses do not fall below the professional standard of care in not having the “preferred” instruments and “size-appropriate” equipment on the crash cart.
Reference
- Full Case Name
- DENT Et Al. v. MEMORIAL HOSPITAL OF ADEL
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- 40 cases
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- Published