Forsyth v. Sisters of Charity
Forsyth v. Sisters of Charity
Opinion of the Court
Defendant appeals from a judgment entered by the trial court on a jury verdict awarding plaintiff damages for personal injuries. We affirm.
In late December, 1975, plaintiff, who was 75 years old at the time, entered Providence Hospital to undergo a total hip replacement operation.
Plaintiff sued, alleging that defendant was negligent in the following respects:
"a. In failing to properly restrain plaintiff so he would not fall from a moving slant table;
"b. Allowing plaintiff to fall from a physical therapy slant table.”
At the close of the evidence, the court denied defendant’s motion for a directed verdict. The juiy found for plaintiff, awarding $35,000 damages. The court denied defendant’s motion for judgment n.o.v. and, in the alternative, for new trial.
As defendant’s first assignment of error, it argues that the court erred in allowing plaintiff to advance the theory, not pleaded in the complaint, that defendant "negligently overfatigued plaintiff by encouraging him to walk an excessive distance in physical therapy.” This is really an objection that the evidence was beyond the scope of the pleadings. This issue arises from testimony by one of plaintiff’s expert witnesses to the effect that the therapist, by walking plaintiff 60 feet in his first walk after surgery, was "taking a chance of overfatigue.” The court overruled defendant’s objection to the admission of this testi
The court instructed the jury at the time:
"Ladies and gentlemen, ultimately, when this case is submitted to you, I will tell you the claims which the plaintiff made as to the — the acts that the plaintiff claims were negligent acts on the part of the hospital or its employees. It is only those claims which you would decide upon as to whether or not those particular claims were proven.
"The walking for any distance, in and of itself, the plaintiff has not complained that that was a — or allowing him to walk — was not a negligent act. That is not claimed as such.
"I don’t want to make any further comment. I think that’s the most I can do at this time, Mr. Renner.
"But bear in mind the fact that the plaintiff was asked to walk any particular distance — that’s not complained as being a negligent act on the part of the hospital, not that alone.”
These cautionary words sufficiently advised the jury not to consider the testimony on excessive walking as establishing a separate theory of negligence. The trial court did not err in admitting the testimony in question.
As its second assignment of error, defendant argues that the court erred in not directing a verdict for defendant at the close of all the evidence, contending that plaintiff failed to prove either specification of negligence advanced in his amended complaint. In reviewing the denial of a directed verdict, "[w]e examine the facts to determine whether there was
"Q When did he start complaining about feeling weak and faint?
"A After he had returned from the third trip back onto the tilt table, standing there, he stated he was feeling, to my recollection, a little faint.
"Q Did you strap him when he told you that?
"A No.
"Q Did you call for help when he told you that?
"A No.
"Q Did you give him support when he told you that?
"A No.
"Q You were aware, were you not, with a total hip replacement, that the people, by rotating the hip starting to fall, even if they didn’t go all the way to the ground, or twisting, could cause a dislocation?
"A Yes.”
From this testimony alone, the jury could find defendant negligent, and that this negligence caused plaintiffs injuries. We conclude that the trial court did not err in denying defendant’s motion for a directed verdict.
Affirmed.
A total hip replacement involves the surgical insertion of a plastic socket into the socket of the hip, and a metal shaft, with a ball on the end, into the femur. The new ball and socket approximate the natural bony structures they replace.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.