Larrimore v. Homeopathic Hospital Ass'n

During 1957 Mr. Larrimore began receiving treatment from Dr. Stanley Verbit, an internist. On September 15, 1959, he was hospitalized by the doctor in an attempt to control his hypertension, which had deteriorated from a benign phase to a malignant type of hypertension, which was superimposed on the glomerulonephritis with renal failure. Dr. Verbit stated that if Mr. Larrimore’s condition was permitted to remain as it was at the time of hospitalization, it could be expected from the natural history of this disease that he would live about 3 months. Therefore, the hospitalization was a last, desperate effort to try to reverse the difficulties Mr. Larrimore was encountering by trying to convert the malignant phase of hypertension into an ordinary phase of hypertension. It was understood that if one could convert this malignancy downward, Mr. Larrimore’s prognosis would be improved. When Mr. Larrimore was admitted into the hospital, this problem was carefully explained to his wife.

The doctor determined that in order to reduce the blood pressure to a safe level, it was necessary to use a ganglionic blocking agent, and he selected a drug known as ansolysen in an attempt to manage the hypertension.

In starting the use of the ansolysen, it is not known what dosage is required or at what dosage undesirable effects may be produced. Consequently, a small arbitrary dosage of ansolysen is used in the beginning. In determining the dosage to be used on Mr. Larrimore, the doctor took into consideration that Mr. Larrimore was suffering from a chronic kidney disease and decided that the administration of this drug was to be initiated intramuscularly. Up until October 1, 1959, the

On October 1, 1959, Dr. Verbit determined that the use of parenteral injections of ansolysen was no longer justified in the attempt to obtain control of the patient’s blood pressure because his renal function, instead of improving, had deteriorated so that there was no longer any hope that the kidney disease could be controlled. Thus, since the attempt of the doctor to convert the hypertension from the malignant type to a less serious type was not accomplishing the desired purpose, it was decided to discontinue the intramuscular injections of the drug. Generally, it is considered dangerous to discontinue this type of treatment abruptly, once it is started, because there is a tendency that the hypertension will rebound and result in greater injury to the kidney. Because the doctor determined that the disease of the kidney could not be halted, he discontinued the parenteral administration of the drug and ordered the drug administered orally. Thus, on October 1,1959, at 8p.m., the parenteral method was discontinued and the oral method was begun. The doctor stated that after his order for oral administration of the drug, it was clear that it was now only a matter of time before the patient’s ultimate demise would occur.

The entry on the hospital record for Mr. Larrimore on October 1,1959, states:

“With diastolic now approaching 110 parenteral medication discontinued. Oral Ansolysen, 20 milligrams, three times a day started.”

The entry on the order sheet of October 1,1959, which constitutes direct order from the physician to the nursing staff, states:

Discontinue parenteral Ansolysen at eight p.m. Give oral Ansolysen, 20 milligrams, at eight p.m., 10-1-59, then 20 milligrams at eight p.m. and two p.m., on 10-2-59.”

The entry on the order sheet for October 2, 1959, states:

“Continue Ansolysen by mouth today and 10-3-59.”

The entry on the order sheet for October 4, 1959, states:

“Increase Ansolysen, 30 milligrams at eight p.m., 30 milligrams at two p.m., and 30 milligrams at 8 p.m., on 10-5-59.”

A nurse, who had administered the intramuscular injections, went off duty on Thursday, October 1 and remained off duty on Friday, October 2. She reported back to duty on Saturday, October 3, but did not administer any ansolysen on that day. On October 4 she saw Dr. Verbit at approximately 8 p.m., after he had been in Mr. Larrimore’s room, at the hallway desk. He had written orders on Mr. Larrimore’s sheet and he had handed her the sheet. She read the order for October 4 and asked him if he wanted her to give 30 milligrams of ansolysen. He replied: “Yes”. The nurse repeated: “30?”, and he again said: “Yes”. The doctor then left the floor. The nurse fixed the medication and returned to Mr. Larrimore’s room. She explained to Mr. Larrimore that she had a needle for him and he stated that he was not to get any more needles. Mrs. Larrimore, who was in the room with her husband at the time, explained to the nurse that the doctor had said he was not to have any more needles. Whereupon the nurse re-read the sheet and explained to the Larrimores that he was going to receive this needle. Mr.

There is no doubt that the dosage given on October 4 to Mr. Larrimore was given in error and the entry on the physician’s notes as of 10 p.m. on October 5, 1959, makes this clear in that it states:

“Patient given 30 milligrams Ansolysen intramuscularly by error. No satisfactory explanation for this has been obtained. * * * Situation explained to patient.”

Upon learning of the error, the physician ordered certain precautionary steps to be taken and returned to the hospital from his home; Mrs. Larrimore, who had gone home for the evening, was notified and returned to the hospital. The knowledge of the- error caused much activity by hospital personnel. They went in and out of the room often and the order sheet reveals that the following steps.were ordered: Special duty nurses were to be supplied around the clock by the hospital and these nurses were to take patient’s blood pressure every 15 minutes and record it. Shock blocks were to be removed from the head of the bed and patient was to be given glucose intravenously with a Y-type tubing. The patient had been sitting in a chair in his room on October 4, 1959, and after the injection, complained of violent headaches and loss of vision, and was patently disturbed.

Plaintiff’s primary claim for damages is based on the change of mental attitude of Mr. Larrimore as a consequence of receiving the excess dose of ansolysen. Although Dr. Verbit testified that Mr. Larrimore was often depressed and melancholy in the hospital prior to the erroneous dose, there is, nevertheless, evidence in the record which demonstrates that Mr. Larrimore was very pleasant, optimistic and happy before the accident, but immediately after the overdose of ansolysen, he lost his optimistic outlook and became melancholy and depressed. Mr. Larrimore’s sister, Elizabeth Edwards, stated that prior to the accident, she visited her brother frequently in the hospital and that before October 4 he was very encouraged, cheerful and optimistic, but when she saw him on Monday morning following the accident, after the “awful mistake”, he appeared to be shocked physically, morally and spiritually, and that she saw him go down dreadfully until he died. A patient in the same room with Mr. Larimore stated that prior to October 4 he was cheerful, and on Saturday, October 3, he told jokes all afternoon, but that after the accident he became depressed and “snapped at people”.

Dr. Verbit testified that he had given Mr. Larrimore no definite date as to when he could leave the hospital and go home. He stated that he explained to Mrs. Larrimore that as soon as her husband was able to reach a point where he could take special medication at home and where he could be successfully managed by her, he would allow him to go home. Mrs. Larrimore stated that Dr. Verbit talked to her about her husband going home and assured her that as soon as his blood pressure stabilized he would send him home for drug treatment, and that Mr. Larrimore was very happy at learning that he was going to be sent home. She said she understood that he was to go home sometime the middle of the week of October 5 — around the 6th, 7th or 8th — and that by reason of the excess dose of ansolysen, he did not arrive home until October 17. When he did come home, she said, his. attitude was different, the “fight was gone out of him”, and

Dr. Verbit testified that the excessive dose of ansolysen did not hasten Mr. Larrimore’s death. Both parties agreed that the excessive dose had in no way shortened Mr. Larrimore’s fife. Dr. Verbit testified that he had explained to Mr. Larrimore that the degree of blood pressure control which he had hoped to obtain was no longer possible, that he was unable to halt the disease of the kidney, and that there was no longer any hope to keep him alive. He further explained that Mrs. Larrimore may not have been aware of this because Mr. Larrimore had requested that he not notify her of his condition. The doctor explained, Mrs. Larrimore never became aware of the critical situation of her late husband in those last days during his lifetime, and that she learned of his desperate condition in those days for the first time when she was present for her deposition in these proceedings.

Defendant did not move for a directed verdict at the termination of its case, but did move for a directed verdit after the termination of the entire proceedings. Defendant, after verdict and entry of judgment, filed its motion for directed verdict or, alternatively, for a new trial.

In support of its motion for directed verdict, defendant contends:

(1) That plaintiff was required to produce expert testimony to support her claim of negligence on the part of the defendant;

(2) that plaintiff’s decedent consented to the injection; and

(3) that plaintiff is not entitled to maintain her action for decedent’s pain and suffering and mental anguish because there was no actionable physical injury.

Defendant first argues that this Court should have directed a verdict for defendant at trial because plaintiff failed to produce expert testimony pertaining to the professional standards required and practiced by nurses in hospitals in the community, and that as a result the jury could not perform its function in determining whether the nurse in question practiced that degree of care and skill generally exercised by nurses in hospitals in the community.

On the issue of the nurse’s negligence, it is true ordinarily that evidence of the requisite skill and care exercised by a nurse generally should come from experts. Wilmington General Hospital v. Manlove, Supreme Court Del., 174 A. 2d 135 , decided October 12, 1961; Stickelman v. Synhorst, 243 Iowa 872 , 52 N. W. 2d 504 . Anno. 141 A. L. R. 5 , 6. However, this rule may be modified in cases where the subject matter relates to evidence that is within the understanding of the ordinary juror. In Christian v. Wilmington General Hospital Association, 11 Terry 550 , 135 A. 2d 727 , 730, an action was brought against the hospital because of the alleged negligent failure of an intern to diagnose properly and treat severed tendons in plaintiff’s hand. The Supreme Court, in affirming the directed verdict below, noted:

“It is, of course, obvious that in some instances a jury of laymen could determine without the testimony of experts that a treatment given was so unrelated to the injury or illness of the patient as to make obvious to anyone the failure of the doctor to exercise acceptable standards of care.”

The injured patient should not always be thrown out of Court when he is unable to produce expert testimony to prove his allegations of negligence. However, the requirement of medical testimony must be met if “the matter under investigation is intricate and abstruse or so little understood” that

There is evidence in this case from which a jury could conclude, without the aid of experts, that the nurse failed to exercise ordinary care. The October 4, 1959 order was not clear, unless read in conjunction with the entries on the order sheet for the preceding days. The entry for October 4, and the entries for the preceding days were on one sheet of paper, although the entries for the days immediately prior to October 4 were covered with various short sheets of paper, which could have been raised or withdrawn so that the previous days’ orders could have been seen. If this procedure had been followed, after the protests by the Larrimores, the unfortunate incident could have been avoided, since the previous entries made it clear that the ansolysen was to be administered orally. The jury was entitled to conclude from the evidence most favorable to the plaintiff that the nurse used less than ordinary care under the circumstances. Furthermore, the testimony of some of the experts could be interpreted as indicating a lack of care on the part of the nurse. The head nurse was quoted as having stated that she could not understand how this had happened and that it would be a “long day” before another similar mistake was made in the hospital. Also, the doctor was alleged to have remarked that the nurse had made a very bad mistake.

Defendant next contends that the plaintiff’s decedent, after an original protest, finally consented to the intramuscular injection of ansolysen by the nurse, who had no knowledge that her act might be harmful, and that as a consequence of his consent there can be no liability. Consent generally prevents the actor’s conduct from being tortious and therefore prevents him from being liable to the person who has given his consent to the invasion of his interest. Restatement, Torts, Sec. 49(b).

This Court cannot hold from the circumstances of this case that the plaintiff’s decedent consented to the overdose of ansolysen by parenteral administration which the nurse mistakenly believed was ordered by the doctor. This patient and his wife vigorously objected to the intramuscular injection. They were both told that the doctor had ordered the injection after the nurse consulted with the doctor in the hall. When the patient reluctantly permitted the injection, he agreed only to a lawful and proper administration of the drug, but not to an overdose. There are no facts in this case which would indicate that the patient had any advance knowledge that he was receiving a dose of ansolysen which was 15 times greater than the injections he had received prior thereto. Certainly the patient did not consent to any careless act by the nurse. It is immaterial that she did not know of the harmful effects of her act upon the patient.

Defendant next urges that plaintiff cannot recover for decedent’s pain, suffering and mental anguish because there was no physical impact.

The defendant admits that proof of pain and suffering and emotional disturbance are compensatory when accompanied by physical impact. My finding that impact was present, therefore, ends this argument, and leads me to decide that no verdict should have been directed on the basis proposed by the defendant.

I now turn to defendant’s motion for a new trial on the ground that the verdict was excessive in amount.

Plaintiff’s primary claim for damages is based on her husband’s personality change that took place after the overdose of ansolysen. The evidence indicated that before the injection, the plaintiff’s decedent was always optimistic about his ultimate recovery, and that even though he understood the nature of his illness, he continued to be a pleasant and contented individual. After the overdose, the evidence revealed that decedent appeared to lose hope, adopt an attitude of “What’s the use?”, and generally became a melancholy individual. The only medical evidence presented by the plaintiff was the testimony of the treating physician, who explained that, in his opinion, Mr. Larrimore’s attitude had not changed

The jury has a broad discretion in determining the amount of damages in a personal injury case. However, the trial court has responsibilities, which it must assume, upon its recognition that there has been a recognizable injustice in the rendering of a verdict. In fact, judicial control over the size of verdicts is a safeguard against abuse in cases where the plaintiff’s essential grievance is of an intangible sort. It is obvious that the determination of whether or not a verdict is excessive is difficult. Each case rests on its own facts and circumstances. Lacey v. Beck, Del. Super., 161 A. 2d 579 , 581.

Plaintiff’s major complaint was that Mr. Larrimore lost his optimism concerning his recovery and that he became depressed because of the overdose. The damages proved which could be reasonably attributable to the overdose were not of any substantial nature but were, when observed in proper perspective, of a temporary physical and mental disturbance.

Emphasis was placed on the injury Mr. Larrimore suffered as a result of the parenteral administration of the glucose solution which was required as a result of the overdose. The doctor stated that this was a major reason for decedent’s

An analysis of the testimony leads me to the conclusion that the award of $30,000 is grossly disproportionate to the injuries shown, so as to indicate that the verdict was arrived at either from mistake as to the nature of the cause of action and damages suffered or resulted from passion, prejudice, whim or caprice. It is difficult to determine how the jury returned with such a large verdict under the facts of this case. However, there are certain factors which may help to explain why the jury reached its excessive verdict.

The verdict could not be justified if it was based on a death action since all the parties agreed that there was no evidence that the ansolysen was in any way responsible for hastening the death of the decedent. The true nature of the case was explained to the jury; nevertheless, the jury could have placed an erroneous interpretation upon the evidence and concluded that the issue of proximate cause of Mr. Larrimore’s death was before them because of the many references, without objection, during trial to the overdose of ansolysen and Mr. Larrimore’s subsequent death. For example, Mr. Larrimore’s sister testified that as a result of the overdose “he was shocked physically, morally and spiritually” and that she “saw him go down dreadfully until the day he died”. Mr. Foster, his brother-in-law, stated that after the overdose, his “mental framework and outlook changed and he became

There is evidence in the record from which the jury might have concluded that the overdose of ansolysen was exclusively responsible for Mr. Larrimore’s loss of optimism and depression during the remaining days of his life. It will be recalled that Mr. Larrimore was a dying man. The doctor had told him that there was no longer any hope. There was testimony that decedent’s changed mental attitude until the moment of his death on October 30, 1959, was due exclusively to the overdose. Is it not a reasonable inference to be drawn from the admitted facts and circumstances that Mr. Larrimore’s depression during the twenty-six days before his death may have been due, in part, to his knowledge that death was “staring him in the face”? Cf. Wilson v. Derrickson et al.,

Mrs. Larrimore, the widow, was an especially ingratiating and appealing witness. She invoked much sympathy by her quiet, sincere behavior on the witness stand, and her genuine display of love for her husband and family. It was clear

The verdict is grossly excessive. I can only conclude that it must have resulted from the jury’s failure to understand the nature of the case and the actual damages suffered or that it was the result of passion, prejudice, whim or caprice. Under Superior Court Civil Rule 59, Del. C. Ann., the trial judge has discretion to order a partial new trial. Rule 59 was intended to prevent the retrial of any issue already properly decided and to limit any new trial only to those issues which were incorrectly decided. Cf. Yates v. Dann, D. C. Del., 11 F. R. D. 386 , 392. Where the issue of liability may be severed from the issue of damages, a new trial on the latter issue alone is proper if it can reasonably be said that the liability issue has been determined by the jury. This is a proper case where the issue of liability is clearly severable from the issue as to the amount of damages. I therefore order a new trial on damages alone.