Defendant-appellant, Doctors Hospital of Mobile, Inc., appeals from judgments in the sum of $60,000 and $15,000 entered in two suits commenced in the Circuit Court of Mobile County, one for personal injuries by Lavert D. Kirksey (plaintiff-appellee-wife) and the other for loss of services by Clyde H. Kirksey (plaintiff-appellee-husband). The two cases were consolidated for trial in the Mobile County Circuit Court, and the jury returned verdicts in favor of Lavert Kirksey for the sum of $60,000 and in favor of Clyde Kirksey for the sum of $15,000. Appellants' motions for a new trial in both cases were denied. This appeal followed. The cases were consolidated on appeal by order of this court.
Appellant urges error by the trial court in numerous particulars. Several of the assignments are well taken. All of the assignments will not be considered here.
Appellant's main argument is made in connection with the giving by the trial court of written instructions to the jury requested by the plaintiffs, which the defendant claims were erroneous. Plaintiff claimed that a nurse was negligent in administering a postoperative injection, resulting in severe damage to one of her legs.
The giving of the following charge requested by plaintiffs is assigned as error:
The court in Eberlein, in determining Charge 1 in that case to be erroneous, said:
The giving by the trial court of Charge 4 was erroneous, and that charge should not have been given. The charge submitted a question of law to the jury and the giving of the charge is reversible error. Eberlein, and cases therein cited.
The trial court gave at plaintiff's request the following written Charge 13:
Charge 13 is erroneous, in that, like Charge 4 already discussed, it uses the term "competent medical care" to describe the obligation which Doctors Hospital owed to patient Kirksey. This court has on several occasions spelled out the duty which a hospital owes to a patient. Generally, the measure of duty owed has been stated as that degree of care, skill, and diligence used by hospitals generally in that community. See Mobile Infirmary v. Eberlein, supra; South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250 (1936).
Appellees argue that the giving of Charges 4 and 13 should not work a reversal. They use two main arguments. One is that other requested written charges were given which adequately and correctly defined the duty owed by the hospital and that the trial court's oral charge also correctly defined the duty owed by the hospital. Secondly, appellees say that hospitals should no longer be judged solely by the
This court, by setting out this general rule, recognizes exceptions. In South Highlands Infirmary, Inc. v. Galloway, 233 Ala. 276, 171 So. 250 (1936), the court cautioned:
Charge 13 here predicates liability of the appellant on the breach of a "duty to furnish competent medical care" whereas the duty is to exercise "that degree of care, skill and diligence used by hospitals generally in the community." The charge misstates the measure of duty as a predicate for the appellant's liability and such misstatement constitutes reversible error. Thompson v. Havard, 285 Ala. 718, 235 So.2d 853 (1970); Reaves v. Maybank, 193 Ala. 614, 69 So. 137 (1915).
Charge 10, given by the trial court at the request of appellee, is defective for the same reasons as is Charge 13 discussed above. This charge reads:
This charge attempts to define actionable negligence for which the hospital would be liable. However, the charge defines the duty of a nurse-employee of the appellant "to know the fatal dosage of all drugs and the danger of an overdose of any type of drug and the proper way to administer any drug." [Emphasis supplied.]
Having determined that the trial court's giving of Charges 4, 10 and 13 constitutes reversible error in the instant case, other errors assigned, some of which we believe have merit, will not be discussed here with the hope that they will not occur on a new trial. The judgments of the trial court are due to be reversed and remanded in both cases.
Reversed and remanded.
MERRILL, HARWOOD and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result.
"It is perfectly clear that nurses are employees of the institution when performing their routine nursing functions. They are in control of the hospital even when performing a professional act. Therefore, in most instances, the hospital is clearly liable for a nurse's medication error and it would seem that nurses must know the fatal dosage of all drugs and be familiar with the usually acceptable rules and routes of drug administration."