Summary
recognizing a "distinction between medical care and custodial or routine hospital care."
Summary of this case from Estate of Fiebrink v. Armor Corr. Health Servs., Inc.Opinion
No. 75-405.
Argued November 1, 1977. —
Decided December 13, 1977.
APPEAL from a judgment of the circuit court for Milwaukee county: GEORGE A. BURNS, JR., Circuit Judge. Reversed and remanded with directions.
For the appellant there was a brief by Robert C. Watson and Arnold, Murray O'Neill, with oral argument by Mr. Watson, all of Milwaukee.
For the respondent there was a brief by Stewart G. Honeck, Roy W. Arndt and Michael E. McMorrow, with oral argument by Mr. Honeck, all of Milwaukee.
FACTS.
The plaintiff-respondent, Doyle M. Payne, individually and as the special administrator of the estate of his deceased wife, Gladys B. Payne, sued for the personal injuries his wife sustained when she attempted to commit suicide by setting fire to her clothing with matches while a patient at the Milwaukee Psychiatric Hospital. The action was brought against the following defendants: Milwaukee Sanitarium Foundation, Inc., a Wisconsin corporation doing business as Milwaukee Sanitarium Foundation and the Milwaukee Psychiatric Hospital; Steven V. Hansen, M.D., Mrs. Payne's attending psychiatrist; Morton Josephson, M.D., the clinical and medical director of the hospital; and the Milwaukee Sanitarium Clinic Chartered, a Wisconsin service corporation which staffed the hospital and of which Drs. Hansen and Josephson were members.
On January 8, 1970, Gladys Payne was admitted as a patient to the Milwaukee Psychiatric Hospital. She was forty-nine years old. She had been hospitalized for depression in 1956. In 1969, after she attempted suicide by taking an overdose of drugs, she was hospitalized successively in Racine, Burlington, the state of Florida, and finally in the Milwaukee Psychiatric Hospital.
Upon her admission to the Milwaukee Psychiatric Hospital, Mrs. Payne was assigned to Dr. Hansen who diagnosed her condition as "involutional melancholia" or severe and psychotic depression. Dr. Hansen assigned her to Sleyster Hall, an open unit with no limitations on the freedom of the patients to go about the institution unaccompanied. In Sleyster Hall, on February 11, 1970, an attendant observed Mrs. Payne standing in front of an open window. She told the attendant she was going to jump, because she did not want to live. Although her condition had improved somewhat since her admission, after this suicide gesture Dr. Hansen ordered her transferred to Kradwell 2-B, a maximum security unit. In Kradwell 2-B patients were kept under surveillance, were not permitted to leave the ward and were not permitted to have matches or light their own cigarettes. An attendant would light cigarettes for them.
When Mrs. Payne became even more depressed by the restrictive conditions in Kradwell 2-B, Dr. Hansen transferred her to Kradwell 3, a limited security unit, where patients were permitted to close their doors, to have matches and to light their own cigarettes, unless the psychiatrist ordered otherwise. In Kradwell 3 the unit door was either closed or open, that is, the patients were free to leave the unit and go about the grounds unattended, depending on the directions given by the attending psychiatrist.
Except for an occasional pass to visit relatives and a one-day release and reentry for insurance purposes, Mrs. Payne remained in Kradwell 3 for the balance of her stay at the hospital. When Mrs. Payne set her clothing on fire she had been in Kradwell 3 for four weeks. During that time the psychiatrist's orders with respect to her freedom to move about the hospital changed four times. When she was first assigned to Kradwell 3, Dr. Hansen ordered her to be attended when she left the ward to go out onto the grounds of the hospital. However, on March 5, 1970, he permitted her to be unattended and to leave the grounds on a pass for outside visits. On March 20, 1970, he amended the order to require her to be attended.
On March 28, 1970, Mrs. Payne spent the day on a pass with her sister and brother-in-law. She had a good day until she was being driven back to the hospital, when suddenly she clutched at her brother-in-law's throat and tried to jump out of the car. She said she did not want to be "put back in the hole." Whether this was a reference to the hospital or its maximum security unit, Kradwell 2-B, is not clear but the incident was charted. Dr. Hansen saw Mrs. Payne thereafter, on March 30, 1970, and amended his orders to permit her to be unaccompanied in and about the hospital.
Two days later, on April 1, 1970, at 7:15 a.m., one of the two attendants on duty on Kradwell 3, Nurse Ritz, checked the ten patients in the unit and saw Mrs. Payne in her room. At approximately 7:30 a.m., while Nurse Ritz was at the nursing station checking reports and measuring medications, Mrs. Payne came out of her bedroom, smiled and said "Good Morning," got a cup of coffee and took it to the bathroom with her. Approximately ten minutes later, Gladys Payne came running down the hall with her nightclothes aflame. The other attendant on duty, Psychiatric Aide Morley, was himself seriously burned in putting out the flames.
Mrs. Payne was severely burned and was taken to St. Mary's Hospital Burn Center. At St. Mary's Hospital she told her husband that she had tried to destroy herself with matches. She suffered second and third-degree burns which required skin grafts.
(Mrs. Payne was deceased at the time this action was commenced. The record does not disclose the cause of death. However, on oral argument the court was informed that Mrs. Payne did not die as a result of the burns. She finally succeeded in committing suicide by jumping out the window of the nursing home in which she was recuperating.)
In his complaint the plaintiff alleges that all of the defendants were negligent (1) in permitting Gladys Payne, a known suicidal patient, to have access to matches and to light her own cigarettes, and (2) in failing to properly supervise her in view of her easy access to this dangerous instrumentality.
The case was tried to a jury. The plaintiff did not present expert testimony regarding the standard of care required of the defendant doctors. The plaintiff sought to present expert testimony concerning the practice of other hospitals in the area, but the court refused to admit this testimony on the grounds that expert testimony was not required to prove the hospital's negligence. The plaintiff does not challenge this ruling on appeal. The defendants also sought to present expert testimony regarding the standard of care for the supervision of the mentally ill, but the trial court again refused to admit this testimony with respect to the negligence of the hospital. At the close of plaintiff's case, motions for nonsuit were made on behalf of all defendants. The trial court granted the motion for nonsuit with regard to the attending psychiatrist, Dr. Steven V. Hansen, and Dr. Morton Josephson, the clinical and medical director of the hospital, on the ground that the plaintiff failed to present expert testimony to establish the standard of care required of them. The trial court granted the motion for nonsuit of Milwaukee Sanitarium Clinic Chartered service corporation on the same ground. The trial court denied the motion for nonsuit of defendant Milwaukee Sanitarium Foundation, the operator of the hospital. Thus the case went to the jury with the hospital as the only remaining defendant. Accordingly, the court instructed the jury that they could find the hospital negligent only if they found the attendants on Kradwell 3 negligent. The jury found the hospital causally negligent and awarded the plaintiff $23,924.32 in damages for Mrs. Payne's pain and suffering and for the medical expenses incurred by Mr. Payne. The plaintiff sought no damages for loss of society and companionship. The record discloses that he served divorce papers on Mrs. Payne while she was recovering from her burns. The hospital has appealed from the judgment.
It was not too long ago that hospitals for the mentally ill were known as asylums for the insane. Emphasis was upon the custodial aspect of the institutionalization — barred windows, locked doors, straitjackets and physical restraint to prevent inmates from harming themselves or others.
Today, with more known about the cause and cure of mental illness, the mental hospital has become primarily a treatment facility. While maximum security units are retained, the primary emphasis is now upon therapy and rehabilitation. An attending psychiatrist's order that a particular patient be assigned to an open or closed unit represents a balance of both protection and treatment.
When Gladys Payne came to the Milwaukee Psychiatric Hospital, she brought with her a long history of depression, including at least one suicide attempt. Despite this history the psychiatrist assigned to her at the hospital ordered her placed in Sleyster Hall, an entirely open facility where she would be permitted to light her own cigarettes, walk around the grounds unattended, and certainly go to the bathroom without someone going with her. The aim of the treatment, Dr. Hansen testified, was "to balance safeguarding her person against such a restrictive ever-watchful hovering approach that she would lose all initiative and feel lost."
Dr. Hansen testified that the patient's condition appeared to improve somewhat during her stay in Sleyster Hall. However, when she was observed standing before an open window contemplating suicide, Dr. Hansen reevaluated her therapy and ordered her transferred to the maximum security unit. There she was under constant surveillance. She could not leave the locked ward, and she was not permitted to light her own cigarettes. In this restrictive environment her condition deteriorated. Her family testified that she became even more depressed and withdrawn. Once again, balancing the two aims of protection and rehabilitation, Dr. Hansen transferred her to a less restrictive unit where she could light her own cigarettes and, if the doctor so authorized, could move about the hospital grounds unattended.
Dr. Hansen knew that on Kradwell 3 Mrs. Payne would be permitted to have matches and to light her own cigarettes. He made no orders to the contrary. Instead, his effort to balance therapy with protection took the form of special orders with respect to her freedom of movement. To begin with he ordered her to be accompanied when she left the hospital building to walk around the grounds. Later he amended that order to permit this patient to walk the grounds unattended, and to be given passes for visits to relatives. Still later the psychiatrist directed that she be accompanied when she left the ward. Finally, even after an incident in which she tried to jump out of a car on her way back to the hospital, he permitted her to be unattended about the hospital and grounds.
The nonsuits granted by the trial court with respect to Drs. Hansen and Josephson are not challenged on this appeal. Therefore, the negligence of Drs. Josephson and Hansen in permitting known suicidal patients to have matches or in assigning Mrs. Payne to Kradwell 3, where they knew she could have matches, or in failing to make orders to insure more careful supervision, is not before the court on appeal. What is before us on this appeal is the denial of defendant hospital's motion for nonsuit and the sufficiency of the evidence to support a verdict finding the hospital, through its attendants on Kradwell 3, causally negligent. This, however, brings us to the issue of whether the supervision given by the hospital staff to this patient, including the freedom to go to the washroom unattended, are matters requiring expert testimony to establish negligence.
The duty of care owed a patient by a hospital in this state is one of ordinary care under the circumstances. However, in applying this standard, there is to be recognized a distinction between medical care and custodial or routine hospital care. Where the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary. However, the standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony. The issue, then, is whether the negligence alleged in this complaint "must, like in malpractice cases, be proved by expert testimony." As to the treating psychiatrist, the clinical director and the staffing corporation, the trial court held that expert testimony as to standard of care was required. We would not quarrel with that finding if it were before us for review. But we fail to see why the same conclusion is not required as to the identical claims of negligence made against the hospital.
Eden v. La Crosse Lutheran Hospital, 53 Wis.2d 186, 192, 193, 191 N.W.2d 715 (1971), citing Schuster v. St. Vincent Hospital, 45 Wis.2d 135, 172 N.W.2d 421 (1969), and quoting the following language of Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 149, 172 N.W.2d 427: "The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require." See also: Dahlberg v. Jones, 232 Wis. 6, 11, 285 N.W. 841 (1939).
Cramer v. Theda Clark Memorial Hospital, supra, n. 1, at 149.
Id. at 149.
Id. at 150.
Id. at 149.
Dr. Josephson, the clinical director, testified: "The policy at the hospital was that patients could possess matches and smoking material except in Kradwell 2-B which was the maximum security unit and the admissions unit unless a doctor's order indicated otherwise." [Emphasis supplied.] Dr. Hansen transferred Mrs. Payne from the maximum security unit to the Kradwell 3 unit where he knew she could have smoking materials, and he gave no orders limiting her access to smoking materials. Her assignment to Kradwell 3 and his subsequent order that she be permitted to go unattended about the institution were medical judgments on his part as to the proper balance of freedom and confinement most likely to be therapeutic for Gladys Payne. In an offer of proof rejected by the trial court Dr. Hansen testified that supervision of Mrs. Payne should avoid an "ever-watchful hovering approach" that would make her "lose all initiative and feel lost." That medical judgment and a claim of negligence based upon it must be established by expert testimony, whether the claim is directed to the treating psychiatrist or to the hospital that carried out this directive.
The plaintiff challenges the adequacy of the hospital's offer of proof. However, when the offer of proof is considered in the context of the testimony of Dr. Hansen before the jury, stricken by the trial court, that precipitated the offer and immediately preceded it on the record, it supplied a meaningful basis for the trial court's ruling and for this court's review. State ex rel. Schlehlein v. Duris, 54 Wis.2d 34, 39, 194 N.W.2d 613 (1972).
The evidence shows that in permitting Mrs. Payne to take her coffee with her to the bathroom unattended on April 1, 1970, the two attendants on duty were supervising Mrs. Payne in conformity with the most recent order of the treating psychiatrist that the patient be permitted to leave the unit unattended and unaccompanied. Without question this order of March 30, 1970, contemplated that Mrs. Payne could go to the bathroom and remain there for ten minutes without someone going along to observe her. Where an attending psychiatrist specifically ordered a suicidal patient to be unattended, an eastern court held that, in the absence of some notice to the staff that a suicide attempt was imminent, the hospital, as a matter of law, was not negligent if the patient used this freedom to leave the ward and harm himself. In that case the court held: "It was not incumbent upon the [hospital staff] to apply restraints or supervision which the attending physician did not desire, at least in the absence of anything to indicate a change in the patient's condition." That is sound law. The hospital staff, here the nurse and psychiatric aide, are not to be faulted for following the specific orders of the treating psychiatrist as to extent or degree of supervision, at least not in the absence of any unusual behavior on the part of Mrs. Payne to give them reason to depart from those orders.
State v. Washington Sanitarium Hospital, 223 Md. 554, 165 A.2d 764 (1960).
Id. at 766.
This is not to say that the nursing and custodial staff has no further duty of care beyond following the doctor's orders. The situation would be different if, following an order permitting the patient to be able to leave the ward unit unattended, her behavior would have nonetheless alerted a reasonable person to the need for stricter supervision. Thus where immediately prior to an attempted suicide the patient had spent a sleepless night, exhibited bizarre behavior, including delusions, and had repeatedly stated that she must leave the hospital and would not obey the nurse's orders, a federal court upheld a verdict for plaintiff against the hospital, holding that under the special circumstances which arose, the patient should have been placed under constant supervision. That is not the case before us. Here the attending psychiatrist's order giving the patient freedom to move about without supervision was made on March 30, 1970. The evidence was that the following day, March 31, 1970, was for this particular patient a normal and uneventful day, with nothing unusual or alarming about it. On April 1, 1970, Mrs. Payne arose, got herself coffee at the nurse's station, smiled, and said "Good Morning," and took the coffee with her to the bathroom. On this record the patient gave the staff no reason to do other than supervise her in a manner consistent with the doctor's order of March 30, 1970, permitting her to be unattended.
Mounds Park Hospital v. Von Eye, 245 F.2d 756 (8th Cir. 1957), affirming Von Eye v. Hammes, 147 F. Supp. 174 (D.C. Minn. 1956).
The plaintiff on appeal argues that Mrs. Payne's cheerfulness on the morning she set fire to herself should have triggered stricter supervision by the staff. The difficulty with this contention is that there is no support for it on this record. Dr. Hansen was asked whether "having a very good day" can also indicate a suicide potential and he answered, "Most often improvement means just improvement. Sometimes a sudden improvement is a warning that the patient is thinking of suicide." [Emphasis supplied.] That answer is hardly the expert testimony foundation required to establishing that smiling and saying "Good Morning" should have put the nurse or aide on notice that despite the doctor's orders Mrs. Payne should be supervised more closely and checked on in the bathroom.
In establishing the negligence of a hospital the necessity for expert testimony depends upon the type of negligent acts involved. Expert testimony should be adduced concerning those matters involving special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, and which require special learning, study or experience. In some cases the supervision and custodial care of mental patients is a subject within the realm of the ordinary experience of mankind. However, here the supervision ordered by the treating psychiatrist related to therapy as well as security. Any claim of negligence based on the lack of supervision given, whether brought against the attending psychiatrist or the hospital and its staff, requires expert testimony to establish. Because the trial court refused to permit either party to present such expert testimony, we conclude that the issue of the negligence of the hospital has not been fully and fairly tried and requires a new trial with respect to that issue.
Cramer v. Theda Clark Memorial Hospital, supra, n. 1, at 149, 150.
Id. at 150, citing Pollock v. Pollock, 273 Wis. 233, 246, 77 N.W.2d 485 (1956); Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 565, 106 N.W. 1081 (1906); Jacobson v. Greyhound Corp., 29 Wis.2d 55, 63, 138 N.W.2d 133 (1965).
Compare: Dahlberg v. Jones, supra, n. 1; Torrey v. Riverside Sanitarium, 163 Wis. 71, 157 N.W. 552 (1916).
By the Court. — Judgment reversed and cause remanded with directions for a new trial on the issue of the negligence of the Milwaukee Sanitarium Foundation, Inc.