Action in negligence by plaintiffs Mary Puls and Maynard Puls, her husband, against defendant hospital to recover damages resulting from personal injuries sustained by Mrs. Puls while a hospital patient.

On November 18, 1960, Mrs. Puls was admitted as a patient to the psychiatric ward of St. Vincent Hospital in Green Bay. She was then a forty-four-year-old housewife and the mother of two children. Her attending physician was Dr. Wunsch, a psychiatrist. His diagnosis was that she was suffering from a moderately severe anxiety reaction, a form of neurosis. She did not have delusions and was not insane. Dr. Wunsch testified that she was in a state of subjective unrest and tension without sufficient objective cause to account for the level of this tension. She had been experiencing problems at home and was worried about her family and about her relatives in Australia.

During her stay in the hospital, she was not confined to her bed, but was up and dressed except during sleeping hours. She was permitted during the day to leave the hospital for the purpose of shopping or visiting her home in Seymour.

During the day of January 18, 1961, Mrs. Puls and another female psychiatric patient had gone shopping in Green Bay. They became separated, which disturbed Mrs. Puls. Later in the afternoon she went to her home for an hour and a half, and saw her husband and children. That evening her husband visited her at the hospital, and they quarreled. Dr. Wunsch interviewed her later that evening and found her to be turbulent and unsettled.

About 10:30 p.m., before retiring, she went to the place in the ward where the day's final medication was customarily handed to each patient in a cup. Mrs. Puls' medication consisted of doriden, a sleep-inducing drug, and a tranquilizer. She swallowed these in her room together with another tablet of doriden which had been given to her on a previous night. About an hour later she took two tablets of sodium amytal. Both doriden and sodium amytal tablets are commonly referred to as "sleeping pills." The sodium amytal had been prescribed by her family physician some time before she had entered the hospital. She procured the sodium amytal on one of her visits home and, upon returning to the hospital, hid the tablets in her room. The hospital personnel were unaware of this. After her accident a vial containing some of these sodium amytal tablets was found secreted in a flower pot in Mrs. Puls' room.

On January 18 and 19, 1961, there were 17 patients in the psychiatric ward. From 11 p.m. on the 18th to 7 a.m. on the 19th, these patients were being attended by Mrs. Pugh, an experienced nurse's aide, and Sister Bertrandine, a nurse. At 1 a.m., Mrs. Pugh checked Mrs. Puls and found her to be unusually drowsy. At 1:30 a.m., Mrs. Pugh helped Mrs. Puls to the bathroom, and found her unsteady on her feet and unable to make the trip by herself. She testified that Mrs. Puls was mumbling incoherently. She asked her whether she had taken anything, and Mrs. Puls responded, "No, and you probably will have to pump my stomach in the morning." Mrs. Pugh reported this to Sister Bertrandine. At 2 a.m., Sister Bertrandine tried to arouse Mrs. Puls, but she did not respond. She checked Mrs. Puls' blood pressure, respiration, pulse, and pupils. She determined that this was an emergency situation and aroused Sister Rebecca, the supervisor of the psychiatric division. They decided to notify Dr. Wunsch and did so by phone at 3 a.m.

Dr. Wunsch testified that, on the information available to him at the time, he did not think that Mrs. Puls had taken a massive overdose. He did not order stomach pumping for this reason, and because he thought it too late for pumping to do any good. He also considered the complications involved with an unconscious person. He saw no need for ordering guardrails. He did not order private duty nursing, because it takes a day or two to obtain such a nurse. He did not order a mere "sitter," because it upsets the patients. He told Sister Bertrandine in his' telephone conference with her, "Watch her as close as you can. Keep checking her pulse, blood pressure and respiration."

On this basis Mrs. Pugh looked in on Mrs. Puls every ten or fifteen minutes. The hospital took no additional precautionary measures, because the patient's attending psychiatrist had ordered none. Mrs. Puls did not respond throughout the early morning hours. However, her pupils were dilating, which indicated improvement.

At 7 a.m. on January 19, 1961, the day shift came on. There were seven or eight nurses on duty to care for the 17 patients in the psychiatric division. At 7:30 a.m. Dr. Wunsch and Sister Rebecca entered Mrs. Puls' room. Dr. Wunsch testified that when he spoke to Mrs. Puls she opened her eyes and said, "What are you doing here" or "Get out of here." She then turned on her left side and moved all of her extremities when she turned. He stated that this had demonstrated to him she could look after herself in bed and was no longer in danger. Sister Rebecca testified that at this time Mrs. Puls seemed "quite alert" although a little bit sleepy, and she did not feel that Mrs. Puls' condition presented any special problem. Dr. Wunsch's orders upon leaving the room were "Keep checking her."

The hospital chart contains a notation that Mrs. Puls could not be aroused for breakfast. Other than this there is no notation of any nurse or attendant visiting her room until the incident of the fall which occurred at approximately 9 a.m. However, the testimony was that a notation was not made every time a nurse or nurse's aide enters a patient's room. Sister Rebecca was asked the following questions and gave the following answers thereto:

" Q. All right, you don't recall if you visited her room again between that time [7:30 a.m.] and the time of — or shortly after the fall? A. I really don't remember.

" Q. In the regular routine of the ward she would have been checked from time to time? A. Yes."

At about 9 a.m. a Mrs. Poavey, a patient, called from Mrs. Puls' room to Mrs. Berns, a nurse on duty, "Mary's in trouble," referring to Mrs. Puls. Mrs. Berns found Mrs. Puls on her feet staggering toward the foot of the bed. Mrs. Berns helped her back in bed, but Mrs. Puls flipped partially out of her grasp and fell off the other side of the bed. Mrs. Berns testified that only the lower half of Mrs. Puls' body struck the floor. Sister Rebecca and another nurse then came and helped get Mrs. Puls back in bed.

Mrs. Poavey was deceased at time of trial. Mrs. Puls testified with respect to the events of this morning of January 19, 1961, as follows: She got out of bed and hung onto the nightstand. She attempted to put on her slippers and kept falling down and floundering around on the floor. She thought to herself, "There's something wrong with me this morning. I can't make it for breakfast." She grabbed the bed clothes and tried "to hoist myself up onto the bed." She pulled herself too far onto the opposite side of the bed and "flipped" between it and the other bed. She then remembered seeing Mrs. Poavey standing at the end of the bed but did not know how Mrs. Poavey got there.

Apparently, it was at this point that Mrs. Poavey called to Mrs. Berns for help. Mrs. Puls testified that she did not remember Dr. Wunsch having been in her room earlier that morning, although she thought she had experienced a dream in which he "was bawling me out."

X rays disclosed a "slight" or "minimal" compression fracture of the 11th vertebra in the thoracic region of the back. She also sustained soft tissue injury in the surrounding area of the back. Her family physician, Dr. Kuhs, was called in to treat her back injuries and prescribed bed rest in the hospital. Mrs. Puls remained in the hospital until discharged March 21, 1961.

The instant action was commenced June 15, 1962. It was tried to a court and jury in a trial which began June 22, 1966. The jury returned a special verdict whereby it was found that defendant was not negligent in caring for Mrs. Puls and that she was causally negligent with respect to her own safety. The verdict also fixed the amounts of damages sustained by each of the two plaintiffs.

Judgment was entered on the verdict November 11, 1966, dismissing the complaint with costs. Plaintiffs have appealed.

CURRIE, C. J.

While additional questions are raised by plaintiffs, we deem it only necessary to resolve these issues:

(1) Does the evidence establish that defendant hospital was causally negligent as a matter of law?

(2) Did the trial court commit prejudicial error in refusing to give the jury a requested res ipsa loquitur instruction?

(3) Did the trial court commit prejudicial error in not giving a requested instruction with respect to the duty of care which defendant owed to Mrs. Puls because of her physical and mental condition?

(4) Does the jury's verdict reflect passion and prejudice so as to be perverse?

(5) Should a new trial be ordered in the interest of justice?

Defendant's Negligence.

Plaintiffs contend that the jury's finding that defendant was not negligent is not supported by the credible evidence, and that such evidence requires a holding that defendant was causally negligent as a matter of law. In support of this contention, plaintiffs urge particularly the failure to notify Dr. Wunsch of Mrs. Puls' drugged condition until 3 a.m. of the day of the fall, and the failure after 7:30 a.m. to take any precautions to prevent her moving about or failing.

With respect to the failure to call Dr. Wunsch until 3 a. m., it is pointed out that Mrs. Pugh of the hospital staff first became aware that something was wrong with Mrs. Puls at 1:30 a.m. when she helped her to the bathroom. Plaintiffs assert that Dr. Wunsch should have been notified then so that he would have ordered the pumping of the stomach. Dr. Wunsch testified that if he had been notified at 1:30, he might have ordered the stomach pumping. After so stating he added, "I can't say more than that because it would depend upon other factors." Upon the testimony of Mrs. Pugh, Sister Bertrandine, and Sister Rebecca, we deem an issue for the jury was presented as to whether the hospital was negligent in failing to notify Dr. Wunsch of Mrs. Puls' drugged condition prior to 3 a.m. Furthermore, Dr. Wunsch was not positive that he would have ordered stomach pumping if he had been notified sooner.

This leaves for consideration the alleged failure of the hospital to take precautions for Mrs. Puls' safety between 7:30 a.m. and the time of the fall around 9 a.m. Plaintiffs contend that defendants failed to exercise due care during this period in these respects: (a) Not using bedrails on Mrs. Puls' bed; (b) not stationing someone in her room until she had completely emerged from her drugged condition; and (c) not checking her more often than was done.

Plaintiffs called as an expert witness a Miss Lepow, director of nursing service at Outagamie County Hospital. She testified that for the protection of a patient in Mrs. Puls' condition she would have used side rails on the bed. On the other hand Dr. Wunsch gave two reasons why he did not order side rails on the bed. One was that he thought Mrs. Puls would resent any physical restraint. The other was that he saw no necessity for it. Sister Rebecca testified that she hesitates to put up side rails, because psychiatric patients object strenuously and many times get very upset over it. She stated further that she never puts side rails up on a patient's bed unless ordered by the doctor. However, the evidence discloses that, after the accident, side rails were used on Mrs. Puls' bed although not ordered by a doctor.

After 7 a.m. on the morning of January 19, 1961, there were six or seven nurses and some assistants on duty in the psychiatric ward with 17 patients to attend. The evidence does not disclose whether the duties of these hospital personnel would have permitted the full-time stationing of one of them in Mrs. Puls' room. In the absence of evidence to the contrary, it is a permissible inference that one of them could have been so stationed for a period until Mrs. Puls' was able to be up and about. However, Dr. Wunsch after viewing Mrs. Puls at 7:30 did not order that this be done but merely directed, "Keep checking her." The evidence does not disclose how often she was checked thereafter up until the time of her fall. However, even if she had been checked every fifteen minutes, the fall could very well have occurred in between such checkings.

With respect to the issue of the degree of care the hospital owed Mrs. Puls from 7:30 a.m. until the time of fall, the opinions which Dr. Wunsch and Sister Rebecca formed from their contact with her at 7:30 are also material. Dr. Wunsch's opinion was that Mrs. Puls was no longer in danger and could look after herself in bed. Sister Rebecca thought Mrs. Puls was quite alert, although a little bit sleepy, and that her condition did not present any special problem. Opposed to these sanguine opinions of her condition was the hospital chart notation that at 7:30 a.m. Mrs. Puls could not be aroused for breakfast and a further one to the effect that at 10 a.m., which was after the fall, that her "speech remains very slurred."

We deem that the record clearly demonstrates that whether defendant exercised due care in caring for Mrs. Puls from 7:30 a.m. until her fall presented an issue of fact for the jury.

We conclude that there is no merit to plaintiffs' contention that the jury's finding of no negligence on the part of defendant should be set aside and defendant found to have been causally negligent as a matter of law.

Res Ipsa Loquitur.

Apart from any other reason which may have existed for the trial court refusing to give to the jury a res ipsa loquitur instruction, this refusal was proper because substantial proof of negligence had been adduced which would have rendered the giving of the res ipsa instruction superfluous. This proof consisted of the expert testimony of Miss Lepow previously recounted herein, together with the failure of defendant to have done some of the things plaintiffs urged were required of it in exercising due care. This is not the case of an unexplained injury.

We consider the instant issue is governed by Fehrman v. Smirl wherein it was stated:

"When proof of negligence is offered, the trial judge, in contemplating the instructions which he will give to the jury, must evaluate the testimony to determine if there has been such substantial proof of negligence as to render superfluous the giving of an instruction on res ipsa loquitur. Sometimes the question as to the adequacy of the proof of negligence will be a close one; it will be within the sound discretion of the trial judge to determine whether the giving of the instruction will be redundant."

The instant case is not one which we would classify as presenting a close question as to the adequacy of the proof of negligence.

Instruction With Respect to Degree of Care Owed by Defendant.

The trial court with respect to the duty owed by defendant to Mrs. Puls instructed the jury as follows:

"You are instructed that it was the duty of the defendant, St. Vincent Hospital, and its employees to exercise such reasonable care and attention for the safety of the plaintiff as her [Mrs. Puls] condition, both physical and mental, may have required. A hospital such as the defendant, St. Vincent Hospital, which undertakes to care for a patient is under a duty to exercise such reasonable care in looking after and protecting the patient as the patient's condition, both physical and mental, may require." (Emphasis supplied.)

Plaintiffs allege as prejudicial error the refusal of the trial court to give a requested instruction on the duty owed by defendant to Mrs. Puls that required a page and a half to print in the appendix to the plaintiffs' appellate brief. We quote three excerpts therefrom as follows:

"It is undisputed the defendant, St. Vincent Hospital, accepted the plaintiff, Mary Puls, as a patient in the psychiatric division of the hospital on November 18, 1960 and that the defendant undertook to give the plaintiff, Mary Puls, such care, attention and nursing as was required in view of her mentally and emotionally disturbed condition. . . .

"You are instructed that when Mrs. Puls was admitted to the psychiatric division of the hospital of the defendant, the defendant hospital was under the obligation to exercise such care and attention for her safety as her known physical and mental condition required, and this obligation continued throughout the period of hospitalization of Mrs. Puls. . . .

"You are further instructed the defendant hospital and its employees were at all times, during the care and treatment of nervous or mentally and emotionally disturbed patients, required to use such means to restrain and guard them from injury to themselves as would seem reasonably sufficient to an ordinarily prudent person under like circumstances and this requirement to use such care was owed the plaintiff, Mary Puls, as a patient in the psychiatric division of St. Vincent Hospital."

These quoted excerpts emphasize Mrs. Puls' "mentally and emotionally disturbed" condition, not as a result of the self-administered sleeping pills, but with respect to her condition generally throughout her stay as a patient in the hospital. It further suggests that, because she was being treated in the psychiatric division, there existed a special duty on the part of defendant to restrain and guard her. The undisputed evidence discloses that she was not psychotic and had no delusions. There is no evidence that her condition was such as to require any special watching or guarding. The fact that she was allowed privileges which permitted her to be away from the hospital unattended during the daytime would negate any such inference. There was no testimony, expert or otherwise, that the hospital practice of dispensing her nightly medication so that she could take it in her room was improper hospital practice with respect to a patient in her condition.

If there was any negligence on the part of defendant, it was not in how they treated and cared for Mrs. Puls as a psychiatric patient but consisted in what the hospital personnel did or failed to do after becoming aware of her drugged condition about 1:30 a.m. on the morning she fell. Therefore, the trial court properly refused to give the requested instruction.

Alleged Perversity of Verdict.

Plaintiffs point to the jury's awards of damages as proof of passion and prejudice amounting to perversity.

The jury awarded Mrs. Puls $2,500 for her personal injuries. Mr. Puls was awarded $1,000 for loss of his wife's services and society; $1,980.30 for medical, hospital, and drug expenses; and $700 for household help.

Testimony adduced by plaintiffs shows the following: during the five years from accident to trial, Mrs. Puls suffered pain and discomfort and was required to wear an uncomfortable orthopedic garment; she can no longer do heavy housework or participate in recreational activities with her husband; Mr. Puls had expended $2,461.30 for medical, hospital, and drug expenses related to his wife's back problems; Mr. Puls expended $2,592.49 for household expenses.

The medical testimony indicates that the minimal compression fracture of the 11th vertebra is of very little significance and that pain and discomfort caused by the fall of January 19, 1961, which Mrs. Puls sustained subsequent to her discharge from the hospital, was due to the soft tissue injury. Dr. Kuhs testified in behalf of plaintiff that in his opinion there was a chronic injury to the tissue. He further stated that there was a weakness in her back and some distortion of posture and a probability that this would be permanent. Dr. Freidman, an orthopedic specialist called by defendant, had examined Mrs. Puls on March 16, 1965. He testified that physical findings were "essentially nil" but that there were considerable subjective complaints.

Mrs. Puls, however, has sustained five additional accidents subsequent to January 19, 1961. In May, 1961, she drove an automobile through a stop sign and collided with another car. She bumped her head and felt the shock. In August, 1961, she slipped on some soap in a washroom of a train, fell, and strained her lower back. In December, 1962, she slipped and fell in the kitchen of her home. In September, 1963, she slipped in the bathroom of her home and fell straining the upper part of her back. In December, 1963, the auto she was driving was rear ended by another car, and she sustained a whiplash injury.

Dr. Kuhs testified that these subsequent injuries compounded the original injury and "The total of her back is the product of the initiating incident, plus some or all of the subsequent injuries."

Undoubtedly, the jury concluded that some of the pain and disability was attributable to the accidental injuries sustained subsequent to the fall in the hospital. This is apparent from the failure to award the full amount claimed for medical expenses and hiring household help. The testimony of Dr. Kuhs would support such a conclusion.

The trial judge in his memorandum decision on motions after verdict stated:

"I do not believe it necessary to discuss the damages awarded by the jury other than to say that there was a considerable difference of opinion among the physicians regarding the extent and duration of the plaintiff's injuries. In view of these differences, the damages awarded do not appear to be unfair."

If there is any credible evidence which under any reasonable view supports the jury finding as to damages, especially when the verdict has the approval of the trial court, this court will not disturb the finding. Even when it still appears that the award is low, this court will not interfere with the jury's finding, unless the award is so unreasonably low as to shock the judicial conscience. We do not consider the damages awarded here fall in such category, and, therefore, hold there was no perversity.

New Trial in the Interest of Justice.

This court will not order a new trial in the interest of justice under sec. 251.09, Stats., unless the court, viewing the case as a whole, is convinced that there has been a probable miscarriage of justice.

Mrs. Puls' fall around nine o'clock in the morning following the taking of an overdosage of doriden and sodium amytal before midnight of the preceding day was a highly unusual result. Dr. Wunsch testified he was unable to understand it from a medical standpoint, because the effect of doriden lasts three to six hours, and the effect of sodium amytal lasts four to eight hours at "the outside." The jury may very well have considered this testimony in deciding whether the hospital attendants were negligent in not watching Mrs. Puls more closely than they did after 7:30 a.m. It also is one of the factors which we have considered in passing on the issue of whether the jury's verdict constituted a miscarriage of justice.

We do not have a feeling that under all the circumstances justice probably miscarried, and, therefore, decline to exercise our discretion to order a new trial in the interest of justice.

By the Court. — Judgment affirmed.