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Lawskills.com Georgia Caselaw
MULL v. EMORY UNIVERSITY, INC.
41663.
PANNELL, Judge.
Action for damages. Fulton Superior Court. Before Judge Moore.
1. While the brief of appellant makes no specific reference to the general demurrer (demurrer No. 1) which was renewed or to the other renewed demurrers (Nos. 16, 17, 23, and 27), the law and argument presented in the brief of the appellant on the other demurrers specifically referred to, which argument contains references to the allegations in the paragraphs demurred to by the above demurrers, is so entwined and enmeshed with the principles and reasoning applicable to the general demurrer and the renewed demurrers that we cannot say that the appellant has abandoned his enumeration of error thereon.
2. The requirement that the enumeration of error "shall set out separately each error relied upon" (Sec. 14 of the Appellate Practice Act of 1965, as amended; Ga. L. 1965, pp. 18, 29; Ga. L. 1965, pp. 240, 243; Code Ann. 6-810) does not make necessary a separate numbering as to each of various numbered demurrers sustained, but an enumeration of error on the sustaining of such demurrers setting forth each demurrer by its paragraph number is a sufficient "separate enumeration."
3. While a hospital may not be liable for the alleged negligence of a physician employed by it where the alleged negligence related to a matter of professional judgment on the part of the physician in the treatment or diagnosis of an illness over which the employing hospital did not exercise and had no right to exercise control (Black v. Fischer, 30 Ga. App. 109 (117 SE 103); Tench v. Downey Hospital, 36 Ga. App. 20, 22 (135 SE 106)), yet, where such employee physician refers a patient to another employee (allegedly incompetent) for the administration of a diagnostic test, the referral of such patient to the other employee was the act of the hospital under the doctrine of respondeat superior.
Daniel, 37 Ga. App. 524, 528 (141 SE 77); Hughes v. Weaver, 39 Ga. App. 597 (148 SE 12); Radcliffe v. Maddox, 45 Ga. App. 676, 680 (165 SE 841). The physician must not only have the requisite care and skill, but must exercise these qualifications. Hinkle v. Smith, 12 Ga. App. 496 (77 SE 650); Grubb v. Elrod, 25 Ga. App. 108 (102 SE 908); McLendon v. Daniel, supra; Richards v. Harpe, 42 Ga. App. 123 (11) (155 SE 85); Chapman v. Radcliffe, 44 Ga. App. 649 (162 SE 651). The true rule is that the reasonable degree of care and skill prescribed in the Code is not such as is ordinarily employed by the profession in the locality or community. It is a question of fact for the jury to determine what is reasonable care and skill under the circumstances, and in so determining the jury may consider the degree of care and skill practiced by the profession generally in the locality or the community. In Akridge v. Noble, 114 Ga. 949 (41 SE 78), cited and relied on by counsel for defendant in error, it was not held that the care and skill required of a physician is that employed by the profession generally in the locality or community. See the comments of the Supreme Court on that case in Pace v. Cochran, 144 Ga. 261 (86 SE 934). See also Fincher v. Davis, 27 Ga. App. 494 (108 SE 905); McLendon v. Daniel, supra; Gramm v. Boener, 56 Ind. 497, 501; McCracken v. Smathers, 122 N. C. 799 (29 SE 354)." Kuttner v. Swanson, 59 Ga. App. 818, 819-820 (2 SE2d 230). It appears, therefore, that while the jury may consider the accepted medical practice in the local community in determining whether or not the failure to use or follow the alleged practices was an act of negligence, it is not necessary to so allege. Nothing to the contrary was ruled in Bryan v. Grace, 63 Ga. App. 373 (11 SE2d 241). The allegations there related to a matter of judgment rather than a procedure of diagnostic testing as here involved and the allegations in that case merely alleged that the "proper practice" was different from that used rather than that "proper and acceptable medical practice" required a different method, as is done in the present case.
5. The appellant invokes what is sometimes called the "informed consent rule" effective in other States. See Southern R. Co. v. Phillips, 136 Ga. 282 (1) (71 SE 414); Robertson v. Johnson, 104 Ga. App. 387, 392 (121 SE2d 829). Briefly stated, this rule is that a consent to a treatment or diagnostic test obtained without disclosure of the hazards or dangers involved, is no consent. Whether or not the "informed consent" rule is applicable in this State, such rule, if applicable, applies only to the duty to warn of the hazards of a correct and proper procedure of diagnosis or treatment, and has no relation to the failure to inform of the hazards of all improper procedure. The allegations of failure to so inform in the present case may, therefore, have been demurrable; however, the demurrers interposed here were defective. The paragraphs demurred to alleged the duty to warn of the hazards of the substance used as well as an additional duty. The demurrers were to the entire paragraphs on the grounds that "the duty" alleged was not a duty imposed by law upon the defendant or was a duty greater than that imposed by law on the defendant or the breach of said duty by the failure to warn. The demurrer itself being a critic must be free from criticism, and the failure to allege which duty was referred to by the demurrers prevented the demurrers from performing their proper office and the trial judge erred in sustaining them. However, demurrer number 36 to paragraph 65e, which alleges a failure to warn of the hazards of an improper injection, was properly sustained. Whether or not other demurrers to the same paragraph were properly sustained presents a moot question.
6. Special demurrers which do not specifically point out the weaknesses they seek to attack are defective, and the sustaining of such a demurrer is error. Morgan v. Crowley, 91 Ga. App. 58 (5) (85 SE2d 40). A special demurrer must distinctly and particularly specify wherein the defect lies. The party specially demurring "must lay, as it were, his finger on the very point otherwise the demurrer should be overruled. Scott v. Central of Ga. R. Co., 18 Ga. App. 159 (88 SE 995); Matthews v. American textile Co., 23 Ga. App. 675, 676 (3) (99 SE 305); Dunn v. Freeman, 24 Ga. App. 504, 505 (5) (101 SE 393); Lovett v. Arnall Merchandise Co., 182 Ga. 356 (185 SE 315); Peoples Loan Co. v. Allen, 199 Ga. 537, 557 (I) (34 SE2d 811). "A special demurrer which is itself vague, uncertain, and indefinite, and does not specifically point out wherein the petition is defective, will not be considered by the court." Central of Ga. R. Co. v. Hill, 21 Ga. App. 231 (94 SE 50).
7. The various allegations relating to the fact that defendant's servant was not properly trained to administer an injection, that the servant improperly administered the injection, that only a medical doctor or a registered nurse should have done so, and also relating to the lack of proper treatment after occurrence of symptoms following the injection, were not conclusions of the pleader when viewed in the light of allegations of fact in the entire petition, nor were the paragraphs alleging such facts conclusions of the pleader.
8. The petition sufficiently alleged a causal relation between the alleged injury received and the alleged breach of duties, the alleged incompetency of the defendant's servant because of the lack of training, as against the demurrers interposed on the ground of the lack of such causal relation.
9. The demurrers to the allegations of negligence relating to the breach of alleged duties, except as otherwise indicated, were improperly sustained by the trial judge.
10. An allegation "that after her marriage plaintiff found that due to the damage to and impairment of the circulatory system of her left arm, there is great danger attendant on her becoming pregnant; that should she become pregnant, there is substantial danger that her damaged and insufficient circulatory system will cause extensive complication of her pregnancy and that the pregnancy itself, which places a naturally increased burden upon the circulatory system of the female human body, will cause her to suffer the amputation of her left arm or to suffer from another severe attack or attacks of thrombophlebitis" is not demurrable as a conclusion of the pleader, or on the ground said allegation deals solely with the medical possibilities, or on the ground it is prejudicial and inflammatory.
11. Allegations as to probable adverse results from an alleged tortious injury or that there was a substantial medical possibility of such result, which probabilities and possibilities have caused the plaintiff mental pain and suffering are properly pleaded as such element of damage. See Atlanta Veterans Transportation, Inc. v. Cagle, 106 Ga. App. 551 (127 SE2d 702).
12. Paragraph 51 as amended sufficiently meets the grounds of demurrer number 24 and new demurrer number 7 by alleging of what the extensive medical treatment consisted.
13. Upon application of the above rulings and principles to the pleadings and the demurrers thereto sustained by the trial judge, it follows that he erred in sustaining demurrers numbered 1 (the general demurrer), number 3 to paragraph 10, number 4 to paragraph 12, number 5 to paragraph 12, number 6 to paragraph 15, number 7 to paragraph 15, number 8 to paragraph 16, number 9 to paragraph 17, number 10 to paragraph 18, number 11 to paragraph 20, number 12 to paragraph 21, number 14 to paragraph 23, number 15 to paragraph 25, number 16 to paragraph 26, number 17 to paragraph 27, number 18 to paragraph 28, number 19 to paragraph 29, number 20 to paragraph 31, number 21 to paragraph 32, number 22 to paragraph 33, number 23 to paragraph 36, number 24 to paragraph 51, number 25 to paragraph 58, number 26 to paragraph 63, number 27 to paragraph 65 (a), number 28 to paragraph 65 (b), number 29 to paragraph 65 (b), number 30 to paragraph 65 (c), number 33 to paragraph 65 (d), number 34 to paragraph 65 (d), number 36 to paragraph 65 (e), number 37 to paragraph 65 (f), number 38 to paragraph 65 (g), number 39 to paragraph 65 (i), number 40 to paragraph 65 (i), number 41 to paragraph 65 (j), number 42 to paragraph 65 (j), number 43 to paragraph 65 (k), number 44 to paragraph 65 (l), number 45 to paragraph 65 (m), new demurrer number 2 to paragraph 47 (a), new demurrer number 3 to paragraph 47 (a), new demurrer number 4 to paragraph 47 (a), new demurrer number 5 to paragraph 47 (b), new demurrer number 6 to paragraph 47 (b), new demurrer number 7 to paragraph 51, new demurrer number 8 to paragraph 65 (n), new demurrer number 9 to paragraph 65 (n), new demurrer number 10 to paragraph 65 (n), new demurrer number 11 to paragraph 65 (n).
Betty Lee Mull, plaintiff, brought a petition against Emory University, Inc., doing business as Crawford W. Long Memorial Hospital, on July 6, 1964. This petition containing approximately 65 paragraphs, was demurred to by the defendant on August 5, 1964, the demurrer containing 51 separate grounds of demurrer, including a general demurrer which was the demurrer numbered 1. On May 21, 1965, the trial judge sustained grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 24, 25, 26, 28, 29, 30, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43 and 44 of the demurrers. The other grounds of demurrer, including the general demurrer, were overruled and the plaintiff in the order was required to rewrite the petition "and esponge, therefrom, the allegations which are demurred to in the demurrers which are sustained" and was given 30 days in which to amend. The time for amendment was extended and within the extended time, and on July 6, 1965, the plaintiff amended the fifth paragraph of the petition by rewriting the same, although it was not specifically demurred to, and paragraph 6 of the petition was amended, although not demurred to; paragraph 8 of the petition was stricken pursuant to demurrer No. 2; paragraph 22 was rewritten to meet ground 13 of the demurrer moving to strike certain language therefrom; paragraph 47(a) and 47(b) were added; paragraph 51 was redrafted to meet grounds of demurrer No. 24; paragraph 54 was amended; paragraph 65 was amended by adding subparagraphs (n) and (o). On July 13, 1965, and filed July 14, 1965, the trial judge entered the following order: "It appearing that, under order of this Court dated May 21, 1965, the time for plaintiff to have amended her petition has now expired; and it further appearing that plaintiff has failed to amend and rewrite her petition after an extension of time through July 6, 1965; and it further appearing that plaintiff filed an amendment on July 6, 1965, amending Paragraphs 8, 22, and 51 of her petition which were demurred to by defendant being Paragraphs 2, 13, and 24 of defendant's demurrers which were sustained; and it further appearing that plaintiff has failed to rewrite her petition and expunge therefrom the allegations of Paragraphs numbered 10, 12, 15, 16, 17, 18, 20, 21, 23, 25, 28, 29, 31, 32, 33, 58, 63, 65(b), 65(c), 65(d), 65(e), 65(g), 65(i), 65(j), 65(k), 65(l), of her petition all having been demurred to by defendant's demurrers being numbers 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 18, 19, 20, 21, 22, 25, 26, 28, 29, 30, 33, 34, 35, 36, 38, 39, 40, 41, 42, 43, 44, which were sustained by order dated May 21, 1965, with the direction that plaintiff rewrite her petition and expunge therefrom the aforesaid allegations to which defendant's demurrers were sustained; and it further appearing that plaintiff has stated that she would not rewrite her petition and expunge therefrom the aforesaid allegations;
"Now, therefore, it is hereby ordered and adjudged that each and every one of the aforesaid allegations of plaintiff's petition be hereby stricken from plaintiff's petition and that, before this case be set down for trial, the petition be rewritten as required by the Court's order of May 21, 1965."
The defendant, by pleading dated July 13, 1965, and filed July 14, 1965, renewed his demurrers Nos. 1, 16, 17, 23, 27, 37 and 45 and filed new demurrers Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 to new paragraphs 47(a) and 47(b), 51 and 65 (n). On August 31, 1965, the trial judge entered the following order.
"It appearing that plaintiff having filed an amendment to her original petition, and demurrers having been filed to the original petition as amended;
"And it further appearing that the plaintiff has not rewritten her petition as provided in the order dated July 13, 1965, and the original demurrers having been renewed it is hereby ordered and adjudged that said demurrers are sustained and the case is ordered dismissed. Aug. 31, 1965."
In order that the rulings here made can be more readily understood, the various paragraphs of the petition and the demurrers sustained to them are set forth below:
Par. 5 (new). "That in consideration of plaintiff's training and education as a student nurse, plaintiff's parents agreed to pay and did pay to defendant the sum of $375 as plaintiff's tuition; that in further consideration of such training and education, plaintiff agreed to perform and did perform valuable services, work and labor for defendant in said hospital by carrying on nursing duties and performing such tasks as the defendant's agents, servants and employees in charge of said hospital directed her to do; that in consideration of said tuition and services, defendant agreed to furnish plaintiff training in a three (3) year nurse's training educational program and did agree to furnish plaintiff with medical care and services during her period of enrollment as a student nurse."
Par. 6. "That in November or December of 1961, the exact date being unknown to plaintiff but well-known to defendant and while plaintiff was enrolled as a student nurse in the defendant's Crawford W. Long Memorial Hospital, she became ill and sick at her stomach and experienced pain in her abdomen; that she thereupon consulted one of the resident physicians in the employ of the defendant, whose name is unknown to plaintiff but well-known to the defendant, concerning said pain in her abdomen."
Par. 7. "That the aforesaid resident physician advised plaintiff that it was his opinion that she might be suffering from a disease of her liver and he ordered that the plaintiff be administered a certain diagnostic test known as a 'BSP' test and that said test be conducted and administered by and through the medical facilities of the defendant's Crawford W. Long Memorial Hospital."
Par. 9. "That said 'BSP' test was and is a test for the purpose of determining and measuring the functional ability of the liver of the human body to eliminate waste substance from the blood."
Par. 10. "That said 'BSP' test as administered and performed in the course of proper and accepted medical practice consists of injection into the bloodstream of the patient of a quantity of a liquid chemical compound bearing the trade name of Bromosulphalein and the chemical name of Sulfobromophthalein Sodium; that said chemical is a dye and is usually and customarily injected into a patient's blood stream through a vein in the antecubital fossa of the patient; that said compound, when it reaches the liver, is removed from the bloodstream of the patient by the liver in the course of its natural functioning and is excreted into the bile; that one-half hour after the injection thereof a sample of the patient's blood is taken and examined to determine the quantity of said chemical still present within the blood, thus furnishing a means of measuring and determining the efficiency of the liver in removing said chemical."
Dem. No. 3. "Defendant demurs to Par. 10 of plaintiff's petition upon the ground that the same constitutes a conclusion of the pleader unsupported by any well-plead facts in plaintiff's petition, insofar as said paragraph attempts to set out what the course of proper and accepted medical practice is concerning the administration of the 'BSP' diagnostic test and as such is incompetent, irrelevant and immaterial, and defendant moves to strike the same."
Par. 11. "That said chemical is harmless and has no effect on the human body provided that it is injected entirely within a vein of the body and into the bloodstream."
Par. 12. "That if said dye compound is injected into muscle tissue of the human body, it is extremely harmful, dangerous and injurious to the body in that it causes Cellulitis, that is, destruction and inflammation of the cells and tissues of the muscles and causes Thrombophlebitis, that is, destruction, injury and damage to the veins, blood vessels and capillaries of the body and causes severe and permanent damage to the circulatory system; that said dye compound causes the muscles, and other soft tissues of the body, to become inflamed, severely painful, swollen and permanently damaged."
Dem. No. 4. "Defendant demurs to Par. 12 of plaintiff's petition in its entirety upon the ground that it constitutes a conclusion of the pleader unsubstantiated by alleged facts and as such is prejudicial in its nature and calculated to inflame the court and the jury against the defendant without any allegations of fact to show any causal connection between the condition alleged in Par. 12 and the alleged injuries and damage to the plaintiff, and defendant moves to strike the said paragraph."
Dem. No. 5. "Defendant demurs to Par. 12 of plaintiff's petition in its entirety upon the ground that same constitutes a medical conclusion unsupported by any facts well-plead anywhere in plaintiff's petition and upon the further ground that same is an improper allegation and is prejudicial in that there are no allegations of fact to show that the allegations set forth in said paragraph constitute the proximate or contributing cause to any of the injuries alleged to have been sustained by the plaintiff, and defendant moves to strike said paragraph in its entirety."
Par. 13. "That in the exercise of the standards of proper and accepted medical practice, said dye compound is injected into the veins of the body by a syringe having a hollow needle."
Par. 14. "That in the exercise of the standards of proper and accepted medical practice, the needle of such syringe used in injecting said dye must be completely and carefully inserted into the vein into which said dye is being injected so that the opening of the point of said needle is entirely within the interior diameter of the vein; that said point of the needle must be so positioned as to allow none of the dye to escape into the surrounding tissues for the reasons set forth in Paragraph 12 above."
Par. 15. "That because of the dangerous and hazardous effects of said dye compound if injected or allowed to escape into the muscle tissue of the human body, it is necessary, in the exercise of the standards of proper and accepted medical practice, that great care, vigilance and precaution be taken in the process of injection of same to see that no part of the dye compound is injected other than into the vein selected."
Par. 16. "That in the exercise of the standards of proper and accepted medical practice, it is necessary, during the time said dye compound is being thus injected into the vein, to repeatedly ascertain that the needle point used to inject same remains within the vein."
Dem. No. 6. "Defendant demurs to the allegations of Par. 15 which reads as follows: 'the dangerous and hazardous effects of said dye compound' upon the ground that the same is a conclusion of the pleader unsubstantiated by well-pleaded facts and as such is prejudicial to the defendant and for the further reason that the same is superfluous in that there are no allegations of fact showing any causal connection between the allegations set out in said paragraph and any alleged injuries or damages to the plaintiff, and defendant moves to strike the same."
Dem. No. 7. "Defendant demurs to so much of Par. 15 as alleges 'the dangerous and hazardous effects of said dye compound' upon the ground that said allegation constitutes a conclusion of the pleader designed to inflame the jury and prejudice the defendant and as such is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action, and defendant moves to strike the same."
Par. 16. "That in the exercise of the standards of proper and accepted medical practice, it is necessary, during the time said dye compound is being thus injected into the vein, to repeatedly ascertain that the needle point used to inject same remains within the vein."
Dem. No. 8. "Defendant demurs to Par. 16 of plaintiff's petition upon the ground that the same is an improper allegation and is superfluous in that there are no allegations or facts showing any causal connection between the allegations set out in said paragraph and any alleged injuries or damage to the plaintiff, and defendant moves to strike the same."
Par. 17. "That in the exercise of the standards of proper and accepted medical practice, it is necessary to repeatedly utilize said needle and syringe used for the injection to ascertain whether or not the needle point remains within the vein by aspirating small but visible quantities of blood from the vein into the syringe used; that the aspiration of said small quantities of blood is performed by drawing back on the plunger of the syringe used."
Dem. No. 9. "Defendant demurs to the allegations of Par. 17 of plaintiff's petition in its entirety upon the ground that the same is incompetent, irrelevant and immaterial, and not germane to the plaintiff's alleged cause of action, there being no facts set forth in plaintiff's petition showing any causal connection between the alleged procedure in Par. 17 and the alleged injuries and damage to the plaintiff, and defendant moves to strike the same."
Par. 18. "That in the exercise of the standards of proper and accepted medical practice, it is necessary that said dye compound be injected into the vein selected in an extremely slow manner."
Dem. No. 10. "Defendant demurs to the allegations of Par. 18 of plaintiff's petition in its entirety upon the ground that the same is incompetent, irrelevant and immaterial, and not germane to the plaintiff's alleged cause of action, there being no facts set forth in plaintiff's petition showing any causal connection between the alleged procedure in Par. 17 and the alleged injuries and damage to the plaintiff, and defendant moves to strike the same."
Par. 19. "That if said dye compound is properly injected solely within the vein selected as aforesaid and not into the surrounding tissue, the injection thereof is painless to the patient except for the initial mild pain of insertion of the needle."
Par. 20. "That if during the process of injection of said dye compound the needle point of the syringe is placed outside of the vein and any quantity of the dye compound is injected outside of the vein, the fact that the injection is being made outside of the vein is immediately recognizable by the fact that the tissues of the body in the immediate site of insertion of the needle begin to visibly swell while the needle remains injected and immediately after any minute quantity of said dye compound comes in contact with the tissues and by the fact that the patient immediately experiences stinging pain at the site of insertion of the needle."
Dem. No. 11. "Defendant demurs to the allegations of Par. 20 and moves to strike and physically expunge said paragraph of plaintiff's petition upon the ground that the same is incompetent, irrelevant and immaterial and not germane to the plaintiff's alleged cause of action, there being no facts set forth in plaintiff's petition showing any causal connection between the alleged procedure in Par. 20 and the alleged injuries and damage to the plaintiff."
Par. 21. "That in the exercise of the standards of proper and accepted medical practice, if the patient into whom is being injected said dye compound experiences said immediate stinging pain or if said immediate local swelling occurs or if upon attempted aspiration the person performing said injection fails to withdraw blood from the vein selected, the needle point should and must be immediately and entirely withdrawn from the body and a second insertion made into the vein or into another vein."
Dem. No. 12. "Defendant demurs to the allegations of Par. 21 and moves to strike and physically expunge said paragraph of plaintiff's petition upon the ground that the same is incompetent, irrelevant and immaterial and not germane to the plaintiff's alleged cause of action, there being no facts set forth in plaintiff's petition showing any causal connection between the alleged procedure in Par. 21 and the alleged injuries and damage to the plaintiff."
Par. 22 (new). "That at all times pertinent hereto defendant had in its employ at said hospital one Felicitas Camacho Soriano, a female agent, servant and paid employee of defendant who performed the duties of a laboratory technician in the employ of defendant."
Dem. No. 14. "Defendant demurs to the allegations of Par. 23 of plaintiff's petition and moves to strike and physically expunge said paragraph of plaintiff's petition upon the ground that the same is incompetent, irrelevant and immaterial and not germane to the plaintiff's alleged cause of action, there being no facts set forth in plaintiff's petition showing any causal connection between said allegation and the alleged injuries and damage to the plaintiff."
Par. 24. "That said laboratory technician at all times pertinent hereto and in 'doing all acts herein set forth was acting as the agent and servant of the defendant and in the course and scope of her employment and in the prosecution and furtherance of the defendant's business."
Par. 25. "That in the exercise of the standards of proper and accepted medical practice, the injection of Bromosulphalein solution should be performed only by a medical doctor or a registered nurse specially trained and skilled in the art of giving intravenous injections."
Dem. No. 15. "Defendant objects to Par. 25 of plaintiff's petition on the ground that the same constitutes a conclusion of the pleader in that it does not set forth what special training and skill is needed in the art of performing the alleged diagnostic test and as such said allegation is vague, indefinite and uncertain, and defendant moves to strike the same."
Par. 26. "That said laboratory technician was at no time pertinent hereto a registered nurse nor was said laboratory technician at any time pertinent hereto sufficiently trained or skilled in the art of giving intravenous injections."
Dem. No. 16 (renewed). "Defendant demurs to the allegations of Par. 26 of plaintiff's petition on the ground that the same constitutes a conclusion of the pleader in that it does not set forth how or in what manner said laboratory technician was insufficiently trained and skilled in the art of administering the alleged diagnostic test and defendant moves to strike the same."
Dem. No. 17 (renewed). "Defendant demurs to the allegations of Par. 27 of plaintiff's petition on the ground that the same constitutes a conclusion of the pleader in that it does not set forth how or in what manner said laboratory technician was insufficiently trained and skilled in the art of administering the alleged diagnostic test nor has plaintiff alleged how or in what manner said laboratory technician was incompetent and unfit to perform said diagnostic test, and defendant moves to strike the same."
Par. 28. "That at the time the injection hereinafter described was performed, plaintiff had had only one year of training as a student nurse and she was not aware of the dangerous and hazardous propensities of said Bromosulphalein solution or of the absolute need that said compound be injected only by a medical doctor or a specially trained registered nurse."
Dem. No. 18. "Defendant demurs to Par. 28 of plaintiff's petition in its entirety upon the ground that the same is prejudicial and inflammatory and for the further reason that the same is superfluous in that there are no allegations of fact showing any causal connection between the alleged injuries or damage to the plaintiff and the fact that the plaintiff had only one year of training as a student nurse and defendant moves to strike the same in its entirety."
Par. 29. "That at no time did the defendant in any way give previous warning or advice to the plaintiff of the dangerous and hazardous propensities of said dye compound nor did the defendant warn the plaintiff of the need that said substance be injected only by a physician or a specially trained registered nurse."
Dem. No. 19. "Defendant demurs to Par. 29 of plaintiff's petition upon the ground that the same is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action, in that it seeks to impose a duty upon defendant not required by law and as such is designed to be prejudicial, and defendant moves to strike the same."
Par. 31. "That the plaintiff did agree and consent that said dye compound could be injected into her body without knowledge or warning of the dangerous and hazardous qualities of said substance and without knowledge of the need that said substance be injected only by a physician or a specially trained registered nurse."
Dem. No. 20. "Defendant demurs to the portion of Par. 31 of plaintiff's petition that alleges, 'without knowledge or warning of the dangerous and hazardous qualities of said substance' upon the ground that the same constitutes a conclusion of the pleader in that there are no facts alleging what the dangerous and hazardous qualities of said substance used contained and as such said allegation is superfluous and designed to be prejudicial, and defendant moves to strike the same."
Par. 32. "That plaintiff would not have consented to said injection had she been advised of the hazards and dangers thereof and had she known of the lack of training and incompetency of said laboratory technician; that plaintiff would not have consented had she known of the need that said substance be injected only by a physician or specially trained registered nurse."
Dem. No. 21. "Defendant objects to Par. 32 of plaintiff's petition upon the ground that said allegation is a conclusion of the pleader in that plaintiff has failed to allege anywhere in her petition what hazards and dangers existed in the administration of said diagnostic test nor has plaintiff alleged anywhere in her petition how or in what manner said laboratory technician lacked the proper training and skill or how or in what manner said laboratory technician was incompetent to administer said diagnostic test, and defendant moves to strike the same."
Par. No. 33. "That by virtue of the facts set forth in Par. 32 above, plaintiff's consent to said injection was not based on full and adequate knowledge of the hazards and risks attendant upon said injection."
Par. No. 34. "That said laboratory technician did not insert the point of the needle of said syringe into the vein of the plaintiff's arm, but rather she did insert the point thereof into the surrounding soft tissue."
Par. No. 35. "That said laboratory technician did not inject said dye compound into the vein in the antecubital fossa of the plaintiff's left arm but did instead inject said dye compound and all of same into the soft tissue surrounding said vein."
Par. No. 36. "That said laboratory technician did not inject said dye compound in a slow and cautious manner, but instead she did perform said injection in a rapid and hasty manner and in a clumsy, uncoordinated and physically inept manner."
Dem. No. 23 (renewed). "Defendant objects to Par. 36 of plaintiff's petition upon the ground that said allegation is a conclusion of the pleader in that plaintiff has failed to allege how or in what manner said laboratory technician was physically inept to administer said injection, and defendant moves to strike the same."
Par. 37. "That during the time said laboratory technician was injecting said dye compound and while the needle of the syringe was inserted into the flesh of plaintiff's arm, plaintiff began to feel a stinging pain in the portion of her arm where the needle was inserted."
Par. 38. "That plaintiff did, immediately following the commencement of the pain described in Paragraph 37 above and while said needle was still inserted into her arm and while said laboratory technician was still in the act and process of injecting said dye substance, advise the said laboratory technician of the fact of said stinging pain."
Par. 39. "That during the time said laboratory technician was injecting said dye compound and while the needle of the syringe was inserted into the flesh of the plaintiff's arm, local swelling appeared in the immediate vicinity of the point of insertion of said needle in the tissue surrounding the point of insertion of said needle."
Par. 41. "That in the exercise and application of the standards of proper and accepted medical practice, the said laboratory technician should have immediately recognized that the injection of said dye compound was being made into the soft tissues by reason of said immediate local swelling and pain sustained by the plaintiff during the process of said injection."
Par. 42. "That in the exercise and application of the standards of proper and accepted medical practice, the said laboratory technician should have immediately ceased said injection and withdrawn said needle upon recognition of the facts described in Paragraphs 37, 38 and 39 above."
Par. 43. "That during the course of said injection, the said laboratory technician did not perform repeated aspiration of blood to determine whether or not the point of the needle was properly situated within the vein, but injected and continued to inject said dye compound and all of same without making such tests and without knowing if the point of the needle was in the vein or in the surrounding tissue."
Par. 44. "That said laboratory technician did not perform said injection under the supervision of a physician or of any person qualified to administer and perform said injection."
Par. 45. "That the defendant did have in its employ and present in said hospital various physicians and specially trained persons qualified and capable of properly giving said injection adequately."
Par. 46. "That the defendant did not furnish to plaintiff the services of any such physician or specially trained person to administer said injection."
Par. 47. "That immediately after all of said substance was injected into the soft tissue of plaintiff's arm, her arm began to greatly swell, to turn red and to become unbearably painful and tender."
47(a) (added by amendment). "That in the exercise of the standards of proper and generally accepted medical practice in the event of misinjection of said BSP solution into the muscle tissue of the patient's arm, rather than into the vein, it is necessary to render immediate treatment to the patient consisting of elevation of the arm, application of an ice pack for one (1) hour followed by application of moist heat, and the subcutaneous injection of a 1% solution of aqueous procaine hydrochloride."
New dem. No. 2. "Defendant demurs to Par. 47(a) of plaintiff's amended petition upon the ground that the same constitutes a conclusion of the pleader unsupported by any well-pleaded facts in plaintiff's petition insofar as said paragraph purports to set out what the course of proper and accepted medical standards and practice are concerning the administration of the injection of 'BSP' solution, and defendant moves to strike the same."
New dem. No. 3. "Defendant demurs to Par. 47(a) of plaintiff's amended petition in its entirety upon the ground that the said allegation is an improper allegation and is superfluous in that there are no allegations of fact showing any causal connection between the allegations set forth therein and plaintiff's alleged injury and on the further ground that said allegation is incompetent, irrelevant and immaterial in that it purports to set forth what the proper and accepted medical standards and practices are with regard to the administration of BSP solution and as such is not germane to plaintiff's alleged cause of action, and defendant moves to strike the same."
New dem. No. 4. "Defendant demurs to the allegation of Par. 47(a) of plaintiff's amended petition on the grounds that said allegation constitutes an illegal conclusion by plaintiff that there was a misinjection, said allegation being completely unsupported by any well-plead facts and as such is improper and prejudicial, and defendant moves to strike the same."
Par. 47(b) (added by amendment.) "That defendant did fail to give plaintiff said immediate medical treatment as set forth in Par. 47(a) above, but instead allowed plaintiff to spend two days following the misinjection of said BSP solution without medical attention whatsoever during which time plaintiff endured severe pain."
New dem. No. 5. "Defendant demurs to the allegations of Par. 47(b) of plaintiff's amended petition on the grounds that said allegation is based on an erroneous conclusion and assumption by plaintiff that there was a misinjection of the BSP solution as alleged in Par. 47(a) and said allegation is unsubstantiated by any well-pleaded facts anywhere in plaintiff's petition, and defendant moves to strike the same."
New dem. No. 6. "Defendant demurs to Par. 47(b) of plaintiff's amended petition on the grounds that said allegation is completely incompetent, irrelevant and immaterial to plaintiff's alleged cause of action and as such is designed to prejudice and inflame the minds of the court and jury, and defendant moves to strike the same."
Par. No. 48. "That the injection of said Bromosulphalein solution into the soft tissues of plaintiff's arm and did cause destruction of the cells composing the muscles, nerves, veins, capillaries and blood vessels of the plaintiff's left arm and did cause plaintiff's arm to become severely and permanently afflicted with Thrombophlebitis."
Par. No. 49. "That said conditions of the plaintiff's left arm set forth in Paragraph 48 above have rendered her unable to move her arm without severe and excruciating pain."
Par. No. 50. "That said condition of plaintiff's arm rendered her totally disabled and rendered her unable to complete her nurses training; that said condition of her arm has disabled her to the extent she has been unable to carry on any gainful employment and has destroyed her capacity to labor."
Par. 51 (new). "That as a result of said injured and diseased condition of her arm, plaintiff has been forced to undergo and secure extensive medical treatment of said thrombophlebitis from the following physicians: [Names of 25 physicians]. That said medical treatment consisted of the treatment of said injured and diseased condition of plaintiff's arm and circulatory system, including anti-coagulant therapy, physical therapy and the administration of drugs and medicines."
New dem. No. 7 failed to allege "what extensive medical treatment.'
Par. 52. "That as a result of said injured and diseased condition of her arm, plaintiff has been forced to undergo extensive periods of confinement in hospitals."
Par. 53. "That as a result of said injured and diseased condition of her arm, plaintiff cannot allow her arm to remain hanging down at her side in its normal position for more than five (5) minutes at a time without her arm becoming red, swollen and unbearably painful."
Par. 54. "That as a result of said injection of said dye compound, the circulatory system of plaintiff's left arm is permanently damaged and she suffers from repeated attacks of Thrombophlebitis and severe and unbearable pain. That plaintiff's left arm is permanently discolored and mottled in appearance.
Par. 55. "That during said periods of hospitalization, plaintiff has been compelled to have her arm immobilized for extended periods of time in the course of medical treatment thereof."
Par. 56. "That as a result of said extended periods of immobilization of her arm, the muscles of her shoulder, upper arm, forearm and hand have permanently atrophied and lost their strength and elasticity; that she has partially and permanently lost the normal motion of her shoulder, elbow, wrist, hand and fingers."
Par. 57. "That said injury and diseased condition of the plaintiff's arm have caused her to become depressed, nervous, morose and unhappy and to constantly worry over the condition of her arm."
Par. 58. "That because of said injured and diseased condition of the plaintiff's arm, there exists substantial medical possibility that her left arm will be required to be amputated at a future date and plaintiff has been caused great worry and mental anguish thereby."
Dem. 25. "Defendant demurs to Par. 58 of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant, and immaterial and not germane to plaintiff's alleged cause of action in that it seeks to allege a medical possibility rather than a fact, and as such is designed to be prejudicial and inflame the court and jury without having any material relevance to the plaintiff's alleged cause of action, and defendant moves to strike the same."
Par. 59. "That prior to said injection of said dye compound, plaintiff was eighteen (18) years of age and had a life expectancy of 43.53 years according to the American Experience Table of Mortality."
Par. 60. "That prior to said injection of said dye compound, plaintiff was in good health and was a normal young woman of an attractive appearance.
Par. 61. "That said atrophy of the muscles of her left arm and reduction of mobility of the joints of her arm have caused her left arm to shrink and become smaller than her right arm; that said cosmetic damage to her arm has caused plaintiff great humiliation, embarrassment and mental anguish."
Par. 62. "That on June 23, 1963, during a temporary cessation of the severity of her attacks of Thrombophlebitis, plaintiff married her present spouse, John W. Mull."
Par. 63. "That after her marriage plaintiff found that due to the damage to and impairment of the circulatory system of her left arm, there is great danger attendant on her becoming pregnant; that should she become pregnant, there is substantial danger that her damaged and insufficient circulatory system will cause extensive complication of her pregnancy and that the pregnancy itself, which places a naturally increased burden upon the circulatory system of the female human body, will cause her to suffer the amputation of her left arm or to suffer from another severe attack or attacks of Thrombophlebitis."
Par. 65. "That all of said injury and damage to plaintiff was proximately caused by the following acts of negligence on the part of the defendant: (a) In that defendant was negligent by and through the acts of its agent and servant, the said laboratory technician as herein set forth."
Dem. 27 (renewed). "Defendant demurs to Par. 65, subparagraph (a) of plaintiff's petition upon the ground that the same is a conclusion of the pleader, unsubstantiated by any allegation of fact, and on the further ground that said allegation is not a proper specification of negligence in that it fails to specify any act of negligence, and defendant moves to strike the same."
Par. 65(b) "In that defendant failed to use reasonable and ordinary care in that it failed to furnish the plaintiff with a medical doctor or qualified registered nurse to perform said injection";
Dem. 28. "Defendant demurs to Par. 65(b) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action in that there are no allegations of fact to show any causal connection between the alleged failure to furnish the plaintiff with a doctor or a nurse and the alleged injuries and damage to the plaintiff."
Dem. 29. "Defendant demurs to Par. 65(b) upon the ground that said allegation is a conclusion of the pleader not supported by any alleged fact, no facts appearing which would impose any such alleged duty upon defendant by law, and defendant moves to strike the same."
Par. 65 (c). "In that defendant failed to use reasonable and ordinary care in that it failed to provide the plaintiff with any person qualified for the medical task of performing an intravenous injection of Bromosulphalein solution, but instead did furnish the plaintiff with an unskilled, inadequately trained and inept person who was incompetent and unfit to perform said medical task";
Dem. No. 30. "Defendant demurs to Par. 65(c) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action in that there are no allegations of fact to show any causal connection between the alleged failure to furnish the plaintiff with a doctor or a nurse and the alleged injuries and damage to the plaintiff."
Dem. 31. "Defendant demurs to Par. 65(c) of plaintiff's petition upon the ground that said allegation is a conclusion of the pleader not supported by any alleged fact, no facts appearing which would impose any such alleged duty upon defendant by law, and defendant moves to strike the same."
Dem. 32. "Defendant demurs to Par. 65 (c) of plaintiff's petition which reads as follows: 'but instead did furnish the plaintiff with an unskilled, inadequately trained and inept person who was incompetent and unfit to perform said medical task'; upon the grounds that said allegation is a conclusion of the pleader unsubstantiated by any allegation of fact, and defendant moves to strike the same."
Par. 65(d) "In that defendant failed to warn or inform the plaintiff in any manner that said laboratory technician was unskilled, insufficiently trained and incapable of properly performing said injection";
Dem. No. 33. "Defendant demurs to Par. 65 (d) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action in that there are no allegations of fact to show any causal connection between said allegation and the alleged injuries and damages to the plaintiff."
Dem. No. 34. "Defendant demurs to Par. 65 (d) of plaintiff's petition upon the ground that said allegation is a conclusion of the pleader not supported by any alleged facts, no facts appearing which would impose any such alleged duty upon defendant by law, and defendant moves to strike the same."
Par. 65 (e). "In that defendant did fail to warn or inform the plaintiff that said Bromosulphalein solution was dangerous and hazardous when improperly injected, and did thereby induce her consent to said injection without giving to her reasonable and necessary information as to the risks and hazards involved";
Dem. No. 35. "Defendant demurs to Par. 65 (e) of plaintiff's petition upon the ground that the same constitutes a conclusion of the pleader unsubstantiated by any allegation of fact, and defendant moves to strike the same."
Dem. No. 36. "Defendant demurs to Par. 65, subparagraph (e) of plaintiff's petition upon the ground that said allegation is a conclusion of the pleader not supported by any alleged facts, no facts appearing which would impose any such alleged duty by law upon it, and defendant moves to strike the same."
Par. 65 (f). "In that said laboratory technician did fail to use ordinary care in that she did inject said Bromosulphalein solution into the tissue of the plaintiff's arm rather than into the vein and bloodstream of the plaintiff's body";
Dem. No. 37 (renewed). "Defendant demurs to Par. 65(f) of plaintiff's petition upon the ground that the same constitutes a conclusion of the pleader unsubstantiated by any well-pleaded facts showing how or in what manner said laboratory technician failed to use ordinary care and defendant moves to strike the same."
Par. 65 (g). "In that said laboratory technician did fail to use ordinary care to ascertain whether the point of the needle used in injecting said Bromosulphalein solution was in the vein of plaintiff's arm or in the tissue thereof, by repeated aspiration of blood";
Dem. No. 38. "Defendant demurs to Par. 65 (g) of plaintiff's petition upon the ground that said paragraph constitutes a conclusion of the pleader unsubstantiated by any well-pleaded facts, and defendant moves to strike the same."
Par. 65 (i). "In that said laboratory technician did fail to inform and advise the plaintiff of the dangers and hazards attendant upon the injection of said chemical compound into the human body as aforesaid, and did fail to inform and advise the plaintiff of her lack of proper skill and training, thus holding herself out to the plaintiff as being competent and skilled in said treatment, whereas in fact she was not; that said failure to advise and warn the plaintiff caused plaintiff to not have reasonable and necessary information as to the dangers and hazards involved";
Dem. No. 39. "Defendant demurs to Par. 65 (i) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and unsubstantiated by any allegation of fact in that said allegation purports to impose upon the defendant a duty greater than that placed upon it by law, and defendant moves to strike the same."
Dem. No. 40. "Defendant demurs to Par. 65 (i) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action in that there are no allegations of fact showing any causal connection between the allegations made in said paragraph and the alleged injuries and damage to the plaintiff, and this defendant moves to strike the same."
Par. 65 (j). "In that said laboratory technician failed to use ordinary care in that she failed to call in and request of the defendant a qualified medical doctor or nurse to perform said injection, while knowing of her own inability to perform same";
Dem. No. 41. "Defendant demurs to Paragraph 65 (j) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, unsubstantiated by any allegation of fact in that said allegation purports to impose upon the defendant a duty greater than that placed upon it by law, and defendant moves to strike the same."
Dem. No. 42. "Defendant demurs to Paragraph 65 (j) of plaintiff's petition upon the ground that said allegation is incompetent, irrelevant and immaterial, and not germane to plaintiff's alleged cause of action in that there are no allegations of fact showing any causal connection between the allegation made in said paragraph and the alleged injuries and damage to the plaintiff, and this defendant moves to strike the same."
Par. 65 (k). "In that said laboratory technician did perform said injection without the presence of any physician or qualified registered nurse"
Dem. No. 43. "Defendant demurs to Par. 65 (k) of plaintiff's petition upon the ground that said allegation is a conclusion of the plaintiff not supported by any alleged fact, no facts appearing which would impose any such duty upon defendant in excess of that imposed upon him by law, and defendant moves to strike the same."
Par. 65 (l). "In that said laboratory technician did disregard the facts that plaintiff experienced immediate local pain during the injection of said dye compound and that a visible swelling occurred in the tissue surrounding the point of said needle during the process of injection";
Dem. No. 44. "Defendant demurs to Par. 65 (l) of plaintiff's petition upon the ground that same is prejudicial and inflammatory, there being no allegation of facts showing any causal connection between any alleged negligence on behalf of defendant's laboratory technician and the alleged pain and swelling experienced by the plaintiff, and defendant moves to strike the same."
Par. 65 (m). "In that said laboratory technician continued to inject said dye compound into the plaintiff's arm despite the presence of said immediate local swelling and immediate stinging pain in the area where said needle was inserted."
Dem. No. 45 (renewed). "Defendant demurs to Par. 65 (m) of plaintiff's petition upon the ground that the same is prejudicial and inflammatory, there being no allegation of fact to show any causal connection between any alleged negligence on behalf of defendant's laboratory technician and the alleged pain and swelling experienced by the plaintiff, and defendant moves to strike the same."
Par. 65 (n). "In that the defendant failed to provide, render and furnish plaintiff with proper treatment immediately following the misinjection of the said BSP solution in that defendant failed to elevate the plaintiff's arm, failed to apply an ice-pack thereto, failed to apply moist heat thereto, and failed to provide plaintiff with an injection of procaine hydrochloride as aforesaid."
New dem. No. 8. "Defendant demurs to the allegations of Par. 65 (n) of plaintiff's amended petition on the grounds that said allegation is a conclusion of the pleader unsupported by any well-pleaded facts, no facts appearing which would impose any such alleged duty upon defendant by law, and defendant moves to strike the same."
New dem. No. 9. "Defendant demurs to the allegations of Par. 65 (n) of plaintiff's amended petition on the ground that said allegation is based on the conclusion of the pleader that there was a misinjection of said BSP solution, there being no facts alleged in plaintiff's petition that would support said allegation, and defendant moves to strike the same."
New dem. No. 10. "Defendant demurs to Par. 65 (n) of plaintiff's amended petition on the ground that said allegation is incompetent, irrelevant and immaterial, in that plaintiff has based said allegation on what she alleges to be proper treatment for an alleged misinjection and in its present form said allegation is prejudicial and designed to inflame the minds of the court and jury, and defendant moves to strike the same."
New dem. No. 11. "Defendant demurs to Par. 65 (n) of plaintiff's amended petition upon the ground that said allegation is a conclusion of the pleader unsupported by any well-pleaded facts and defendant moves to strike the same."
Par. 65 (o). "In that defendant, and its agent and servant, the said Felicitas Soriano, did, by reason of all of the aforesaid facts, fail to exercise reasonable care and skill in the treatment of the plaintiff."
Hurt, Hill & Richardson, James C. Hill, Robert L. Todd, for appellee.
Paul C. Myers, William I. Aynes, for appellant.
ARGUED JANUARY 3, 1966 -- DECIDED JULY 11, 1966.
Friday May 22 20:21 EDT


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