MacOn-bibb County Hospital Authority v. Appleton

Jordan, Presiding Judge.

1. "In the absence of anything to the contrary, every adult is presumed to possess ordinary intelligence, judgment, and discretion. Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (68 SE 483).” Edwards v. Atlanta, B. & C. R. Co., 63 Ga. App. 212, 215 (10 SE2d 449). "Certainly, a man cannot heedlessly rush into grave peril of the existence of which he is perfectly aware, and then hold anyone else, whether negligent or not, responsible for the consequences.” City of Columbus v. Griggs, 113 Ga. 597, 598 (38 SE 953, 84 ASR 257).

The grave peril here involved would have been obvious to a normal adult, and the applicability of the foregoing principles to the present case depends upon whether the evidence of the mental condition of the plaintiff would support a jury determination that he was incapable of understanding the danger to which he sub*447jected himself, and therefore not responsible for the consequences.

Although the plaintiff had undergone treatment as a mentally disturbed person, he had never been adjudged mentally incompetent. On the advice of his attending physician, a psychiatrist, he entered the hospital voluntarily on December 20, 1968. This physician diagnosed his condition at that time as "psychotic depressive reaction.” Explaining the condition in lay terms he stated that it "does not necessarily mean that a person cannot think. It simply has to do with his mood. It has to do with a deep depressed mood. I think many of us have experienced it to a slight degree on a Monday morning. What we call a 'blue Monday’ when you just feel bound. Well, this is an extension of this particular feeling to the point where the individual is really sick and can’t do for himself. He feels immobilized and feels perfectly miserable, but he can still think coherently and logically and reason.” This witness also testified that the patient’s electroencephalogram disclosed an abnormal wave pattern.

The plaintiff, age 28 at the time of trial in November, 1969, had been laid off in 1968 from his job as a welder. He testified that he began to experience the condition which caused him to seek psychiatric treatment because he was unemployed and because of the lack of money to pay hospital bills for his wife’s operation for the removal of her gall bladder, her inability to work, and things of that nature. While in the hospital from December, 1968, to January 14, 1969, he recalled receiving three or four shock treatments. According to his physician he actually received five of these treatments, commencing about January 1, 1969. He left the hospital on January 14, 1969, contrary to the advice of his physician. While out of the hospital he recalled going to Birmingham, Alabama, to pick up his daughter, who was living with friends, and he also remembered breaking up his guitar because he couldn’t play it.

On January 17, 1969, a traffic policeman of the City of Macon received a call to pick up a "demented” person at an apartment address. A "bluecoat” policeman arrived at the address moments before — "three or four car lengths” or "maybe twenty or twenty-five steps ahead.” The traffic policeman observed scattered clothes, furniture out of place, and a broken guitar with the neck sticking *448out of the garbage can. The plaintiff, who was not at the apartment when the policemen arrived, returned about this time, accompanied by another person. The traffic policeman described the plaintiff as "wild-eyed.” In a conversation with the plaintiff this policeman suggested that the plaintiff go to the hospital. The plaintiff then said, "I done left the hospital. They won’t take me back.” After further conversation he said, "If you will take me, I will go, but I won’t go with nobody else.” The plaintiff then accompanied this policeman to the emergency room of the hospital voluntarily, without physical restraint and without untoward incident.

A hospital policeman at the emergency room of the hospital engaged the plaintiff in a conversation for about an hour, or an hour and a half. They walked together to the patient’s assigned room on the seventh floor of the hospital. This witness stated that the plaintiff was cooperative and rational, although the plaintiff did tell this witness that his wife was trying to put him away.

The nurse on duty in the psychiatric ward recalled first seeing the plaintiff on January 17 around 11 a.m. She had become acquainted with him when he was previously undergoing treatment in the hospital. He told her he was glad to be back and that he wanted help. In her words, "He seemed quite rational, very pleasant, very cooperative and he didn’t give us any trouble at all.” At 1 p.m. he accepted voluntarily a dosage of 200 milligrams of Thorazine, the dosage prescribed for him to receive three times daily. This medicine is elsewhere identified as a tranquilizer. The nurse completed her duty in the ward at 3 p.m., and the last time she saw the plaintiff before leaving he was all right.

The nurse who came on duty at 3 p.m. recalled that shortly after the change of shifts the plaintiff announced he was going to get out of the hospital, and that he made this statement more than once. In one of his statements he said he wanted to see a lawyer about getting another patient out of the ward because "he didn’t feel she was sick.” Although there is no court order in the evidence it appears that preceding his announced intention he had received information to the effect that because of a court order which his wife brought to the hospital he would not be permitted to leave the hospital voluntarily. During the afternoon he was al*449lowed freedom of movement in the ward. He was originally placed in Room 710.

About 4 p.m., while the plaintiff was in this room, the nurse discovered that a security screen in the room was ajar and moved the plaintiff to Room 701. The only way the nurse knew that a security screen could be opened was by means of a key, which was kept locked up and was not available to patients. Suspecting that the plaintiff had opened the screen and that it might be defective, she conducted an investigation to determine the means used — "we went over it with a fine-tooth comb almost” — but nothing was found except a bent ashtray. She questioned the plaintiff and he denied opening the screen. He appeared calm and rational. Although he was allowed the freedom of the ward, measures were instituted to check on his presence every 10 or 15 minutes. One attendant was specifically instructed to check every 15 minutes, in addition to the nurse’s expressed intention of periodically checking. At the 6 p.m. medication period the plaintiff still asserted he was going to get out and refused to take his prescribed dosage of Thorazine. She called five attendants. The patient was sitting down and the five attendants were standing behind the nurse. He took the medicine orally. The dosage of 200 milligrams was a "rather large dose” but the plaintiff had a high tolerance. The plaintiff was calm after taking this medicine and made no further statements to this nurse about wanting to get out of the hospital. Around 8 p.m. this nurse saw him standing at the door of his room. He appeared to be calm. She glanced in his room to see if anything was in disarray. Some 15 minutes later she went down the hall to check on the plaintiff and discovered that the screen in his room was open and that he was gone.

The testimony of an attendant in the ward who came on duty at 3 p.m. is in substantial accord with that of the nurse on duty. The attendant was instructed to check on the patient every 15 minutes or less. The last time this attendant saw him, about 15 minutes before his fall, he came down the hall from the television room for the attendant to light his cigarette, walked back up the hall to the television room, came out again and went to his bedroom. While checking on the patient the attendant also checked his room and saw nothing in disarray. Both before and after the *450medication about 6 p.m. he told this attendant he was going to get out of the hospital before the night was over. This attendant had no reason to believe that the patient could open the screen in the room where he had been transferred. Although patients who were "violent or very hostile” were physically restrained, the plaintiff was not acting in this manner.

We conclude from the foregoing evidence that whether the plaintiff should be accorded the responsibility of a normal adult, acting as a reasonable man, in respect to his own conduct as the cause of his injuries, was a matter for jury determination.

2. Inasmuch as a jury could determine from the foregoing evidence that the plaintiff may not have been accountable for his own unorthodox conduct which caused his injuries, the controlling issue on this appeal is whether under the evidence a jury could also determine that the hospital, through its agents and servants, failed to exercise the requisite care necessary to prevent the occurrence.

In the posture of the case as presented on appeal we think the defendant is bound by the action of the trial judge in placing on the hospital and its agents and servants a duty to exercise ordinary care. The evidence fails to establish as a matter of law that the plaintiff was not a pay patient and "it is well established that a hospital owes a duty to a pay patient to exercise such reasonable care in looking after and protecting the patient as his condition, known to the hospital through its agents and servants charged with the duty of looking after and supervising him, may require, but the hospital is not an insurer of the patient’s safety. 26 AmJur 595-596, Hospitals and Asylums, § 14; 41 CJS 349, Hospitals, § 8 (3). See for collection of Georgia Cases, 12A Ga. Digest 239, Hospitals, § 7.” Hospital Authority of the City of St. Marys v. Eason, 222 Ga. 536, 539 (150 SE2d 812).

Assuming that the announced intention of the plaintiff was sufficient to place the hospital and its agents or servants on notice that he would attempt to breach the physical barrier imposed by the locked security screens, the evidence amply demonstrates that it would be impossible to break one of these screens, unless one was possessed of gargantuan strength, or was ingenious enough, using any materials at hand, to devise some means of unlocking a *451screen. The screens had been used for a number of years, and BIC pens were normally issued to patients on request, as no one had the slightest reason to believe that a BIC pen could be used as a substitute for the key designed to unlock the screens. Even if we assume that a continuous surveillance of the plaintiff’s activities would have prevented his self-caused injuries, to impose such a duty on the hospital and its agents or servants would in effect impose a duty of insuring his safety, and would far exceed a standard of reasonable care under the circumstances here shown.

We recognize, of course, that ordinarily what constitutes negligence, except negligence per se, is for jury determination, hut from a perusal of the entire evidence in the present case we find no basis whereby a jury could conclude that the hospital, through its agents or servants, failed to exercise reasonable care for the safety of the plaintiff.

3. The trial judge erred in refusing to direct a verdict for defendant and in refusing to grant judgment n.o.v.

Judgment reversed.

Bell, C. J., Hall, P. J., Eberhardt and Been, JJ., concur. Pannell, Quillian, Whitman and Evans, JJ., dissent.