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July 3, 1958


The opinion of the court was delivered by: John E. Miller, District Judge.

The plaintiff, Charles B. McElroy, is a citizen and resident of the State of Oklahoma. The defendant, Employers' Liability Assurance Corporation, Ltd., is a corporation incorporated under the laws of the State of Massachusetts, and is engaged in the insurance business in Arkansas.

On April 15, 1958, plaintiff filed his suit against defendant, the insurer of Sparks Memorial Hospital of Fort Smith, Arkansas, under Ark.Stat.Ann. § 66-517 (1947), which provides:

    "When liability insurance is carried by any * * *
  non-profit corporation, association or
  organization * * * or by any other organization or
  association of any kind or character, not subject to
  suit for tort, and any person * * * suffers injury or
  damage to person or property on account of the
  negligence or wrongful conduct of any such
  organization * * * its servants, agents or employees
  acting within the scope of their employment or
  agency, then such person * * * so injured or damaged
  shall have a direct cause of action against the
  insurance company or insurance association with which
  said liability insurance is carried to the extent of
  the amount or amounts provided for in said policy of
  insurance * * * and such insurer shall be liable
  directly to such injured person * * * for such
  damages to the extent of such coverage in said
  liability insurance policy, and the plaintiff or
  plaintiffs may proceed directly against said insurer
  regardless of the fact that the actual tort-feasor
  may not be sued under the laws of the State [of

Sparks Memorial Hospital of Fort Smith, Arkansas, is a charitable institution as such institutions are defined by the law of Arkansas, and is not subject to suit for tort. Michael v. St. Paul Mercury Indemnity Company, D.C.W.D. Ark., 92 F. Supp. 140, and cases cited therein.

It is admitted by the defendant that on February 12, 1957, it issued to Sparks Memorial Hospital its policy of liability insurance, and there is no question but that the insurance policy was in full force and effect on all dates material herein.

It is alleged in the complaint and admitted by defendant that plaintiff was admitted as a patient to the hospital on October 24, 1957, and that on October 30, six days later, he underwent surgery which involved an incision of his left side and the removal of a tumorous growth from his left kidney.

The plaintiff alleged that on November 7, 1957, seven days after the operation, "as a direct and proximate result of the carelessness and negligence of said hospital and its servants, agents and employees, the said incision burst open and the plaintiff suffered damages"; that the injuries and damages to plaintiff were proximately caused by the negligence of the hospital, its agents, servants and employees, by moving the plaintiff in a careless and negligent manner without using due care to protect said incision; that the said agents and employees, without using due care, held the plaintiff about the body in a careless and negligent manner and, when placing the plaintiff in a wheel chair, carelessly and negligently pulled on his body in such a way as to cause said incision to burst open; that the hospital negligently failed to provide personnel trained and equipped to move and handle a person in the plaintiff's condition, and that only nurses aids were provided for such work and service.

The plaintiff further alleged that as a result of the negligence of the hospital, its servants and employees, the plaintiff suffered a permanent partial disability, severe and excruciating pain and suffering from said injuries, incurred additional hospital, ambulance and medical expenses and lost earnings and will continue to lose future earnings, all as a direct result of the alleged negligent acts.

On June 30, 1958, the case was tried to the Court, without the intervention of a jury.

Testimony in reference to the alleged negligent acts establishes that at the time of the plaintiff's admission to the hospital he was sixty-nine years of age, having been born January 7, 1888. He had been referred to the hospital by a Dr. Lowery of Poteau, Oklahoma, and was at that time a severe arthritic and had been since 1950 or 1951. However, he had lost no time from his partial employment as a pharmacist prior to October 7, 1957, although he was then and had for sometime been confined to a wheel chair and had suffered a partial paralysis of both lower extremities and early paralysis of his upper extremities. There was a marked deformity of the upper and lower extremities, particularly of the fingers, due to arthritis, and there was some contracture of both knees and both elbows. Prior to the date of the operation, he had been referred to the Internal Medicine Department of the Holt-Krock Clinic of which Drs. Wilson and Wilson are members, and was cleared for the surgery by the Medical Department. The operation (left nephrectomy) was performed October 30, 1957, under a general endotracheal anesthesia. After removal of the twelfth rib, he was found to have a large tumor on the upper pole of his left kidney which was adherent to surrounding structures. A post examination on October 31, 1957, disclosed that the general condition of the plaintiff following the operation was good, and his attending physician prescribed that he should be given daily exercise by removing him from his bed to a wheel chair. He was also provided with a bed bicycle for exercise of his extremities. On November 7 about 8 o'clock a.m., the superficial sutures were removed by his attending physician, but the chromic sutures were not removed. The hospital record introduced into evidence erroneously reflects that the superficial sutures were removed on November 6, 1957.

A record made by Mrs. Helen Moser, Registered Nurse, reflects that in the afternoon of November 7, 1957, the plaintiff asked for help to get up out of bed, and that Miss Gayle Price, now Mrs. Gayle Price Durham, a student nurse, and Miss Clara Reicker, a nurses aid, went to help him, and according to his directions they got him out of bed and into the wheel chair with some assistance from him. While in the process, the plaintiff stated he felt "as if something broke loose". He was lifted back to bed by Mrs. Gayle Price Durham and Mrs. Moser, R.N., and the doctor notified.

As a matter of fact, the nurses aid and the student nurse went to his room on the morning of November 7, shortly after the superficial sutures had been removed, and proceeded to remove the plaintiff from bed into the wheel chair. Miss Reicker, the nurses aid, placed her arms around his lower back while Miss Price, the student nurse, held the chair in place. The plaintiff protested the manner of such removal and was rather vocal in his protestations against the procedure. Upon placing him in the chair the nurses aid permitted her hands and arms to move upward from the lower back or hips and one of her arms passed over the incision. Suddenly the plaintiff advised the young ladies that the wound had opened, and the registered nurse in charge on the floor, Mrs. Moser, was called. Upon examination of the wound it was found that the upper one-half of the incision had opened down to the peritoneum and that the muscles and lumbo-dorsal fascia were gaping widely.

The testimony of the nurses aid and the student nurse was contrary to the testimony of the plaintiff as to the procedure used in removing him from the bed to the wheel chair, but the Court is of the opinion that the plaintiff's version of what occurred is correct. The testimony of the young ladies as to the procedure employed by them was not convincing. In fact, they had very little definite remembrance of what was done or how it was done. They had been instructed how to remove a disabled patient from a bed to a wheel chair, and the ...

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