#### MRS. ALICE BYRD v. MARION GENERAL HOSPITAL, DR. J. F. MILLER and MRS. J. F. MILLER.

(Filed 2 March, 1932.)

1. Hospitals D a — Nurse is not liable for injury caused by executing orders of physician unless it is apparent that injury would result.

Nurses in a hospital in the discharge of their duties must obey and diligently execute the orders of the physician or surgeon in charge of the patient, and they will not be held liable for injury resulting to the patient from executing such orders unless such orders are so obviously negligent as to, lead any reasonably prudent person to anticipate that substantial injury would result to the patient therefrom.

2. Same — Evidence in this case held insufficient to be submitted to jury in action against nurse for injury to patient.

Where a family physician diagnoses the condition of his patient and prescribes that she be removed to a private hospital and given treatment in an electric heat cabinet, an appliance approved and in general use, and is present with the nurse attending the patient and sees and approves of the way the body of the patient is prepared for the treatment and directs that the patient remain in the cabinet a certain length of time, and injury results to the patient from being burned: *Held,*the injury must have resulted from one of three causes, and if it resulted from the peculiar susceptibility of the patient to heat due to her condition it resulted from an error in diagnosis by the physician, or if it resulted from the length of time the patient was kept in the cabinet, the length of time was expressly prescribed by the physician, or if it resulted from improper preparation of the body of the patient for the treatment, the physician was present and knew what preparations had been made, and under the circumstances the treatment of the nurse was the treatment of the physician, and the nurse cannot be held liable for the injury, it not being apparent that substantial injury would result from the execution of the physician’s orders.

*3.*Hospitals O a — Where nurse is not liable fox’ injui’y to patient the hospital cannot be held liable as her employer.

Where an injury to a patient is not attributable to any negligence of the attending nurse the owner or lessee of the hospital employing the nurse cannot be held liable on the doctrine of *respondeat superior.*

*3384. Negligence A e — Where all facts causing injury are known the doctrine of res ipsa liquitur does not apply.

Where all the facts causing an injury are known and. testified to by the witness the doctrine of *res ipsa, loquitur*does not apply.

Civil action, before *Sink, J.,*at July Term, 1931, of McDowell.

Tbe defendant hospital is a corporation, and it was alleged that said corporation was engaged in running a general hospital for the treatment of diseases. It was further alleged that the defendant, J. E. Miller, was a physician and surgeon, and by virtue of some contractual relationship between him and the hospital, was engaged in the operation and management thereof, and that Mrs. J. F. Miller, the wife of defendant, Miller, was assistant superintendent or assistant manager. The hospital filed an answer alleging that the defendant, Dr. J. E. Miller, had leased the hospital and was operating it on his own account at the time of plaintiff’s injury.

A summary of the evidence is as follows: The plaintiff is the wife of Frank Byrd and had given birth to a child on or about 16 January, 1929. Plaintiff’s physician was Dr. Bingham, who had no connection whatever with any of defendants, but was engaged in the general practice of medicine. Dr. Bingham had been treating plaintiff and advised the husband of plaintiff that she was threatened with convulsions. He said if she did to rush her up there to the hospital and have them sweated out. Dr. Miller had never seen my wife up to that time. Up to the time the child was born Dr. Miller never was my doctor. Up to the time she was treated in this electric cabinet he never had been my doctor. . . . Dr. Bingham was the man who sent her to the hospital. . . . Dr. Bingham was the man who prescribed this sweat cabinet treatment and the only doctor I had. He was the last one and I followed his advice; I never took any advice from Dr. Miller at all about what treatment to give my wife. So far as I know Dr. Miller had never seen me in my life.

On 22 January, the plaintiff began having convulsions and her husband and certain friends of the family placed the plaintiff in an ambulance and took her to the hospital in order that she might be treated in the “sweat cabinet” owned and operated by the Millers, and sometimes referred to as a baking machine or radiation cabinet. This appliance is a metal box about two and a half feet wide and about two feet high. The top is oval shaped. In front there is a glass window so that anyone can look in and see the patient. One end has a curtain over it and there is a padding upon which the patient lies. The cabinet was equipped with forty electric lights controlled by four switches, there being about ten *339lights to each .switch. Each bulb carried about forty volts. The head of the patient is not within the machine. The curtain referred to drops below the head, leaving that part of the body totally outside the machine. The undisputed evidence from experts and disinterested witnesses tended to show that the appliance was known as the Burdick type of machine,, and that the mechanism was approved and in general use. Dr. Hall,, teacher of zoology and physiology at Duke University, testified: “I have used the Burdick cabinet for seven or eight years in my experimental work. I am familiar with the construction and operation of these Burdick cabinets. They are used universally in hospitals. I think nearly every hospital of any size has a similar type of cabinet. . . . It was used during the World War.”

The defendant, Mrs. J. L. Miller, testified that on 22. January, 1929, Dr. Bingham called the hospital and that she answered the telephone; that Dr. Bingham called for Dr. Miller, and that witness informed him that Dr. Miller was out of town; that thereupon Dr. Bingham said: “I have a patient that I am sending in that I want sweated in the sweat cabinet immediately, and I will be right along, and you go down and get it ready.” In a few minutes the plaintiff, with her friends, arrived at the hospital and Mrs. Miller, who wás superintendent of nurses, received the plaintiff and proceeded to prepare her for the sweat cabinet. All her clothing was removed except a light vest, a light gown and an abdominal binder. The plaintiff was then unconscious and was having convulsions about every five minutes.

At this point there is a divergence in the evidence. Mrs. Miller and her witnesses testify that Dr. Bingham came before the plaintiff was. placed in the cabinet. The husband of plaintiff testified: “I couldn’t say whether Mrs. Miller had placed my wife in this sweat cabinet before Dr. Bingham came in or not.” Subsequently he testified: “I won’t be positive, but I think I saw my wife in the sweat cabinet before Dr. Bingham got in there.” Another witness for plaintiff testified: “After I got there I would say it was at least ten minutes, if not longer, until Dr. Bingham showed up.” A witness for plaintiff also testified that she was informed that a hypodermic had been given to the plaintiff a few minutes after she was placed in the cabinet. The hands and feet of plaintiff were tied in order to eliminate the possibility of breaking the electric lights and inflicting cuts during her struggles when seized with convlusions.

Dr. Bingham was not examined as a witness, by either party. The defendants, however, offered the testimony of a neighbor of the plaintiff, to wit, Mrs. Davis Bright, who went with her to the hospital. She testified that when the plaintiff was put in the cabinet that Dr. Bingham *340was present and going in and out from the cabinet room, and that he directed Mrs. Miller to fix a hypodermic and give it to the plaintiff; that Mrs. Miller requested Dr. Bingham to watch the patient while she prepared the hypodermic. After administering the hypodermic Mrs. Miller asked Dr. Bingham: “How long do you want this patient to stay in here ?” and he said: “How long has she been' in ?” She said: “About thirty minutes.” He said: “Let her stay in about ten minutes longer.” The nurse who assisted in preparing the plaintiff for ■ the treatment, testified that Dr. Bingham was present at the time the patient was placed in the cabinet, and that she kept a cold cloth on Mrs. Byrd’s head, and that Dr. Bingham prescribed the hypodermic which was given by Mrs. Miller. Reverend J. S. Lockaby, rector of the Episcopal Church in Marion, who was in the hospital, testified that he heard the conversation between Mrs. Miller and Dr. Bingham; that he went down and stood in the door of the cabinet room during the time Mrs. Byrd was there, and that Dr. Bingham was present.

The defendant offered the testimony of several witnesses who had been treated frequently in the 'machine, and the treatment was administered to the naked body and no ill effects resulted. The evidence for defendants tended to show that Mrs. Byrd was suffering with oedema, but there was evidence to the contrary. The defendant also introduced many experts who testified that the treatment of plaintiff by means of dry heat was an improper method of treatment.

Plaintiff introduced evidence of a physician who testified that if the plaintiff had been properly prepared, “covered with Turkish towels, you couldn’t burn her.” Witness further testified that he had never used a machine like the one in controversy or had never served in a hospital where one was used, and that he knew nothing about the particular type of appliance.

In a few hours after plaintiff was removed from the sweat cabinet it developed that she had suffered serious and painful burns. Her legs and body were severely burned, resulting in the sloughing of tissue and causing exceedingly serious and permanent injuries.

No judgment was sought against the hospital and the following issues were submitted to the jury:

1. “Was the injury to plaintiff caused by the negligence of the defendants, as alleged in the complaint?”

2. “What damage, if any, is the plaintiff entitled to recover of the defendants ?”

The jury answered the first issue: “As to Dr. J. F. Miller, yes.”

The second issue was answered in the sum of $29,975.

From judgment upon the verdict the Millers appealed.

*341
      *D. F. Giles and A. Hall Jobnston for plaintiff.*

*J ohnson, Smothers & Rollins and T. A. TJzzell for defendant.*

Bbogden, J.

What duty does a nurse owe to a patient?

At the outset it must be observed that no judgment was sought against the hospital or the physician of plaintiff who directed that she be sent to the hospital and given the specific treatment, which is the basis of plaintiff’s cause of action.

The great majority of cases discussed in the books involve the liability of hospitals for the negligence and inattention of nurses. The liability rests upon the theory that the nurses in discharge of their duties are agents or servants of the hospital. In this case, however, the liability is asserted against the nurse personally, and against her husband who was the lessee of the hospital upon the principle of respondeat superior.

The general rule of legal liability imposed upon hospitals, nurses and physicians undertaking to treat patients are succinctly, expressed by *Stacy, G. J.,*in *Pangle v. Appalachian. Hall,*190 N. C., 833, 131 S. E., 42, as follows: “Ordinarily, when a hospital, like the present one, undertakes to treat a patient, without any special arrangement or agreement, its engagement implies three things: (1) that its physicians, nurses and attendants possess the requisite degree of learning, skill and ability necessary to the practice of their profession, and which others similarly situated ordinarily possess; (2) that its physicians, nurses and attendants will exercise reasonable and ordinary care and diligence in the use of their skill and in the application of their knowledge to the patient’s case; and (3) that its physicians, nurses and attendants will exert their best judgment in the treatment and care of the case.” See, also, *Johnson v. City Hospital,*196 N. C., 610, 146 S. E., 573; *Bowditch v. French Broad Hospital,*201 N. C., 168; *Schloendorff v. Society of N. Y. Hospital,*21 S. W. (2d), 125; *Norwood Hospital v. Brown,*122 Southern, 411, 22 A. L. R., 341; 39 A. L. R., 1431. These cases and others of like tenor support and fortify the measure of liability expressed in the *Tangle case, supra.*

The great weight of authority, however, establishes the principle that nurses, in the discharge of their duties, must obey and diligently execute the orders of the physician or surgeon in charge of the patient, unless, of course, such order was so obviously negligent as to lead any reasonable person to anticipate that substantial injury would result to the patient from the execution of such order or performance of such direction. Certainly, if a physician or surgeon should order a nurse to stick fire to a patient, no nurse would be protected from liability for damages for undertaking to carry out the orders of the physician. The *342law. contemplates that tbe physician is solely responsible for tbe diagnosis and treatment of bis patient. Nurses are not supposed to be experts in tbe technique of diagnosis or tbe mechanics of treatment.

Tbe evidence in this case discloses without contradiction tbe following vital and pertinent facts:

(a) That Dr. Bingham was tbe physician of plaintiff, who directed that tbe plaintiff be placed in tbe custody of defendants or taken to tbe hospital.

(b) That be examined tbe plaintiff and diagnosed her disease.

(c) That be specifically prescribed tbe immediate treatment in tbe sweat cabinet owned and operated by tbe Millers.

(d) That be was present at tbe time tbe treatment was administered. While there is a conflict in tbe evidence as to whether be was present when tbe plaintiff was prepared for tbe cabinet or when tbe treatment was actually commenced, there can be no controversy that be was present within ten or fifteen minutes from tbe time she was placed in tbe sweating machine.

(e) That tbe physician, within a few minutes from tbe time tbe plaintiff was placed in tbe cabinet, was thoroughly advised as to bow she was prepared .for tbe treatment and tbe general methods and progress thereof. Indeed, it appeared, without contradiction, that be prescribed a hypodermic during tbe course of tbe treatment.

(f) That tbe physician, being present at tbe time, directed tbe nurse specifically to keep tbe plaintiff in tbe-cabinet for a period of thirty minutes.

(g) That tbe appliance was approved and in general use, and there is no evidence of any defect in tbe instrumentality or of excessive beat.

(b) There is no evidence whatever that tbe defendant, Mrs. Miller, was incompetent or that she did not possess that degree of skill which tbe law requires, or that, in operating tbe machine, she failed to exercise tbe degree of care which tbe law deems essential.

From tbe foregoing facts it must be manifest to any impartial mind that tbe serious and distressing injuries of tbe plaintiff resulted from one or all of tbe following factors: (a) her body was improperly wrapped before being exposed to tbe beat; (b) that she was suffering from some disease rendering her unusually sensitive to beat application; (c) that she was retained in tbe cabinet for too great a period of time.

If tbe injury resulted from a peculiar condition of plaintiff’s body, producing unusual or abnormal susceptibility to beat, then this was a matter of diagnosis and lay exclusively within tbe duty of tbe physician, unless, of course, as hereinbefore indicated, tbe type of disease was so *343pronounced and so well known as to lead tbe nurse in the exercise of ordinary care to anticipate injury. However, upon that aspect, there is no evidence.

If the injury resulted from subjecting the patient to the heat of the cabinet for an excessive period of time, then the evidence disclosed that such period of time was actually prescribed by the physician who was present during the treatment.

The only aspect, therefore, upon which the liability of the nurse or of her husband, upon the principle of respondeat superior, can be based, is that the patient was improperly wrapped or covered before the treatment was administered. Obviously, if a patient is carried to a hospital by the order of a physician ánd the nurse undertakes to administer a treatment without instruction from the physician, or when the physician was not present, she will be held liable in damages for any failure to exercise ordinary care, and consequently, would administer such treatment at her peril. But, upon the Other hand, if the physician is present and undertakes to give directions, or, for that matter, stands by, approving the treatment administered by the nurse, unless the treatment is obviously negligent or dangerous, as hereinbefore referred to, then in such event the nurse can then assume that the treatment is proper under the circumstances, and such treatment, when the physician is present, becomes the treatment of the physician and not that of the nurse.

Upon the whole evidence the court is of the opinion that, even if it be conceded that the body of plaintiff was not properly prepared for the treatment when her physician stood by without protest or direction, and being fully cognizant of the condition of her body and of all the facts and circumstances surrounding the treatment, the preparation of the body was a part of the treatment prescribed by the physician. Moreover, there is an abundance of evidence, and none to the contrary, that the heat was usually applied to a nude body, resulting in no harmful consequences. So that, there was nothing to indicate to the nurse that the preparation of the body of plaintiff with the acquiescence and implied approval of the physician was obviously dangerous or likely to produce harm.

Of course, if Mrs. Miller was liable in damages, her husband would also be liable because he operated the hospital and employed his wife as superintendent of nurses. Hence if Mrs. Miller is not liable in damages, no recovery could be sustained against her husband.

The court, in reaching a conclusion, has given full consideration. to the application of the -principle of *res ipsa loquitur.*.All the facts causing the injury are known and testified to by various witnesses at the *344trial. Hence tbe doctrine is not applicable for tbe reasons pointed out in *Springs v. Doll,*197 N. C., 240, 148 S. E., 251.

Tbe court concludes upon all tbe evidence and upon tbe proper application of tbe pertinent rules of liability, tbat tbe motion for nonsuit, duly made, should have been granted.

Reversed.