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Larrimore v. Homeopathic Hospital Ass'n of Del.

Supreme Court of Delaware

May 23, 1962

Betty F. LARRIMORE, Widow and Administratrix of the Estate of Charles H. G. Larrimore, Appellant and Cross-Appellee,
HOMEOPATHIC HOSPITAL ASSOCIATION OF DELAWARE, a corporation of the State of Delaware, Appellee and Cross-Appellant.

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Cross-appeals from the Superior Court in and for New Castle county.

Harold Leshem, of Leshem & Rubenstein, Wilmington, for appellant and cross-appellee.

Rodney M. Layton, of Richards, Layton & Finger, Wilmington, for appellee and cross-appellant.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and CAREY, Judge, sitting.

[54 Del. 450] WOLCOTT, Justice.

These are cross-appeals from an order of the trial judge, entered after a jury's verdict of $30,000.00 for the plaintiff, denying defendant's motion for a directed verdict or a new trial as to the issue of liability, but granting a new trial on the issue of damages only. The plaintiff appeals from the grant of a new trial on the issue of damages. The defendant cross-appeals from the imposition of liability.

In 1954, the decedent, the husband of the plaintiff who brings this action as administratrix, was determined to be suffering from chronic glomerulonephritis. This disease is an inflammation of the various elements of the kidney with the gradual obliteration of them by scar tissue, ultimately resulting[54 Del. 451] in the inability of the body to excrete waste materials. When the consequent retention of waste materials transcends the point at which the body is able to compensate, renal insufficiency occurs which, if unarrested, results in death.

On September 11, 1959, the decedent was admitted into the defendant hospital for the purpose of determining whether the administration of a certain drug, Ansolysen, might arrest the decedent's malignant hypertension. Prior to his admission, the decedent was aware of the fatal nature of his disease, and that the use of the drug, Ansolysen, was a desperate attempt to arrest its fatal course. He had requested his doctor not to let his wife know that he knew the grave nature of his disease.

The method of administering the drug, Ansolysen, was to be parenterally, or by injection

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directly into body tissue. The purpose of the selection of this method was to permit an absolute control over the dosages so as to determine whether or not the use of the drug improved or worsened the renal function of the patient. The same degree of control was impossible to obtain by oral administration of the drug.

Upon his admission to the hospital, the decedent commenced receiving injections of one milligram of Ansolysen at periodic intervals. After such treatment over a period of time, it was determined that the injection of the drug was not arresting the course of the decedent's fatal disease. In accordance with his wishes, therefore, his doctor decided to discontinue the injections and send the decedent home for terminal care.

Since, however, the abrupt discontinuance of injections of Ansolysen is apt to bring on complications, the doctor decided to ease off the treatment by a series of oral administrations of the drug. Accordingly, on October 1, 1959, the decedent's doctor entered on the decedent's Hospital Order Sheet a direction to discontinue the injections of Ansolysen and [54 Del. 452] to commence the administration of Ansolysen by mouth in the amount of twenty milligrams. This was continued on October 2, 1959 by entry on the Order Sheet to continue the dosage by mouth. On October 4, 1959 the physician entered on the Order Sheet the direction to 'increase Ansolysen, 30 Milligrams at eight a. m., 30 milligrams at two p. m., and 30 milligrams at eight p. m.'

The Order Sheet in the hospital consists of a series of pages clipped together, and is the means used by the doctor to give orders to be carried out by the nursing staff. They are ordinarily attached to something in the nature of a clip board. As a matter of fact, the doctor's orders for October 1 through October 4 were all on one sheet of paper, although the entries preceding October 4 were covered with a number of shorter sheets which, nevertheless, could be raised to read the covered-over entries.

On October 4 a nurse who had been off duty since October 1 and who, prior to going off duty, had administered Ansolysen to decedent by injection, was handed the Order Sheet by decedent's doctor. She read it and asked if he wanted her to give the decedent 30 milligrams of Ansolysen, to which the answer was, 'Yes.'

The nurse thereupon prepared a needle containing 30 milligrams of Ansolysen and went to the decedent's room. Both the decedent and his wife, who was present at the time, protested that the doctor had said the decedent was to receive no more injections. The nurse thereupon reread the Order Sheet and returned to the decedent's room insisting that the injection be given. Reluctantly, the decedent permitted the nurse to inject the drug. The nurse then told the decedent he was to receive another injection the next day and when the decedent stated he would not take any more ...

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