UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Prettyman, Senior Circuit Judge and Leventhal, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
Early on a Sunday morning in January 1964, William L. Perotti plunged from the seventh floor of the Sibley Memorial Hospital, which he had entered the afternoon before as a psychiatric patient. Despite emergency treatment, he died later that morning. His widow, as the administratrix of his estate, obtained a jury verdict for $60,000 against the appellant corporation, which operates the hospital, under the District of Columbia wrongful death statute, 16 D.C.Code §§ 2701-03 (1967).
The hospital argues that there was not sufficient evidence of negligence by its agents or employees to support a verdict against it. We reject this contention. Because the trial court incorrectly instructed the jury that a violation by the hospital of a 1909 municipal regulation governing the maintenance of hospitals would constitute negligence per se, however, we reverse the judge and remand for a new trial. I
Until the spring of 1963, the deceased led a quiet life with no hint of mental illness, so far as the record reveals. Married and the father of two young boys, he worked as a cartographer for the Army Map Service. In April or May of that year, however, he applied for an intra-agency transfer and, as part of that process, took a polygraph test. Vague but terrifying fears concerning the results settled upon his life. He had trouble sleeping and withdrew from social activities. His appetite disappeared, and by the end of the summer he had lost 25 pounds.
Mr. Perotti's wife, concerned for his health, suggested a check-up from their family physician, who in turn recommended consultation with a psychiatrist. The deceased made an appointment with a Dr. Santucci, who concluded that he "could best be treated in a hospital setting." Mr. Perotti accepted this advice, and that same evening, September 3, 1963, entered Ward 7-W, the psychiatric wing at Sibley Memorial Hospital.
At the time of this first admission, Dr. Santucci tentatively diagnosed the deceased's condition as a "paranoid depression." The initial treatment plan included a type of tranquilizer that normally produced its best results three or four weeks after therapy began. Mr. Perotti, however, became impatient before then and evinced a great interest in going home and returning to work. At that time Dr. Santucci strongly favored further hospitalization, and went so far as to prepare the physician's certificate necessary to commit Mr. Perotti involuntarily to an institution in Maryland, where he resided. This certificate, which eventually became part of the patient's hospital records, indicated that Mr. Perotti was at that time suicidal. Regarding his general mental condition, Dr. Santucci noted,
Patient is depressed and preoccupied with feelings of guilt, apathetic, has slowness of speech, has marked feelings of guilt for vague past actions, lies in bed all day; delusions of persecution at work.
Both Mr. Perotti and his wife were opposed to commitment, however, and the patient began to show some improvement, apparently because of the drug therapy. For either or both of these reasons, Dr. Santucci pursued the commitment matter no further. But since he felt that Mr. Perotti's improvement was somewhat superficial, leaving the underlying illness uncured, he still favored further hospitalization at Sibley.
On September 26, 1963, Dr. Santucci discharged Mr. Perotti as "improved . . . but not fully recovered." Although the plaintiff testified in her deposition that this discharge was not against Dr. Santucci's advice, his discharge note in the patient's record stated, "He is being discharged under my protest but he is not so ill as to be committable."
Mr. Perotti returned to work that fall, resumed his social activities and regained some of his lost weight. Early in January 1964, however, his medication ran out and he did not renew the prescription. After several days of normal activity, he became "very quiet," according to his wife, and was abnormally affectionate toward his family. The family physician again referred Mrs. Perotti to Dr. Santucci. An appointment was made for the following week. Two days later, however, Mr. Perotti collapsed while hailing a neighbor from his front door. Although he recovered quickly, Mrs. Perotti called Dr. Lertora, who was covering Dr. Santucci's practice since he was away from town that weekend on professional business. Dr. Lertora spoke with Mr. Perotti over the telephone, found his speech to be "very slow" and "very depressed," and suggested he return to the hospital. Mr. Perotti agreed, and reentered the psychiatric wing of Sibley Memorial Hospital early that afternoon, a Saturday.
Dr. Lertora, who did not see the patient personally, advised the nurse in charge of Ward 7-W to administer only sleeping medication and to keep Mr. Perotti under observation. As on his first admission, and as was customary with new patients generally, Mr. Perotti was admitted to the closed portion of the psychiatric wing, which was separated from the front or open section reserved for less disturbed patients by a solid door that was kept locked. He spent a quiet afternoon talking with his wife when she visited. The psychiatric technician who filled out the evening reports noted that he was chain-smoking and non-communicative and refused to eat.
Early the next morning Mr. Perotti asked a technician whether he could go to the open side. The technician told him that the hospital regulations required him to stay in the closed section until his physician gave orders to the contrary. Shortly thereafter, a nurse observed him standing in the corridor in the open section. Although no one testifying at the trial quite knew how he got there, the most obvious possibility suggested was that he had slipped through while the normally-locked door was open to permit the food cart carrying breakfast to enter the closed section.
The nurse asked a psychiatric technician to return Mr. Perotti to the proper section. When the technician reached the patient, who by then had walked to the solarium or living room at the far end of the corridor, Mr. Perotti cooperated and began walking back to the closed section. After the two had walked some ten paces side-by-side, however, Mr. Perotti wheeled and ran back toward the solarium. Before the technician could catch up, he dived through the window.
The window in the solarium, the main portion of which was four and one-half by five feet, was one-quarter inch laminated safety glass. Like the bedroom windows in both sections of the psychiatric wing, which were also safety glass, it was unbarred. Since the hospital sought to create an open, unrestrictive atmosphere wherever possible in the ward, only the windows in the two seclusion rooms reserved for very seriously disturbed patients and a window at the end of the corridor in the closed section were grated. The seclusion-room windows had Chamberlin screens securely seated in the masonry of the wall which not even a powerful man could dislodge; the window at the end of the corridor had an ornamental screen of unspecified design. II
Although the plaintiff made numerous allegations of negligence against the hospital, she relied principally upon the failure of the hospital to place stronger glass in its windows that would prevent patients from crashing through, and upon the carelessness of the hospital personnel in allowing Mr. Perotti to slip from the closed to the open section of the ward. The plaintiff also submitted as evidence of negligence a municipal regulation dealing with ...