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December 29, 1961


Appeal, No. 215, March T., 1961, from judgment of Superior Court, April T., 1961, No. 139, reversing judgment of County Court of Allegheny County, No. A-2163 of 1959, in case of Mrs. Hazel E. Baur, widow of Frank W. Baur, v. Mesta Machine Company et al. Judgment reversed; reargument refused January 17, 1962.


Clyde E. Donaldson, for appellant.

Henry E. Rea, Jr., with him Brandt, Riester, Brandt & Malone, for appellees.

Thomas Lewis Jones, for amicus curiae.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Alpern

[ 405 Pa. Page 618]


This Court decided in Baur v. Mesta Machine Co., 393 Pa. 380, 143 A.2d 12 (1958) that when an employer voluntarily provides a first aid room and administers to ill as well as injured employees, it has

[ 405 Pa. Page 619]

    the duty to provide proper medical care. If the employee's death from coronary occlusion was found to be due to the neglect of the employer in not providing proper medical care, this would constitute an "industrial accident" which is compensable under the Workmen's Compensation Law. In reaching this conclusion this Court adopted the arguments advanced by Mesta and its insurance carriers in opposing the right of the plaintiff to recover in trespass against the defendants for the improper care given the decedent by the male nurse in charge of the Mesta dispensary. A demurrer to the trespass action was sustained. The right of the claimant to proceed under the Workmen's Compensation Law was specifically established.

Thereafter the widow's claim before the referee and the Workmen's Compensation Board was heard. Both held that this was not an industrial accident for which compensation should be allowed. The County Court of Allegheny County reversed, holding that the decision of the board was capricious and unwarranted in the light of the uncontradicted testimony in the record. On appeal to the Superior Court that court held that the board was right in denying the claim. This appeal presents the record and the legal problems implicit in the case back to this court for determination.

The facts in this case are important for the determination of the legal issues involved. Frank Baur, forty-five years of age, had been employed for nine years as a steel chipper at the Mesta Machine Company plant. On February 29, 1956 he reported for work at three o'clock for an eight-hour shift. Baur was doing lighter work than usual that day and had worked only fifteen minutes when he became ill. No unusual exertion brought on his illness.

Baur told a fellow workman, Widock, that he was feeling sick and that he had pneumonia. He said his

[ 405 Pa. Page 620]

    out of the first cab and moved into the second cab. The cab driver testified he assisted Baur "because he didn't seem to manage very well by himself." This was at 6:10 or 6:15 P.M.

In the course of the ride Baur told the cab driver that the pain in his chest was very severe. "... as sort of a dirty gray. He looked like he was dirty and very dark and his eyes were very bloodshot." Baur complained he was cold. The cab driver turned the heat up although the cab was actually warm.

The cab driver noticed a short time later that Baur had become unconscious. He was gasping for air. He loosened his clothing and took him to the Homestead Hospital. He was dead on arrival at 6:30. The cause of death was later determined to be coronary occlusion.

The application of the prudent nurse test to the conduct of the nurse in the case at bar indicates graphically the capriciousness of the Board's finding that proper medical care was given to Baur.

1. The nurse had no right to diagnose the case. Diagnosis is the exclusive province of doctors. Yet this nurse proceeded to diagnose Baur's illness as the continuance of a virus condition. The nurse in charge of the dispensary was not an inexperienced nurse. He became a registered nurse in 1928. He was aware of the fact that a nurse does not have the right to diagnose. "Q. When you were dealing with Mr. Baur in the first aid room and before 4:15 and about 6 or 6:15 when he left, did you take into consideration the possibility that Mr. Baur might have had heart trouble of some sort? A. I believe anyone may think so, but I am not in any position to diagnosis."

2. A reasonably prudent nurse would have considered it necessary to have a doctor prescribe for Baur. Allowing him to be on the cot was certainly not prescribed treatment for a serious condition. The

[ 405 Pa. Page 622]

    increased severity of the chest pains, the excessive perspiration, vomiting, two bowel movements, and obvious distress required a doctor to prescribe medication. Only when Baur asked for something to settle his stomach, after vomiting again, was any attention paid to him. He was given a teaspoon of citrus carbonate. No effort was made to call Baur's own physician, or the plant physician. Had a physician examined Baur the seriousness of his condition would have resulted in a proper diagnosis of heart involvement. Appropriate treatment - morphine and oxygen - would have been given.

3. Failure on the part of the nurse to recognize that Baur was getting worse was gross incompetence.

It was the opinion of the nurse that Baur had "gotten over his initial shock." The testimony of Widock established that he was much worse than when he had seen him originally. The pain was greater, his color worse, he looked beat, he was perspiring profusely, he was less agile. His condition was so much worse that Widock called his wife to have a doctor at the house when Baur arrived by car. The layman knew a doctor was needed. The nurse did not.

The cab driver, Swan, described Baur's dark grey color and bloodshot eyes and his complaint of severe chest pains. The nurse should have noted what laymen could see.

4. Failure to recognize that severe chest pains, vomiting, chills and perspiration indicated a heart involvement which required prompt treatment by a physician was not the act of a reasonably prudent nurse.

5. Failure to recognize the danger of sending Baur home in a cab instead of by ambulance to a hospital with oxygen administered en route was not the act of a reasonably prudent nurse.

[ 405 Pa. Page 623]

The nurse attempted to justify his failure to grasp the seriousness of the case - chest pains and vomiting are symptoms of coronary occlusion - by stressing the fact that Baur had told him of a prior virus condition "... I more or less took it for granted that maybe he still had a virus."

It was the opinion of the medical expert, Dr. Wendell Gordon, a noted cardiologist, that the symptoms of chest pains, chills and vomiting should have alerted the nurse to the serious condition of Baur. They are clear signs of heart involvement, such as coronary occlusion.

The dispensary records do not lend credence to the nurse's testimony. The only notation made on Baur's card by the nurse is "Stomach pains, diarrhea, nausea, cold sweat."

There are significant omissions. (1) There is no notation on Baur's card of a prior virus, the condition relied upon by the nurse in misdiagnosing the case. (2) The fact of a prior virus was not stated in the nurse's written report to the Coroner. (3) There is no notation of chest pains on the card. The nurse admitted at the hearing he was told of chest pains. Chest pains when on deep breathing was included in the nurse's written statement to the Coroner, but not on Baur's dispensary record.

When pressed, the nurse gave no reason for failing to make these significant notations on Baur's card in the dispensary.

No reasonably prudent nurse would have kept such inaccurate records. They do not indicate the serious chest pains that brought Baur to the dispensary, the increased severity of the pain while Baur was there for two hours, his change of color and bloodshot eyes, and deterioration. A layman, Widock, noted the worsened ...

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