Bernardi v. Community Hospital Ass'n

• Decision Date: 15 July 1968
• Docket Number: No. 22143,22143
• Parties: Lisa Marie BERNARDI, a minor by her father and next friend, Frank D. Bernardi, and Frank D. Bernardi, Plaintiffs in Error, v. COMMUNITY HOSPITAL ASSOCIATION, a Colorado corporation, Dorothy Dravis and Charles L. Aumiller, Defendants in Error.
• Court: Colorado Supreme Court

Page 708

443 P.2d 708

166 Colo. 280

Lisa Marie BERNARDI, a minor by her father and next friend Frank D. Bernardi, and Frank D. Bernardi Plaintiffs in Error, v. COMMUNITY HOSPITAL ASSOCIATION, a Colorado corporation Dorothy Dravis and Charles L. Aumiller, Defendants in Error.

No. 22143.

Supreme Court of Colorado, En Banc.

July 15, 1968.

Rehearing Denied Aug. 6, 1968.

Richard C. Hopkins, Boulder, for plaintiffs in error.

T. Raber Taylor, Denver, for defendant in error, Community Hospital Assn Williams, Taussig & Trine, Boulder, for defendant in error, Dorothy Dravis.

Zarlengo, Mott & Carlin, Denver, for defendant in error, Charles L. Aumiller.

GROVES, Justice.

This action was brought by the plaintiffs in error, Lisa Marie Bernardi and her father, against Community Hospital Association, a Colorado corporation, Dorothy Dravis and Charles L. Aumiller. Plaintiffs in error are herein referred to as plaintiffs, and Lisa Marie Bernardi as Lisa. Reference is made to the defendants in error as follows: Community Hospital Association as the Hospital; Dorothy Dravis as the Nurse; and Charles L. Aumiller as the Doctor.

Lisa, seven years of age, was a patient in the Hospital, having been the subject of surgery for the drainage of an abscessed appendix. The Doctor was her attending physician. He had left a written post-operative order at the Hospital that Lisa was to be given an injection of tetracycline every twelve hours. During the evening of the first day following surgery, the Nurse, employed by the Hospital and acting under this order, injected the dosage of tetracycline in Lisa's right gluteal region. It was alleged in the complaint that the Nurse negligently injected the tetracycline into or adjacent to the sciatic nerve, causing Lisa to have a 'complete foot-drop' and to lose permanently the normal use of her right foot. For the purpose of this opinion the alleged negligence and resulting injury are assumed, although undoubtedly these will be issues at the trial.

The trial court granted the Doctor's motion that the complaint be dismissed for failure to state a claim upon which relief could be granted against him and granted a motion for summary judgment in favor of the Hospital.

Prior to the granting of the motion for summary judgment, the trial court made findings of fact based upon the plaintiffs' responses to the Hospital's requests for admissions. These findings include the following: That the Hospital is a nonprofit, charitable corporation; that the Hospital is controlled by a standard of the Colorado State Board of Health to the effect that no medications shall be given except on the written order (or verbal order confirmed in writing) of a qualified, Colorado-licensed physician; that the Doctor was licensed to practice medicine by the Colorado State Board of Medical Examiners and was engaged in the private practice of medicine; that the Nurse was licensed in Colorado to practice professional nursing, i.e., was an R.N., and, under the 1957 Professional Nursing Practices Act (C.R.S.1963, Chapter 97, Article 1) and rules adopted thereunder by the Colorado State Board of Nursing, she could administer a doctor-prescribed injection involving the piercing of tissue under and only under the direction of a licensed physician; that Lisa's father, in advance of the surgery, gave written authorization for operative procedure by signing a form which provided in part:

'I certify that the above procedure has been explained to me and I understand the diagnostic or treatment necessary for the operation(s). The Community Hospital, its medical staff, and the employees are hereby released from liability of the results of the procedure.'

The Hospital's motion for summary judgment was predicated on the following propositions: That the scope of the license of the Hospital did not contemplate 'the practice of medicine' nor 'the practice of professional nursing' under Colorado statutes; that the Nurse could act only under the direction of a licensed physician; that under the U.S. Food, Drug and Cosmetic Act (21 U.S.C.A. Sec. 353) the drug tetracycline was limited to 'use under the professional supervision of a practitioner licensed by law to administer such drug'; and that the Nurse was 'obeying instructions of a physician' and subserving 'him in his ministrations to the patient' when she administered the injection of tetracycline.

I.

The trial court's order granting the motion for summary judgment in favor of the Hospital refers to the complaint, answers to interrogatories, responses to requests for admissions, the 1957 Professional Nursing Practices Act, 'other pertinent statutes and decisions of the Colorado Supreme Court,' and the court's findings mentioned above. The trial court also made a specific finding in the order granting summary judgment of dismissal that the injection given Lisa 'was on the specific instruction of her attending physician which specified what medication was to be administered, to whom, how often, when and how.' The order then states:

'Upon the foregoing admitted and material facts, the Court concludes that the October 12, 1965 Motion of Defendant, Community Hospital Association, for Summary Judgment of Dismissal with Prejudice should be and is hereby granted.'

There follows the judgment of dismissal. While it is apparent that the trial court's attention was directed toward the respective relationships of the Nurse to the Hospital and to the Doctor, it did not state specifically the reason or theory underlying the judgment.

The principal argument of counsel for the plaintiffs and the Hospital are directed toward the question as to whether the doctrine of Respondeat superior should be applied to the Hospital for the act of the Nurse. We have concluded that the rule of Respondeat superior should be applied to the Hospital and to reverse so far as it is concerned. As a preface to our enunciation in this respect, it is well to review some of the decisions of this court relating to the liability of hospitals.

In St. Mary's Academy of Sisters of Loretto of City of Denver v. Solomon, 77 Colo. 463, 238 P. 22, 42 A.L.R. 964, it was held that judgment may be obtained against a charitable corporation for a tort, but that no property held in a charitable trust can be taken under execution upon the judgment.

In Brown v. St. Luke's Hospital Association, 85 Colo. 167, 274 P. 740, this court purported to follow St. Mary's Academy, although this occasions a little difficulty in reconciling this with the result in Brown, which was to affirm the trial court's dismissal of the action for the reason that all of the hospital's property was held in trust. In any event, O'Connor v. Boulder Colorado Sanitarium Association, 105 Colo. 259, 96 P.2d 835, 133 A.L.R. 819, followed St. Mary's Academy. There the sanitarium pleaded that it was a charitable corporation and the plaintiff replied that it carried liability insurance. A demurrer addressed to the replication was sustained and this court reversed, stating that the charitable institution might be liable for the tortious acts of its agents and any judgment would have to be satisfied from sources other than its trust funds, e.g., from insurance. Hemenway v. Presbyterian Hospital Ass'n, 161 Colo. 42, 419 P.2d 312, made no change in the law.

We can, therefore, assume in the instant case that the trial court did not grant summary judgment in favor of the Hospital because of its finding that it is a charitable corporation.

In Rosane v. Senger, 112 Colo. 363, 149 P.2d 372, there was involved alleged negligence by surgeons in leaving a gauze pad inside the plaintiff. This court affirmed dismissal of the action insofar as it related to the hospital involved, stating that a hospital could not be licensed to practice medicine and surgery; that the relation between doctor and patient is personal; that a hospital is powerless to command or forbid any act by staff doctors it employs in the practice of their profession; and that, unless it employs those whose lack of skill is known or should be known to it or by some special conduct or neglect makes itself responsible for their malpractice, it cannot be held liable therefor. To the same effect are Beadles v. Metayka, 135 Colo. 366, 311 P.2d 711, and Moon v Mercy Hospital, 150 Colo. 430, 373 P.2d 944. In Beadles the plaintiff, while under anesthetic and prior to commencement of surgery, fell off the operating table. It was held that the surgeon had assumed command and responsibility and that, therefore, the doctrine of Respondeat superior did not apply to the hospital with respect to any negligence on the part of the hospital orderly who was in the operating room. In Moon it was pointed out that the respective licenses to practice medicine and to operate a hospital authorize related but different activities. It was held that the employment by a hospital of doctors on its staff does not make it liable for neglect in the discharge of their professional duty, as the hospital is powerless to command or forbid any act by them in the practice of their profession, and that a licensed physician is the principal when performing medical services in a hospital.

This brings us to St. Luke's Hospital Association v. Long, 125 Colo. 25, 240 P.2d 917, 31 A.L.R.2d 1120. There, during the early morning hours of the day following a tonsilectomy and adenoidectomy, the body of a three-year-old boy slipped through the rails of his hospital bed, his head was caught, and he strangled. It was held that any negligent acts of the nurse employed by the hospital were administrative acts, as distinct from professional services, and might be the basis for liability of the hospital. While counsel for the Hospital here states in his brief that the ruling of St. Luke's Hospital was that a hospital is not responsible for acts of the nurse when performing professional services or obeying instructions of a physician, we do not so interpret the...