Carroll v. Kittle

• Decision Date: 17 July 1969
• Docket Number: No. 45408,45408
• Citation: 203 Kan. 841,457 P.2d 21
• Parties: Wayne C. CARROLL, Appellant, v. C. Frederick KITTLE et al., Appellees.
• Court: Kansas Supreme Court

Page 21

457 P.2d 21

203 Kan. 841

Wayne C. CARROLL, Appellant, v. C. Frederick KITTLE et al., Appellees.

No. 45408.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. Under our form of government the legal sovereignty is the people, and the people, in the exercise of their governmental power through the states, did not wish to be sued and harassed in carrying out their governmental functions, hence the doctrine of governmental immunity in this country.

2. Counties, municipalities and the Board of Regents are governmental agencies created by the legislature and in some fields perform similar functions-e. g., operating hospitals-and should be held to the same responsibility for torts when engaged in a private or proprietary function.

3. The governmental immunity doctrine has judicial origin in this state as our constitution does not touch on the subject and the legislature has not enacted comprehensive legislation designed to cover the field. It is, therefore, appropriate for this court to abolish governmental immunity for torts, when the state or its governmental agencies are engaged in proprietary activities, thus keeping pace with our social and economic changes.

4. We recognize the authority of the legislature to control the entire field of governmental immunity including matters covered by judicial decisions.

5. The rule of stare decisis, although a subject for great respect, does not require the perpetuation of a doctrine which is no longer applicable because of changes in economic and social conditions, and when the reason for a rule no longer exists the rule itself should be abandoned.

6. Abrogation of the doctrine of governmental immunity encompassed by this opinion applies to all governmental bodies of the state when engaged in proprietary activities as distinguished from governmental activities.

7. A governmental agency is engaged in a proprietary activity when it embarks on an enterprise which is commercial in character or is usually carried on by private individuals, of is for the profit, benefit or advantage of the governmental unit conducting the activity.

8. Under the facts as stated in the opinion, the Board of Regents was operating the hospital at the University of Kansas Medical Center in a proprietary capacity.

9. Reason suggests that a negligently injured patient who pays for professional services in a hospital operated by a governmental agency ought to be entitled to the same protection and the same redress as if the negligence had occurred in a privately owned and operated hospital. (McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73 and all cases holding contrary to what is decided herein are overruled.)

10. This court may restrict the application of a newly established rule to the instant case, and cases arising in the future, without offending constitutional principles where it is clear that the retrospective application of the new rule will result in a hardship to those who have relied upon the prior decisions of the court.

John E. Shamberg, Kansas City, argued the cause, and Charles S. Schnider, Jacob F. May, Jr., and Gerald T. Elliott, Kansas City, and Eugene L. Smith and Harold K. Greenleaf, Jr., Liberal, were with him on the brief, for appellant.

J. Richard Foth, Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., and Paul E. Artzer, Asst. Atty. Gen., were with him on the brief, for appellees.

HATCHER, Commissioner:

This is an action against the members of the Board of Regents of the State of Kansas, and others not involved in this appeal, for damages for personal injuries sustained by plaintiff while hospitalized at the University of Kansas Medical Center.

As the petition was dismissed as to the members of the State Board of Regents, on their motion, for failure to state a claim on which relief could be granted, the facts must be gleaned from the allegations of the petition and the plaintiff's deposition of John Howard Feldman, assistant to the provost, the administrative officer of the Medical Center.

Plaintiff, a 51 year old oil field worker of Great Bend, Kansas, caught his left arm in a drilling rig on November 19, 1964, severely injuring it. He was rushed to the University of Kansas Medical Center where a team of doctors replanted the partially severed arm which remained viable and the plaintiff's recovery was progressing satisfactorily post operatively.

In the early morning of November 27, 1964, the eighth day after surgery, plaintiff was still hospitalized. Due to the effects of the medicine, drugs or other treatment given plaintiff and as a result of a changed mental condition caused by the effects of his injury and the natural effects resulting therefrom, appellant was rendered confused, mentally disoriented and out of contact with his surroundings. While in this confused state he ripped off the heavy bandages and splints from the injured arm. The night resident surgeon on duty rewrapped the arm and replaced the splints.

The above incident was known to the defendants since it was officially recorded and noted in the hospital record chart of plaintiff. Nevertheless, the defendants took no action or precaution and did nothing to place a watch over the plaintiff to protect him, or prevent him from reinjuring himself. Approximately 48 hours later at 12:45 A.M. on November 29, 1964, the patient was discovered sitting on the edge of his bed having again ripped off all of the bandages and this time tearing open the repaired arm causing the wound to be reopened. The damage done was so extensive that the arm had to be amputated.

It is alleged that the self-inflicted injury resulting in the loss of plaintiff's arm was directly and proximately caused by the negligence and carelessness of the defendants, their agents, servants and employees who joined and concurred to cause his injuries.

Plaintiff was a private patient occupying a single room and paying the full rate-$22.00 per day in 1964. His employer's insurance carrier, Royal Globe Insurance Company, paid the University of Kansas Medical Center $1,567.25 for his hospitalization for the period. This did not include the doctors' bills.

The University of Kansas Medical Center is a general hospital offering a highly and specially trained service to the public, including private, semi-private, charity and semi-charity patients. The defendant Kittle, plaintiff's doctor, was not only a staff physician at the University of Kansas Medical Center but conducted a private practice there treating private patients. All of the hospital facilities, personnel, nurses, residents, interns, medical students and other staff personnel were made available to Dr. Kittle in performing his duties as a private practitioner and as a staff member of the Medical Center in the care and treatment of his private patients.

At all times mentioned the defendant Kittle was acting as the agent, servant and employee of the University of Kansas Medical Center within the scope of his authority and he, with the aid of his assistants, was in charge of the care of plaintiff and handled the treatment for the repair of his injured arm.

Pursuant to a resolution passed by the Board of Regents on November 9, 1956, a method was set up for compensating the staff doctors, including plaintiff's doctor, which permitted them to engage in the private practice of medicine at the University of Kansas Medical Center. The plan provided that the fees from the private practice of medicine would be collected by the individual doctor. He would remit seven percent of his fees over $2,500.00 to the Medical Center for general budget use and, in addition, he would make a 'voluntary contribution' of eleven percent to a department development fund.

On April 27, 1961, the methos of compensating the clinical faculty members was amended slightly but the amendment is not material here.

John Feldman, controller and assistant to the administrative head of the Medical Center was deposed by plaintiff. He testified in substance:

The sums paid by the doctors to the Medical Center, as provided in the Board of Regents' minutes, represented compensation to the University for the use of space and certain personnel. Certain hospital personnel would perform secretarial, clinical and clerical work for the doctors both in their capacity as teachers and in connection with their activities as private practitioners. For the most part, the salaries of these clerical personnel were paid by the state.

As of June 20, 1965, the close of the fiscal year which included the period during which plaintiff was at the Medical Center, the balance sheet of the Medical Center reflects that the plant facilities represented an investment of $30,706,732.90. During the fiscal year ending June 30, 1965, care and hospitalization of patients accounted for income of $5,444,733.30 and other services produced $528,228.02, for a total revenue from sources other than appropriations, grants and gifts of approximately $6,000,000.00. In addition, by making the hospital and its facilities available to the doctors for private patients, services of 97 doctor professors were obtained for the nominal sum of $3,600.00 per year. This figure does not include interns or resident physicians.

In 1964, the Medical Center admitted 18,674 patients. Of this number 9,700 were private paying patients.

Count one of the petition was based on negligence. Count two of the petition was in the nature of an action on an implied contract.

As previously indicated, the members of the Board of Regents filed a motion to dismiss stating as their grounds that the court lacked jurisdiction of the subject matter and of the persons, and that the petition fails to state a claim on which relief could be granted against the defendants, the members of the Board of Regents. The motion stated:

'In support of this motion defendants show that the immunity of the State Board of Regents was established in McCoy v....