Douglass v. Florence General Hospital

• Decision Date: 10 October 1979
• Docket Number: No. 21065,21065
• Court: South Carolina Supreme Court
• Parties: Virginia Elaine DOUGLASS, Appellant, v. FLORENCE GENERAL HOSPITAL, Respondent.

Page 117

259 S.E.2d 117

273 S.C. 716

Virginia Elaine DOUGLASS, Appellant, v. FLORENCE GENERAL HOSPITAL, Respondent.

No. 21065.

Supreme Court of South Carolina.

Oct. 10, 1979.

Harold W. Jacobs and Charles Molony Condon, both of Nexsen, Pruet, Jacobs & Pollard, Columbia, for appellant.

Saunders M. Bridges, Jr. of Bridges, Bridges & Orr, Florence, for respondent.

GREGORY, Justice:

Appellant Virginia Elaine Douglass brought this action against respondent Florence General Hospital (Hospital) seeking actual and punitive damages for personal injuries she sustained while a patient in the Hospital. This appeal is from the order of the lower court dismissing the complaint on the ground the Hospital is protected by charitable immunity.

On or about December 4, 1974, appellant was admitted to the Hospital as a patient for the treatment of pancreatitis. An employee of the Hospital gave her an injection in her right buttock, but improperly inserted the needle directly into the sciatic nerve allegedly causing appellant to suffer excruciating pain, paralysis, and permanent disability to her right leg. This action was initiated by appellant against the Hospital for actual and punitive damages in April 1976. At all times relevant to this action the Hospital had in force a comprehensive policy of hospital insurance.

The complaint sets forth three causes of action. First, the complaint alleges a cause of action for gross negligence and recklessness. Second, the complaint alleges an intentional tort consisting of an assault and battery arising from the performance of the injection without informed consent. Third, the complaint alleges a cause of action based on the breach of an implied warranty.

The Hospital answered the complaint and asserted the doctrine of charitable immunity by way of an affirmative defense. Appellant moved to strike the defense of charitable immunity, and the Hospital moved to dismiss the complaint on the ground the action was barred by charitable immunity. By order dated September 25, 1978 the lower court denied appellant's motion to strike, and granted the Hospital's motion to dismiss the complaint. This appeal followed.

In Brown v. Anderson County Hospital Association, 268 S.C. 479, 234 S.E.2d 873 (1977) the majority opinion of this Court recently held that charitable hospitals are liable for their heedless and reckless torts:

We . . . hold that anyone injured through tortious acts of commission or omission of the agents, servants, employees or officers of a charitable hospital in this State may recover damages against such hospital, if the aggrieved party can establish that the injuries occurred because of the hospital's heedlessness and reckless disregard of the plaintiff's rights. 234 S.E.2d at 876-877.

One month after the opinion in Brown was filed, the Governor signed into law Act No. 182 of the 1977 Acts of the General Assembly. The portion of Section 3 of Act No. 182 of 1977 that is pertinent to this opinion reads as follows:

The doctrines of charitable and sovereign immunity as they relate to hospitals and other medical facilities in this State are hereby modified to the extent that any person sustaining an injury or dying by reason of the tortious act of commission or omission of agents, servants, employees or officers of a charitable hospital or medical facility or of a hospital or other medical facility operated or funded by the State, its agencies, departments, institutions, commissions, boards or political subdivisions may recover in any action brought against such hospital or other medical facility for such actual damages as he may sustain a sum not exceeding one hundred thousand dollars.

The above quoted portion of Section 3 Act No. 182 of 1977 is presently codified as a portion of Section 44-7-50, 1978 Cum. Supp.

Appellant initiated this action prior to both the filing of Brown and the enactment of Section 44-7-50. ¹ This appeal does not challenge the correctness of the majority opinion in Brown, but is aimed solely at securing the retroactive application of either Brown or Section 44-7-50, or both.

The lower court found that Section 44-7-50 operates prospectively only, and quoted extensively from our recent decision in Hyder v. Jones, 271 S.C. 85, 245 S.E.2d 123 (1978) as supportive of that finding. We are of the view that the reasoning expressed in Hyder disposes of this issue without the need for further consideration in this opinion and we hold that the lower court correctly found that Section 44-7-50 operates prospectively only. See also Teague v. Cherokee County Memorial Hospital, S.C., 252 S.E.2d 296 (1979).

The lower court also found that Brown operated prospectively only. This finding was based on the following portion of the majority opinion in Brown We are aware that hospitals in this State have acted in reliance upon the old rule of charitable immunity and may not have taken steps to protect themselves with adequate liability insurance. Therefore, we follow the procedure of other states, such as North Carolina, and hold that The modification of the doctrine of charitable immunity, as set forth in this opinion, applies only to this case and to those causes of action arising after the filing of this opinion, May 10, 1977. See Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 152 S.E.2d 485 (1967). 234 S.E.2d at 877. (Emphasis added).

Appellant argues that the condition upon which Brown was made applicable only to cases arising after May 10, 1977 is not met in this case because the Hospital was protected by adequate liability insurance at the time of her injury.

In Decker v. Bishop of Charleston, 247 S.C. 317, 147 S.E.2d 264 (1966) we held "that the procurement by a charitable organization of...