Fisher v. Ohio Valley General Hospital Ass'n

• Decision Date: 22 December 1952
• Docket Number: No. 794,794
• Citation: 137 W.Va. 723,73 S.E.2d 667
• Court: West Virginia Supreme Court
• Parties: FISHER, v. OHIO VALLEY GENERAL HOSPITAL ASS'N. C. C.

Page 667

73 S.E.2d 667

137 W.Va. 723

FISHER, v. OHIO VALLEY GENERAL HOSPITAL ASS'N.

C. C. No. 794.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1952.

Decided Dec. 22, 1952.

Syllabus by the Court.

1. A charitable hospital is not liable to a paying patient for the negligent acts of its servants, agents and employees in the absence of negligence in the selection and retention of such servants, agents and employees.

2. The immunity from suit granted to a charitable hospital in certain circumstances is not affected by the fact that such hospital is covered by liability insurance.

Goshorn & Goshorn, John L. Goshorn and D. J. Savage, Charleston, for plaintiff.

O'Brien & O'Brien, Wheeling, for defendant.

BROWNING, Judge.

This action of trespass on the case was instituted by Olive L. Fisher in the Circuit Court of Ohio County, on August 7, 1951, against the Ohio Valley General Hospital Association. The declaration consisted of two counts, the first count alleging that the defendant was the operator of a hospital; that while the defendant was so operating such hospital, the plaintiff's physician caused her to be entered as a paying patient at the said hospital for treatment, and that it then and there became the duty of the defendant to take due and proper care of the plaintiff in the treatment of her illness; but, that, the defendant, disregarding its duties in that behalf, did so unskillfully and negligently conduct itself by and through its servants, that plaintiff, in the course of her treatment, was allowed to fall to the floor of the hospital and sustain serious injuries.

The second count of the declaration is substantially similar to the first count except that it alleges the duty of the defendant to use reasonable care in the selection and retention of its servants, agents and employees, and especially one Phyllis A. Bahanna, a nurse's aid, whose negligence it was alleged caused the plaintiff's injury; the negligent breach of that duty and the consequent injury to the plaintiff.

The defendant filed its special plea to the declaration in which it alleges that it is a nonstock, nonprofit association; that, by reason of its charitable work it has, at all times, operated at a loss; that its deficits are made up or offset by charitable donations, and that, while not admitting any negligence, it has no funds out of which any judgment in this action could be paid except those funds which are administered by it as a charitable trust.

The plea further alleges that the defendant used reasonable care in the selection and retention of its agents and employees to whose care plaintiff, as a paying patient, was committed at the time she sustained the injuries alleged.

The plaintiff filed a demurrer to the defendant's special plea on the ground that a charitable hospital corporation is liable for the torts of its agents and employees in the same manner as a corporation organized for profit, and filed a special replication in which she alleges that the defendant carried liability insurance out of which a judgment could be paid.

The defendant demurred to plaintiff's special replication, assigning four separate grounds, the substance of which is to the effect that the coverage afforded by a liability insurance policy does not create liability in instances such as this, where the policyholder is immune from liability by reason of its charitable nature, and moved to strike plaintiff's special replication from the record.

The trial court overruled plaintiff's demurrer to defendant's special plea, sustained defendant's demurrer to plaintiff's special replication, granted defendant's motion to strike plaintiff's special replication, and, upon its own motion, certified the following questions to this Court:

(1) Whether a charitable hospital is liable to a paying patient for negligence of its servants, agents and employees in the same manner as a corporation organized for profit?

(2) Assuming that said charitable hospital organization is immune from liability for the negligence of its servants, agents and employees, where reasonable care was used by said organization in the selection, training and retention of said servants, agents and employees, nevertheless, does the fact that said charitable hospital carried liability insurance create liability where, under the assumption, none existed before?

The trial court answered both of these questions in the negative.

There is a wide divergence of opinion among the variance states upon the subject of liability of a charitable hospital to its patients for negligent injuries by its servants, agents and employees. At one extreme, we find the doctrine laid down in the states of Massachusetts and Illinois which hold that a charitable hospital is immune from liability for the negligent act of its servants, agents and employees, whether directed toward a patient of the hospital or a stranger at a place remote from the institution. Foley v. Wesson Memorial Hospital, 246 Mass. 363, 141 N.E. 113, and Simon v. Pelouze, 263 Ill.App. 177.

We find on the other hand that at least two states have gone to the opposite extreme and have completely repudiated the doctrine of the immunity of charitable hospitals, and place them in the same category as private institutions operating for profit. The majority of the states, however, with some qualifications, have adopted a middle view and exempt the charity from liability as to beneficiaries, though imposing liability in the case of strangers. The many theories upon which the courts have upheld the immunity of charitable hospitals from suits by beneficiaries may be generally summarized and enumerated as follows:

First: The trust fund doctrine based upon the theory that if funds from the trust could be used to compensate persons for the negligence of the servants, agents and employees of the charitable organization, the trust fund would be diverted to purposes never intended by the donor, and the charitable purposes of the creators of the trust frustrated. It was upon this theory that the nonliability of charitable institutions was first declared in Feoffees of Heriot's Hospital v. Ross, 12 Clark & Fin. 507, 8 English Reprint 1506. This English case was decided in 1846, but exactly twenty years later the doctrine of the Ross case was specifically overruled in Mersey Docks and Harbor Board Trustees v. Gibbs, L.R. 1, H.L. 93, 11 English Reprint 1500. The English courts have not since the decision in the latter case recognized the trust fund theory as a ground of immunity in this type of case. However, in McDonald v. Massachusetts General Hospital, 120 Mass. 432, 31 Am.Rep. 529, decided in 1876, and apparently the first American decision upon the question, the court chose to follow the Ross case rather than the Gibbs case. There have been numerous American decisions in accord with the McDonald ruling. 10 Am.Jur., Charities, § 146; 14 C.J.S., Charities, § 75; and annotations thereunder.

Second: Implied waiver. It has been stated in applying this doctrine that the charitable organization is exempt from suit on the ground that a person who accepts the benefits of a private or public charity impliedly enters into a relationship which exempts his benefactor from liability for the negligence of his servants, agents and employees for administering the charity, particularly if the benefactor has used due care in selecting those servants. In other words, there is an assumption of risk by the person who seeks and receives the services of such a charity.

Third: The inapplicability of respondeat superior to charitable organizations is based on the ground that medical attendants do not, in a true sense, assume the relationship of master and servant.

Fourth: Public policy.

There has been no attempt, nor do we consider it necessary, to cite all of the case law under each of these headings, either in support of the position or in criticism of it. For a comprehensive discussion of the subject see 10 Am.Jur., Charities, § 140 et seq., and 14 C.J.S., Charities, § 75.

This Court first passed upon this question in 1925 in the case of Roberts v. Ohio General Hospital, 98 W.Va. 476, 127 S.E. 318, 42 A.L.R. 968; 9 M.J., Charitable Hospitals, 474. In that case, the plaintiff filed a declaration for damages, alleging an injury due to the negligent and unskillful treatment of one of the defendant's nurses while the plaintiff was was at the defendant's hospital as a paying patient. The decision in that case committed this Court to the principle of conditional immunity, and held that a charitable hospital is liable to patients for injuries due to the negligence of its physicians, nurses and attendants only in instances where it has been negligent in the selection and retention of such employees. If the hospital uses reasonable care in the selection and retention of such employees, then it is immune from liability for their negligent injury to a patient of the hospital. It would appear from the language of the opinion in the Roberts case that the decision granting qualified immunity to a charitable hospital was based upon public policy. Cf. Shaffer v. Monongalia General Hospital, W.Va., 62 S.E.2d 795.

The trial court, relying upon the...