Fournier v. Miriam Hospital

• Decision Date: 14 November 1961
• Docket Number: Nos. 10226,10228,s. 10226
• Citation: 93 R.I. 299,175 A.2d 298
• Parties: Laurette FOURNIER v. MIRIAM HOSPITAL. Joseph E. A. FOURNIER v. MIRIAM HOSPITAL. Ex.
• Court: Rhode Island Supreme Court

Page 298

175 A.2d 298

93 R.I. 299

Laurette FOURNIER v. MIRIAM HOSPITAL.

Joseph E. A. FOURNIER v. MIRIAM HOSPITAL.

Ex. Nos. 10226, 10228.

Supreme Court of Rhode Island.

Nov. 14, 1961.

On Motion for Reargument Nov. 28, 1961.

William G. Gilroy, Johnston, Gerald A. Oster, Lincoln, Edward L. Gnys, Jr., Providence, for plaintiffs.

Sherwood & Clifford, Raymond E. Jordan, Kirk Hanson, E. Howland Bowen, Providence, for defendant.

POWERS, Justice.

These two actions of trespass on the case for negligence were brought in the superior court by a husband and wife for injuries to the latter allegedly resulting from the negligence of the defendant's servants and agents. In each case the defendant answered by way of a general denial and pleaded specially the immunity of G.L.1956, § 7-1-22, to which special pleas the plaintiffs demurred. The cases are before us on their bills of exceptions to the overruling of their demurrers.

Since the issue is the same in each case we shall treat the bills of exceptions as though there were but one, that of the plaintiff wife, our decision therein, however, being dispositive of both.

It appears from the record that plaintiff was treated at the defendant hospital for a cancerous condition. There were a series of such treatments consisting of X-ray therapy, so called, administered by its servants and agents using apparatus which was the property of or in the control of the hospital.

The declaration alleges in substance that by reason of negligence or a lack of skill on the part of defendant's agents and servants, plaintiff suffered a radiation ulcer in the left chest and eventual amputation of the left arm at the shoulder.

In addition to a general denial, defendant pleaded specially the provisions of G.L.1956, § 7-1-22, which read as follows:

'No hospital incorporated by the general assembly of this state sustained in whole or in part by charitable contributions or endowments, or the Notre Dame Hospital, incorporated under chapter 1925 of the public laws, 1920, so long as it continues to be sustained in whole or in part by charitable contributions or endowments, shall be liable for the neglect, carelessness, want of skill or for the malicious act, of any of its officers, agents or employees in the management of, or for the care or treatment of, any of the patients or inmates of such hospital; but nothing herein contained shall be so construed as to impair any remedy under existing laws which any person may have against any officer, agent or employee of any such hospital for any wrongful act or omission in the course of his official conduct or employment.'

To this plea plaintiff demurred on the ground that the statute relied on is unconstitutional in that it violates article I, § 5, of the constitution of this state and art. XIV, § 1, of amendments to the constitution of the United States.

Article I, § 5, provides:

'Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely and without purchase, completely and without denial; promptly and without delay; comformably to the laws.'

Before considering plaintiff's contention that § 7-1-22 is unconstitutional it will be helpful to review the pertinent rule of law prevailing in this state prior to the enactment of that statute.

In Glavin v. Rhode Island Hospital, 12 R.I. 411 (1879), the plaintiff suffered the severance of two fingers at his place of employment. As immediate medical attention was required, he was taken to the Rhode Island Hospital, where its superintendent 'committed [him] to the care of the surgical interne.' The interne undertook to dress the wound, but a profuse hemorrhage occurred. He then repeatedly, but unsuccessfully, attempted to arrest the hemorrhage by ligating the arteries. Failing in this, he applied a tourniquet 'so tightly as to stop circulation, and kept it applied for nearly seventeen hours, before the arrival of a surgeon who was skilful enough to' perform the operation. The plaintiff suffered intense pain and the arm became greatly swollen and gangrenous, necessitating amputation just below the shoulder joint.

The rules of the defendant hospital provided, 'in all cases, whether medical or surgical, requiring immediate and important action, or whenever there is any doubt as to the proper treatment, and in all cases of accident requiring immediate operation, the house physician or house surgeon shall send for the visiting physician or surgeon of the day, as the case may be, either medical or surgical, and if he cannot be found, then for any one of the visiting physicians or surgeons of the hospital * * *.' Id. at 413.

It appears that the Rhode Island Hospital was incorporated as a nonprofitable, charitable institution. Glavin received and subsequently paid a bill of $21.71 which was for 'board, washing, warmth, and the services of nurses and ward tenders.'

At the conclusion of testimony therein the trial justice, relying on the authority of McDonald v. Massachusetts General Hospital, 120 Mass. 432, instructed the jury that there was no testimony which would support a verdict for the plaintiff and directed them to return a verdict for the defendant. This court in reviewing the trial justice's instruction to the jury observed that the Massachusetts case was decided on the ground that there was no evidence of a want of care on the part of the Massachusetts hospital in selecting its agent or servant, but observed further that the Massachusetts supreme court had strongly intimated that no recovery could have been had, if such lack of care had been shown, for the reason that any 'judgment recovered against the corporation could only be satisfied out of funds which, being dedicated to the charity, could not be lawfully used to pay it.'

The court questioned the dicta in the McDonald case, noting in a review of subsequent authorities that the doctrine had been rejected by most courts and taking special notice of the fact that the English case, Holliday v. St. Leonard, 11 C.B.N.S. 192, had been subsequently repudiated in Mersey Docks v. Gibbs, 11 H.L. 686.

It then proceeded to hold that a charitable corporation could be held responsible for the neglect of its agents or servants where, as in the Glavin case, the hospital had assumed responsibility for providing its patients with medical care, and the agents or servants through whom it acted failed to exercise due care in meeting the hospital's responsibility.

After the Glavin case, the general assembly in 1896 enacted the statute on which defendant in the case at bar relies. The plaintiff contends it is in violation of her constitutional rights and that art. I, § 5, is a prohibition against legislative deprivation or abridgment of a vested right derived from the common law. She argues that in the Glavin case this court recognized the common-law rule applicable in the instant case, hence the legislative attempt to grant immunity is in derogation of her rights at common law and is unconstitutional.

The defendant, however, argues that art. I, § 5, is a prohibition against the sale of justice and has in effect been so construed by this court on three occasions, namely, In the Matter of Nichols, 8 R.I. 50, Perce v. Hallett, 13 R.I. 363, and Narragansett Electric Lighting Co. v. Sabre, 50 R.I. 288, 146 A. 777. It has called to our attention the distinction established by legislation in a number of states, whereby the doctrine of due care has been supplanted by a requirement of gross negligence as a prerequisite to recovery by guest passengers, so called. The right of the legislature to make such a distinction in derogation of the common-law rule was challenged in Pickett v. Matthews, 238 Ala. 542, 192 So. 261, where a provision of that state's constitution similar to art. I, § 5, was the basis for the contention which the plaintiff makes here. The Alabama court stated at page 545, 192 So. at page 263, 'But this provision does not undertake to preserve existing duties against legislative change made before the breach occurs. There can be no legal claim for damages to the person or...