Grant v. Touro Infirmary

• Decision Date: 05 May 1969
• Docket Number: 49201,Nos. 49185,s. 49185
• Citation: 254 La. 204,223 So.2d 148
• Parties: Mrs. Monty TYLER, wife of John F. GRANT v. TOURO INFIRMARY, New Amsterdam Casualty Company and Hardware Mutual CasualtyCompany (two cases).
• Court: Louisiana Supreme Court

Page 148

223 So.2d 148

254 La. 204

Mrs. Monty TYLER, wife of John F. GRANT v. TOURO INFIRMARY, New Amsterdam Casualty Company and Hardware Mutual CasualtyCompany (two cases).

Nos. 49185, 49201.

Supreme Court of Louisiana.

May 5, 1969.

Rehearings Denied June 9, 1969.

Robert E. Leake, Jr., of Hammett, Leake & Hammett, Frank J. D'Amico, New Orleans, for defendant-applicant.

Lemle, Kelleher, Hohlmeyer, Matthews & Schumacher, Carl J. Schumacher, Jr., David L. Campbell, Dando B. Cellini, Walter M. Barnett, Moise S. Steeg, Jr., Morris Wright, Stephen B. Lemann, Leonard B. Levy, New Orleans, for defendants-respondents.

CONSOLIDATED

McCALEB, Justice.

Mrs. Monty Tyler Grant underwent abdominal surgery at Touro Infirmary in New Orleans on January 2, 1962. A gauze sponge was left in Mrs. Grant which was surgically removed on August 31, 1962. Mr. and Mrs. Grant then filed this suit for damages against Touro Infirmary and its insurer, Hardware Mutual Casualty Company (hereinafter referred to as Hardware), and also against New Amsterdam Casualty Company (hereinafter referred to as Amsterdam), the liability insurer of the operating surgeon, Dr. Abe Golden, who was not joined as a party-defendant.

Hardware denied the policy it issued to Touro Infirmary provided coverage for plaintiffs' claims and refused to defend Touro in the suit.

Touro answered, pleading that it is a charitable institution and, therefore, immune from liability in matters such as this. It also pleaded that Dr. Golden, a competent and qualified surgeon, had been in sole charge of the operation; and that, during the operation, its nurses, and all other hospital personnel assisting him, were under Dr. Golden's sole direction and became his servants and agents.

Amsterdam admitted it had issued a liability policy to Dr. Golden but, denying any fault on his part and averring that he is highly competent, prayed for dismissal of the suit.

Hardware filed an exception of no cause of action and moved for a summary judgment, averring that the policy issued to Touro contained an exclusion of liability clause wherever claim was made based on a charge of fault in the rendering of medical, surgical or nursing services. ¹

Additionally, Touro filed third-party demands against Hardware and Amsterdam. The third-party demand against Hardware claimed, among other things, compensation for the costs, including attorney's fees, for its defense of the suit. Hardware filed third-party demands against Dr. Golden and his insurer, Amsterdam; and the latter filed third-party demands against Touro and Hardware.

The case was tried by a jury which returned a verdict in favor of plaintiffs against all defendants, Touro, Amsterdam and Hardware, in solido, in the sum of $18,000, and they appealed. The Court of Appeal, Fourth Circuit, (with one judge dissenting in part) reversed the judgment in favor of plaintiffs, insofar as it ran against Touro and Amsterdam and, insofar as it dismissed the third-party claim of Touro against Hardware. The judgment in plaintiffs' favor was affirmed against Hardware, and there was judgment in favor of Touro on its third-party demand against Hardware in the sum of $6,000. See Grant v. Touro Infirmary, La.App., 207 So.2d 235, 244.

Plaintiffs made application for certiorari, alleging that the verdict of the jury and judgment of the trial court was correct and that the Court of Appeal erred in reversing the judgment in part. Hardware also applied for certiorari, asserting that the Court of Appeal erred in holding (1) that it insured Touro against errors of the surgical nurses in carrying out the sponge counts as part of a surgical procedure; (2) that it erred in holding that Dr. Golden was not negligent in leaving a surgical sponge in Mrs. Grant's body; (3) that it erred in holding that Dr. Golden is not legally responsibile for the improper sponge count by the surgical nurses; and (4) that it erred in awarding attorney's fees of $6,000 to Touro. Both applications were granted and the case has been argued and submitted for our decision.

Imprimis, we notice that plaintiffs and Amsterdam are complaining that the Court of Appeal erred in holding that Touro is a charitable, nonprofit institution and, hence, immune from liability for the negligence of its nursing personnel. Counsel for Amsterdam have devoted much space in their brief to this argument, insisting that the doctrine of charitable immunity has outlived its usefulness and that 'the public policy considerations which motivated its creation have long since disappeared.'

Although the record shows that the total income of Touro for the year 1962 far exceeded the actual cash value of the charitable services it rendered, there can be no doubt that Touro is a charitable institution within the legally accepted meaning of that term, as it is not operated to make profit but solely to heal the sick and relieve suffering without hope or purpose of getting gain from the services it dispenses.

Ever since 1854 when Touro was founded as a nonprofit corporation for charitable purposes it has operated as such throughout the succeeding years. Touro was recognized in 1922 as an eleemosynary hospital entitled to assert the doctrine of charitable immunity in Jordan v. Touro Infirmary, La.App., 123 So. 726. Its status has not changed in any respect, ² it being shown that it receives operating and capital funds from the United Fund, Jewish Welfare Fund, City of New Orleans, Federal Government, its medical staff and board of managers and private donations from the community at large. Mr. Walter M. Barnett, President of Touro in 1962, testified that the revenue secured from pay patients is devoted to the care of the indigent and part pay patients.

This Court has in the past inferentially, if not directly, by the refusal of certiorari, sanctioned the doctrine of charitable immunity from tort liability in many cases. See Thibodaux v. Sisters of Charity of Incarnate Word, 11 La.App. 423, 123 So. 466; Jordan v. Touro Infirmary, supra; Messina v. Societe Francaise de Bienfaissance, La.App., 170 So. 801; Jurjevich v. Hotel Dieu, La.App., 11 So.2d 632; D'Antoni v. Sara Mayo Hospital, La.App., 144 So.2d 643; Humphreys v. McComiskey, La.App., 159 So.2d 380; Danks v. Maher, La.App., 177 So.2d 412; and Hill v. Eye, Ear, Nose and Throat Hospita, La.App., 200 So.2d 34.

While the doctrine of charitable immunity has been subjected to criticism in decisions of some states and also by legal text writers, we are not disposed at this time to alter the jurisprudence of our appellate courts on this subject, particularly in view of the fact that the doctrine, as approved by the appellate courts, is of a most restricted nature. It has been held to apply only to beneficiaries of the charity (which includes paying patients), but not to a third-party stranger (see Bougon v. Volunteers of America, 151 So. 797, La.App.Orl.1934); it does not apply when corporate negligence can be proven, that is, if it is shown that the institution was negligent in the selection of its employees (see authorities above cited and also 15 Am.Jur.2d, Charities, Sec. 160, p. 171); and the immunity may not be urged as a defense by the liability insurer of the charity, such defense being personal to the charity itself (Idem).

In view of the above cited jurisprudence, which has been applied and reiterated by our appellate courts for many years, and considering the limited nature of the immunity granted, we are of the opinion that, if any change is to be effected in the law, it should be made by the legislative and not the judicial department.

The primary complaint of Hardware is that the Court of Appeal erred in concluding that its policy insured Touro against errors by surgical nurses in carrying out sponge counts as part of a surgical procedure. In support of this contention, Hardware's counsel point to an endorsement contained in its general liability policy, denominated 'EXCLUSION OF MALPRACTICE AND PROFESSIONAL SERVICES', providing in part that the policy does not apply to injury, et cetera, due to:

'A. The Rendering Of Or Failure To Render

1) Medical, surgical * * * or nursing service or treatment; * * *

2) Any service or treatment conducive to health or of a professional nature; * * *

B. The Furnishing Or Dispensing Of * * * Surgical Supplies Or Appliances; * * *'

Counsel contend that the making of sponge counts before and during an operation is a service of a professional nature, the rendition of nursing services and the furnishing or dispensing of surgical supplies.

The Court of Appeal held that the counting of sponges prior to and following an operation is not a service of a professional nature but merely administrative in character and the performance of an act which required neither special training nor the exercise of professional judgment. To buttress this finding the court relied upon its prior decision in Danks v. Maher, 177 So.2d 412 (1965), where the court, after citing Jordan v. Touro Infirmary, supra, and D'Antoni v. Sara Mayo Hospital, La.App., 144 So.2d 643, quoted from the concurring opinion in Messina v. Societe Francaise de Bienfaissance, La.App., 170 So. 801, 806, and declared:

'In our opinion the counting of laparotomy squares in the instant case was not an act requiring the exercise of a particular skill or discretion acquired or developed by special training. It was an act which could have been done by an unskilled or untrained employee and it did not involve the exercise of any professional judgment. We conclude that the incorrect count was not a medical mistake; it was an administrative or nonprofessional mistake from which liability on the part of the hospital can result.'

Adverting to certain evidence in the record given by the nurses involved, to the effect that when they were undergoing training at the hospital they were given instruction relative to sponge counts and that this was part of the course in operating...