Habuda v. Trustees of Rex Hospital, Inc., 6810SC394

• Decision Date: 13 November 1968
• Docket Number: No. 6810SC394,6810SC394
• Citation: 3 N.C.App. 11,164 S.E.2d 17
• Court: North Carolina Court of Appeals
• Parties: Pauline Laurence HABUDA v. TRUSTEES OF REX HOSPITAL, INC.

Page 17

164 S.E.2d 17

3 N.C.App. 11

Pauline Laurence HABUDA v. TRUSTEES OF REX HOSPITAL, INC.

No. 6810SC394.

Court of Appeals of North Carolina.

Nov. 13, 1968.

Boyce, Lake & Burns by G. Eugene Boyce, and Nassif & Churchill, by Ellis Nassif, Raleigh, for plaintiff appellant.

Smith, Leach, Anderson & Dorsett, by Henry A. Mitchell, Jr., Raleigh, for defendant appellee.

MALLARD, Chief Justice.

We are met at the beginning of this case with the question of whether the defendant's hospital was on 13 April 1964 a charitable institution and immune from liability for acts of negligence of its agents under the qualified charity immunity rule.

The Supreme Court of North Carolina in the case of Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 152 S.E.2d 485, held:

'Convinced that the rule of charitable immunity can no longer properly be applied to hospitals, we hereby overrule Williams v. Randolph Hospital, 237 N.C. 387, 75 S.E.2d 303, Williams v. Union County Hospital Ass('n)., 234 N.C. 536, 67 S.E.2d 662, and other cases of similar import. We hold that defendant Hospital is liable for the negligence of its employees acting within the scope and course of their employment just as is any other corporate employer. Recognizing, however, that hospitals have relied upon the old rule of immunity and that they may not have adequately protected themselves with liability insurance, we follow the procedure of Michigan, Illinois, Nebraska, and Wisconsin, as detailed in the decisions previously noted. The rule of liability herein announced applies only to this case and to those causes of action arising after January 20, 1967, the filing date of this opinion.'

The 1967 General Assembly of North Carolina, recognizing that in some instances the common-law defense of charitable immunity prevailed in this state, abolished it and declared that it 'shall not constitute a valid defense to any action or cause of action arising subsequent to September 1, 1967.' G.S. § 1--539.9.

The cause of action of which the plaintiff bases her claim is alleged to have occurred in April 1964. According to the case law and statutory law, the common-law defense of charitable immunity was available to the defendant herein on a cause of action occurring in April 1964.

The Supreme Court of North Carolina has held in the case of Martin v. Board of Comrs. of Wake County, 208 N.C. 354, 180 S.E. 777 (1935), that:

'The trustees of Rex Hospital, as a corporation created by the General Assembly of North Carolina, own and maintain a hospital in the city of Raleigh, Wake County, N.C., for the medical treatment and hospital care of the indigent sick and afflicted poor of the city of Raleigh and of Wake County. This hospital is supported by donations of property and money by individuals and by the city of Raleigh and Wake County, and also by sums paid by patients who are able to pay for services rendered to them. It is a public hospital, and is maintained, primarily, as a charitable institution. See City of Raleigh v. Trustees (of Rex Hospital), 206 N.C. 485, 174 S.E. 278.' See also Rex Hospital v. Board of Comrs. of Wake County, 239 N.C. 312, 79 S.E.2d 892 (1954).

The evidence in this case tends to show that the defendant's hospital in 1964 was being operated in substantially the same manner as it was in 1954. We are of the opinion that the defendant's hospital, as operated in April 1964, when plaintiff alleges she was injured according to the evidence herein, was a public hospital maintained primarily as a charitable institution and comes within the rule of the common-law defense of charitable immunity.

This rule, with some but not all of the exceptions thereto, is set forth in 2 Strong N.C. Index 2d, Charities & Foundations, § 3, as follows:

'A person injured while enjoying the benefits provided by a charitable institution may not hold the institution liable for the negligence of its agents or employees if the institution has exercised reasonable care in their selection and retention. This rule applies even though the patron is a paying patient. * * * The fact that a charitable institution has procured insurance indemnifying it for liability does not enlarge its liability for negligence of its agents or employees. But a charitable hospital may be held liable for negligence in selecting an agent or employee.'

This rule is also stated in Rabon v. Rowan Memorial Hospital, supra. Sharp J., speaking of the law as it was at the time the cause of action arose in the present case, said:

'Decided cases indicate that the present state of the law in North Carolina is as follows: A patient, paying or nonpaying, who is injured by the negligence of an employee of a charitable hospital may recover damages from it only if it was negligent in the selection or retention of such employee, Williams v. Randolph Hospital, supra, Williams v. Union County Hospital Ass'n., supra, or perhaps if it provided defective equipment or supplies. Payne v. Garvey, 264 N.C. 593, 142 S.E.2d 159. * * * Nor does the fact that a charitable institution has procured liability insurance affect its immunity. Herndon v. Massey, 217 N.C. 610, 8 S.E.2d 914.'

The evidence, taken in the light most favorable to the plaintiff, tended to show that the plaintiff was admitted to Rex Hospital by her family physician on 10 April 1964. Her physician's diagnosis was acute lumbosacral strain. She was placed in a room on the west wing of the fourth floor. At about nine o'clock P.M. on the evening of 13 April 1964, plaintiff requested that she be given a laxative composed of milk of magnesia and cascara which her doctor had prescribed. The laxative was prepared and given to her by Sylvia Scarborough (now Sylvia Scarborough Bynum, hereinafter referred to as student nurse) who was in her final year as a nursing student at the Rex Hospital School of Nursing. This laxative had a quantity of pHisoHex in it. pHisoHex is a cleaning substance similar to soap and contains, among other ingredients, three per cent hexachlorophene. Hexachlorophene is an anti-bacterial agent or a substance to decrease the number of bacteria. The laxative given to plaintiff foamed. One of the characteristics of pHisoHex is its tendency to foam when shaken. Milk of magnesia does not foam when...