Jenkins v. Charleston Gen. Hosp. &

• Decision Date: 07 February 1922
• Docket Number: (No. 4391.)
• Citation: 110 S.E. 560
• Court: West Virginia Supreme Court
• Parties: JENKINS . v. CHARLESTON GENERAL HOSPITAL & TRAINING SCHOOL.

110 S.E. 560

JENKINS .

v. CHARLESTON GENERAL HOSPITAL &TRAINING SCHOOL.

(No. 4391.)

Supreme Court of Appeals of West Virginia.

Feb. 7, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action by J. R. Jenkins against the Charleston General Hospital & Training School. Verdict and judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and case remanded for new trial.

Brown, Jackson & Knight, of Charleston, for plaintiff in error.

A. A. Lilly and M. F. Matheny, both of Charleston, for defendant in error.

POFFENBARGER, P. The verdict and judgment complained of on this writ of error stand upon the hypothesis and finding of negligence on the part of the defendant, regarded as a purely private hospital conducted for profit, in the treatment of a patient, resulting in his permanent injury. The inquiry submitted goes principally to the correctness of the judgment and verdict, as determined by the law and the evidence; only slight complaint being made as to rulings on the admission of evidence, and none as to the giving or refusal of instructions.

Immunity from liability for negligence of Its physicians in the treatment of the case, on the part of the defendant, is not claimed. The defenses are that the only physician who attended the patient was an independent contractor; that, if this defense fails, there was no negligence in the diagnosis or treatment; and that, if there was such negligence, recovery is barred by contributory negligence.

A hospital incorporated and conducted for private gain, or the benefit of the stockholders, is liable in damages to its patients for negligence or misconduct of its officers and employees. Hogan v. Hospital Co., 63 W. Va. 84, 59 S. E. 943; Brown v. La SocietS Franchise de Bienfaisance Mutuelle, 138 Cal. 475, 71 Pac. 516; Railroad Co. v. Wood, 95 Tex. 223, 66 S. W. 449, 56 L. R. A. 592, 93 Am. St. Rep. 834; 13 R. C. L. p. 949, § 13, title, Hospitals. The purely private character of the defendant is practically admitted; no effort having been made to show that it was in any sense a charitable institution. The policy of the law forbids liability of a state or municipal hospital for negligence of its servants and physicians; it being a governmental agency. In the absence of a statute expressly imposing it, the state is never liable for the negligence of its officers. Such liability would result In enormous public burdens. On similar grounds, the law exempts charitable institutions from liability for the negligence of its servants and agents. Such institutions administer trust funds, and it is not just that they should be dissipated with liabilities of that kind. In the case of a private hospital the capital invested is neither public money nor a trust fund. It is like capital invested in any other corporation conducted for profit. Hence there is no ground of public policy upon which It can be exempted from liability for negligence on the part of its servants or agents. In its contracts, it stands upon the same basis as any other contractor, and, as to employees and third persons, it is subject to the general rule, respondeat superior.

Defendant and plaintiff were brought into relation with each other through the agency of the employer of the latter, the Western Pocahontas Fuel Company. At the time of his injury that company was paying him a salary of $125 per month for his services in its engineering department, and from his salary he, along with all other employees of the company, was contributing a small amount each month to a fund, in consideration of which the company contracted with the defendant for its medical and surgical treatment of its employees.

His left arm having been broken by a piece of flying or falling rock, first aid was given him by a local physician, who put the arm in splints, and then, with his employer's certificate of admission to the hospital, he came to Charleston and was registered in that in stitution, but his stay within its walls was limited to a few hours. After registration and the making out of a chart, an X-ray specialist was called in, at the expense of the hospital, and a picture of the arm taken. This operation consumed but a few minutes. After it was over, the plaintiff and his father remained in the hospital but a short time, probably about two hours. Being advised that the picture would not be developed and ready for use until the next morning, the father and son went to a hotel, with the understanding that they would be advised of the result the next morning, before the running of a certain train, at about 9 o'clock, by which they expected to depart for Beckley, in order to allow the son to register under the draft law, if the condition of his arm would permit his departure. On the next morning, before the time for their departure had arrived, the father.called up the hospital and was advised that the plate was not yet ready, but that, if he desired to take his son to Beckley, he could do so and the result of the reading would be given him later. With that understanding they left. They were at the hospital September the 11th and left the city the next day. On September 14, 1918, three days after the visit to the hospital, the father received a letter from the superintendent, dated September 12th, saying:

"X-ray of arm shows fracture of both the ulna and radius in upper third with very little displacement. New splints will not have to be applied."

The superintendent says this was a copy of a letter sent to the physician by whom he thought the patient had been sent to the hospital. He further says that between 12 and 2 o'clock, September 11th, while he was at work in his office, the plaintiff passed by and told him he was going to Beckley, and that in response to that he said, "Why don't you stay and find out the reading of this X-ray picture and whether you need further treatment?" and that he replied that he would rather be at home during the period of convalescence. The superintendent says he then insisted that he stay in the hospital, both for the reading of the picture and to take treatment. No denial of this demand or caution is found in the testimony.

Between the date of his return to Beckley and that of an examination of the arm by a local physician, the plaintiff had discussed his case with that physician and was advised not to have the splints taken off for a week or two, as it would be dangerous to remove them before union of the broken bones. In these conversations the substance of the letter stating the nature of the injury was given the physician. About three weeks after the date of this injury this physician took off the bandages and discovered that the arm was crooked and advised the plaintiff of his fearof some trouble. He also told him it would be a good thing for him to go right back to the hospital. Then he replaced the splints and told the plaintiff he thought they could be permanently removed in about two weeks. After the lapse of that time they were removed, and it was found that the arm was crooked and that there was still some swelling in the elbow. Thereupon the physician advised him to go to a bone surgeon. He did so December 30, 1918, and it was found, by X-ray investigation, that the radial head had been dislocated and never replaced, and that, for some reason not clearly explained, but evidently lack of union of one or bath of the fractures, it was necessary to open the wound and cut away portions of the bones, in an effort to obtain union and a straighter arm. Eater a second operation was performed, in which a little of the radial head was cut off. The arm is, still in bad condition. It is crooked, and the break in the ulna has not united and likely never will. The radius does not touch the humerus, but stands out in the tissue. These two operations were performed by a surgeon in no way connected with the defendant, and in a different hospital.

For two very good reasons, the defense of injury by an independent contractor cannot be maintained. The radiologist was employed and paid by the defendant to perform work in discharge of its own contract and undertaking to diagnose and treat the injury. Farming out work to be done under a contract never relieves from the obligation of the contract. A man cannot avoid his contract by devolving performance thereof upon a stranger. In the next place, the taking of the X-ray picture, whether properly or negligently done, was only partial performance of the diagnosis, or rather one method of investigation, and not necessarily conclusive. The picture had to be read and interpreted and judgment passed upon the conditions disclosed by it. From those conditions it was necessary to say whether treatment was necessary, and that lies clearly beyond the province and employment of the radiologist.

At the date of the alleged negligence the staff of the hospital had been disrupted and depleted by enlistments in the military service of the country, in both the medical and surgical departments. In this circumstance there is no legal justification for any dereliction of duty on the part of the defendant, but it bears strongly upon the moral aspects of the case, wherefore it is stated upon considerations of fairness to an institution charged with negligence. Another circumstance is possible misapprehension of the intent and purpose of the plaintiff in coming to the hospital. The superintendent swears he understood he had come for an X-ray examination and not for treatment. Between this statement and another to the effect that the plaintiff had been advised to remain for treatment, if found necessary, there is a degree of inconsistency, but necessity of treatment was not obvious, and no doubt there was a presumption against it, since the fracture had been reduced by a physician and the arm put in splints, which it would not have been good practice to remove if the bones had been properly set. Then there was manifest impatience on the part of the...