Moon v. Mercy Hospital

• Court: Colorado Supreme Court
• Writing for the Court: FRANTZ
• Citation: Moon v. Mercy Hospital, 373 P.2d 944, 150 Colo. 430 (Colo. 1962)
• Decision Date: 23 July 1962
• Docket Number: No. 19960,19960
• Parties: Viola MOON, Plaintiff in Error, v. MERCY HOSPITAL Defendant in Error.

Page 944

373 P.2d 944

150 Colo. 430

Viola MOON, Plaintiff in Error, v. MERCY HOSPITAL Defendant in Error.

No. 19960.

Supreme Court of Colorado, In Department.

July 23, 1962.

Rehearing Denied Aug. 27, 1962.

Wallace McCamant, Denver, for plaintiff in error.

T. Raber Taylor, Denver, for defendant in error.

FRANTZ, Justice.

Does the complaint of Viola Moon, seeking to recover damages from the hospital for an alleged injurious tort, 'state a claim upon which relief can be granted'? The trial court held that it did not, and accordingly entered a judgment of dismissal against her. This action of the trial court is the sole subject of attack by the present writ of error.

In substance the salient allegations of the complaint are: (1) that the hospital is a Colorado corporation; (2) that the hospital employed a doctor, 'a resident in surgery, duly licensed to practice medicine in the State of Colorado'; (3) that the doctor, as an employee of the hospital, diagnosed, treated and operated on Viola Moon; (4) that in the diagnosis, treatment and operation of Viola Moon, the doctor as such employee acted carelessly and negligently and the hospital 'carelessly and negligently failed to exercise proper supervision over its employee,' the doctor, in respect to diagnosis and treatment of her; (5) that serious permanent injury flowed from the said careless and negligent acts.

Certain statutory provisions relating to doctors and hospitals and a trilogy of decisions of this court predestine the outcome of this case.

The statutes are legislative declarations of the prevailing policy of this state in connection with the practice of medicine and the operation of hospitals. C.R.S. '53, 91-1-1 and 66-1-1 et seq.; Spears Free Clinic and Hospital v. State Board of Health, 122 Colo. 147, 220 P.2d 872.

C.R.S. '53, 91-1-6, defines the phrase, 'practice of medicine,' in great detail, and 91-1-7 lays down the conditions under which one may be licensed to practice medicine. The licensing of a hospital is provided for by C.R.S. '53, 66-4-1 et seq., as amended. These are distinct licenses permitting complementary but different services.

In the case of Purcell v. Poor Sisters of St. Francis Seraph, 147 Colo. ----, 364 P.2d 184, we made this pertinent observation:

'Under C.R.S. '53, 91-1-7, 'a license to practice medicine shall be granted by the board to an applicant' who meets certain requirements. A license to operate a hospital 'for the treatment or care of the sick or injured' is a prerequisite to the functioning of such an establishment, by C.R.S. '53, 66-4-1. These enactments are expressions of the legislative will that the two callings require different licenses. These licenses authorize related but different activities, and the issuance of the one does not permit operation under the other.

'We defer to that which the legislature plainly and unequivocally has treated as separate and distinct pursuits requiring different licenses. A hospital is not 'licensed to practice...