Pierce v. Yakima Valley Memorial Hosp. Ass'n

• Citation: 43 Wn.2d 162,260 P.2d 765
• Decision Date: 01 September 1953
• Docket Number: No. 32488,32488
• Parties: PIERCE, v. YAKIMA VALLEY MEMORIAL HOSPITAL ASS'N.
• Court: United States State Supreme Court of Washington

Page 162

43 Wn.2d 162

260 P.2d 765

PIERCE, v. YAKIMA VALLEY MEMORIAL HOSPITAL ASS'N.

No. 32488.

Supreme Court of Washington, en Banc.

Sept. 1, 1953.

Harry Hazel, Yakima, for appellant.

Gavin, Robinson & Kendrick and George M. Martin, Yakima, for respondent.

Tonkoff, Holst & Hopp, Yakima, R. Max Etter, Spokane, Lewis L. Stedman, Henry Elliott and Jack R. Cluck, Seattle, amici curiae.

HAMLEY, Justice.

This appeal presents a single question, namely: Where a paying patient of a charitable, nonprofit hospital sustains injuries by reason of the negligence of a nurse, may such patient recover damages from the hospital?

The alleged negligence consisted of the act of a hospital nurse in injecting a foreign substance into plaintiff's left arm, causing pain and permanent injury. It was not alleged that defendant failed to exercise due care in the selection or retention of the nurse, or that it was guilty of what has been termed 'administrative negligence,' such as the failure to furnish proper equipment.

The trial court sustained a demurrer to the complaint. Plaintiff declined to plead further, and an order dismissing the action with prejudice was accordingly entered. Plaintiff appeals.

The trial court followed the only course available to it in view of the past decisions of this court. In a line of cases extending from Richardson v. Carbon Hill Coal Co., 6 Wash. 52, 32 P. 1012, 20 L.R.A. 338, decided in 1893, to Clampett v. Sisters of Charity, 17 Wash.2d 652, 136 P.2d 729, decided in 1943, this court has uniformly held that a charitable hospital is not, in the absence of a showing of negligence in the selection or retention of its doctors or nurses, liable for the negligence of such employees in treating a patient.

Under this rule of immunity, it has been held to be immaterial that the patient paid for his hospital service. Wharton v. Warner, 75 Wash. 470, 135 P. 235; Magnuson v. Swedish Hospital, 99 Wash. 399, 169 P. 828; Tribble v. Missionary Sisters of Sacred Heart, 137 Wash. 326, 242 P. 372; Miller v. Mohr, 198 Wash. 619, 89 P.2d 807; Canney v. Sisters of Charity, 15 Wash.2d 325, 130 P.2d 899; Weiss v. Swedish Hospital, 16 Wash.2d 446, 133 P.2d 978.

Appellant asks us to overrule these decisions and withdraw from charitable institutions the cloak of immunity which now protects them from such suits.

This is not the first time we have been asked to re-examine and discard this rule of immunity.

In Simon v. Hamilton Logging Co., 76 Wash. 370, 136 P. 361, which was before us in 1913, we declined to do so.

In Magnuson v. Swedish Hospital, supra, decided in 1918, we entered into such an inquiry. Our decision in that case to adhere to the rule was predicated upon four factors: The constraint which the rule of stare decisis placed upon us; the fact that the legislature had not seen fit to repudiate the court-made immunity rule; the fact that the 'overwhelming' weight of authority elsewhere favored immunity; and the view that the rule of nonliability serves a sound public policy. This latter view was expressed in these words:

'While the application of the rule to individual cases may sometimes seem harsh and the result regrettable, there are very few doctrines of the law of which the same may not be said with equal truth. When viewed in the light of a broader vision, however, we are convinced that the individual hardships wrought are offset many times over by the encouragement and stimulation which the rule of nonliability gives to the establishment and maintenance by private charity of institutions devoted to the care of the halt, the lame, and the blind, and to the relief of those suffering from physical or mental disease and affliction.' 99 Wash. at page 408, 169 P. at page 831.

In 1939, this court was again asked to re-examine our earlier cases. We declined to do so on the ground that the immunity rule had been consistently followed for a long period, and was in accord with the 'greater' weight of authority. Miller v. Mohr, 198 Wash. 619, 89 P.2d 807.

The cause of action involved in Miller v. Mohr was before us again in 1940. Miller v. Sisters of St. Francis, 5 Wash.2d 204, 105 P.2d 32. The majority declined to review any question which had been decided on the first appeal. This would include the question of whether the immunity rule should be adhered to. Judge Robinson, with whom Judge Simpson agreed, filed a concurring opinion. While agreeing with the majority that the former opinion became the law of the case, Judge Robinson expressed the view that, were the court at liberty to disregard the former opinion, he would still (but for a different reason) favor the result reached by the majority. His reason is worth quoting:

'* * * I have come to believe that the rule of tort non-liability of so- called charitable institutions has become an anachronism and should be no longer enforced. The only consideration that would cause me to hestitate is that so important a change in our established law ought ordinarily be made by the legislature rather than by the courts. I note, however, that, although this reason was strongly urged by a dissenting justice, it did not deter the supreme court of California from recently abandoning the rule in a case decided some months after our opinion on the first appeal was rendered. Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 97 P.2d 798. I further note that in a discussion of a similar case in 38 Columbia Law Review, 1485, 1489, it is logically contended that, since the rule was created by the courts, it may properly be modified or abandoned by them. Courts, however, rightly hesitate to make major changes in the law without some sort of advance warning or notice.

'It would serve no useful purpose to here set out the reasons why the rule should be abandoned. I think it appropriate, however, to call the attention of the administrative officers of hospitals and other charitable institutions to the fact that the trend in that direction has become very strong, and that it is rapidly increasing in momentum. As indicative of this, I cite the following: Sheehan v. North Country Community Hospital, 1937, 273 N.Y. 163, 7 N.E.2d 28, 109 A.L.R. 1197; 38 Columbia Law Review (1938), 1485; the Silva case, supra, decided in January, 1940, and comments on the nonliability rule appearing independently in the May 1940 issues of three of our law reviews, towit: 28 California Law Review, 530; 26 Virginia Law Review, 951; and 1 Washington and Lee Law Review, 257. The next generation of judges will surely abandon the rule if we do not.' 5 Wash.2d at pages 213-214, 105 P.2d at page 36.

The last time we were asked to abandon the immunity rule was in 1943. In Weiss v. Swedish Hospital, 16 Wash.2d 446, 133 P.2d 978, decided that year, it was held that the immunity rule should be adhered to. Judge Robinson wrote the opinion, and Judges Millard and Blake dissented. The majority gave the following reasons for adhering to the rule:

'When we consider the great diversity of variant rules which might be adopted, and at the same time remember that the rule with which we are dealing does not apply to hospitals alone but to churches, educational institutions, Y. M. C. A.'s, social welfare organizations, and, in general, to the various organizations, engaged in philanthropic, benevolent, and charitable work, it is at once manifest that a change in the rule, particularly its complete abandonment, would have far-reaching, and, perhaps, unimagined and unintended consequences. Furthermore, the hospitals are almost our only existing training schools for nurses. Of our desperate needs in this regard we have just been forcibly reminded by the recent arrival at Seattle of nearly five hundred wounded men from but one of our many farflung battle fronts.' 16 Wash.2d at pages 454-455, 133 P.2d at page 981.

The above review of our past decisions indicates, and appellant concedes, that the one substantive reason which our court had advanced and relied upon as justifying the immunity rule, is that which has been broadly labeled 'public policy.' Even this substantive reason finds expression in only one of our decisions--Magnuson v. Swedish Hospital--and without actually using the term 'public policy.' The public policy consideration there advanced was that nonliability is desirable because of the 'encouragement and stimulation' such a rule gives to worthy charitable institutions.

The fact that the immunity rule in this state is based upon a declaration of public policy made by our court thirty-five years ago has significance in determining whether we should now re-examine the rule. The factors upon which any public policy is based--the relevant factual situation and the thinking of the times--are not static. They change as conditions change, and as ways of looking at things change. As Judge Hays said, for the supreme court of Iowa, in repudiating the immunity rule announced in two earlier Iowa cases, Andrews a Y. M. C. A., 226 Iowa 374, 284 N.W. 186; Servison v. Y. M. C. A., 230 Iowa 86, 296 N.W. 769:

'Public policy simply means that policy recognized by the state in determining what acts are unlawful or undesirable, as being injurious to the public or contrary to the public good. It is not quiescent but active. A policy adopted today as being in the public good, unlike the Ten Commandments, is not necessarily an ever enduring thing. As times and prospectives change, so changes the policy. * * *' Haynes v. Presbyterian Hospital Ass'n, 241 Iowa 1269, 1272, 45 N.W.2d 151, 153.

We therefore believe it to be appropriate, after this lapse of time since Magnuson was decided, to re-examine the public policy there announced, in the light of present conditions and present-day thinking.

Before doing so, however, it will be profitable to review the historical background of the immunity rule and the reasons, other than public policy, which have been advanced in its support.

It should first be noted that we use...