Progar v. The Washington Hospital

• Decision Date: 11 June 1970
• Docket Number: 296
• Citation: 49 Pa. D. & C.2d 485
• Parties: Progar v. The Washington Hospital
• Court: Pennsylvania Commonwealth Court

49 Pa. D. & C.2d 485

Progar v. The Washington Hospital

No. 296

Common Pleas Court of Washington County, Pennsylvania

June 11, 1970

July term, 1969.

Preliminary objections to complaint.

Wray G. Zeit, 3rd, for plaintiff.

Francis H. Patrono, for defendant.

OPINION

SWEET, P. J.

This is an action of wrongful death and in survival. Sharon Ann Progar, who was admitted to The Washington Hospital on April 24, 1969, expired on May 1st of the same year. Malpractice and negligence by the hospital are charged. Plaintiff has also alleged that the hospital is absolutely liable in strict liability per se to him and claims not only the usual compensatory damages, but also punitive damages.

Defendant has taken preliminary objection to the claim of absolute liability and the demand for punitive damages. Without giving citation of cases, plaintiff has asserted that the conduct of defendant hospital brings it within the ambit of section 402(a) and section 519 of the Restatement of Torts. The claim of section 402(a) is based on the proposition that the hospital is the seller of drugs, that the drugs in question were in a defective condition unreasonably dangerous to the user; that the drugs reached the user without substantial change in condition; and that they caused the death of Mrs. Progar, the user. The argument that section 519 is controlling is based on the theory of ultrahazardous activities. Plaintiffs brief says this: " Certainly hospitals do commonly dispense drugs, however, they do not commonly dispense the major tranquilizers, such as were administered to the plaintiffs decedent, i.e., Mellaril, Stelazine, and Sparine. These drugs in no way are a matter of common usage and their inheritant (sic) dangerous qualities, appropriately bring them within the characterization of ultrahazardous.'"

This court held only 20 days ago that 402(a) is applicable to an action in wrongful death and survival. See Petrisek v. Joy Manufacturing Company and Bethlehem Mines Corporation, November term 1969 no. 84, and much of what we said there could apply here if the challenge had been the same.

However, in our case today, the party defendant is The Washington Hospital, an eleemosynary corporation. Recently, the rule of charitable immunity which had long protected hospitals, churches, colleges and the like from the dangers and demands of personal injury litigation was abolished. Our Supreme Court in Flagiello v. Pennsylvania Hospital, 417 Pa. 486 (1965), squarely held that a hospital is subject to liability to a paying patient who suffers personal injuries as the result of the hospital's negligence. The five to two majority overruled Michael v. Hahnemann Medical College and Hospital of Philadelphia, 404 Pa. 424 (1961), and Knecht v. Saint Mary's Hospital, 392 Pa. 75 (1958), and I suppose, inferentially, a host of other cases as listed in the Chief Justice's impressive dissent.

Accepting Flagiello, supra, as we must, we come logically to the next inquiry: Shall we hold that an eleemosynary corporation is absolutely liable for the torts of its servants? Here, specifically, negligence in administering drugs is charged, although from the breadth and scope of the complaint, it is a little difficult to tell what else may be comprehended in the pleadings.

In the nature of things, a hospital will be constantly administering drugs, medications, analgesics, soporifics and the like. The most vital processes of the body will be the subject of examination, exploration and repair. Heart surgery, brain surgery, openings and closings of the peritoneum and other areas, will go on daily. Thousands of employee in the hospitals in Pennsylvania will participate in surgical procedures, as patients are placed under anesthetic, operated on, given intravenous injections, fed a variety of diets, submitted to the modalities of treatment in physical medicine and the like. The opportunities for injury and death are incalculable. Surely, the hospital administrator must say with Lord Clive, " When I consider my opportunities, by God, sir, I stand astounded at my moderation!"

Flagiello, supra, standing alone, was a bitter dose for the charitable to swallow. To declare the hospitals absolutely liable in any or many of these situations hinted at above will be, if anything, worse.

Let us look at strict or absolute liability then as it has grown in England and here too, and see if we must reshape private medicine on this procrustean bed. Strict liability starts with Rylands v. Fletcher, L. R. 1 Exchequer 265, 3 H. L. 330, wherein it was held that an unnatural collection of water and its sudden release imported absolute liability. Because of the necessity of damming and milling in a pioneer economy, Rylands v. Fletcher, supra, received a cold reception in the United States. ^[1] The doctrine that the miller acts at his peril was only slowly accepted here. As Eldredge says in Modern Tort Problems, page 26, " The imposition of absolute liability would have crushed something the community needed very much."

The principle of absolute liability, however, has grown over the years and has been applied in a multiplicity of situations. We should look at a number of these and see if there is a thread running through them and, if so, whether we can trace its course in such a way as to advise us whether hospitals should be included. Blasting brought about absolute liability at an early day in Pennsylvania (see Mulchanock v. The Whitehall Cement Manufacturing Company, 253 Pa. 262 (1916) ), and, of course, we here in Washington County are fully aware of Federoff v. Harrison Construction Co., 362 Pa. 181 (1949). An oil drilling situation not too greatly unlike dynamite blasting or dam breaking gave rise to liability in Green v. General Petroleum Co., 205 Cal. 328, 270 P. 952. The storage of explosives brought on absolute liability in Bradford Glycerin Company v. St. Mary's Woolen Manufacturing Co., 60 Ohio St. 560, 54 N.E. 528. These cases, blasting, oil drilling, storage of explosives, collected great masses of water, have something in common, and it is understandable why gradually similar results have been reached in them. The compelling similarity to a hospital situation is not so readily apparent.

However, absolute liability has come to be applied in a wider selection of cases than these few where the tremendous potential for harm and an analogy to trespass quare clausum fregit is pretty readily discernible. Absolute liability has been applied to a violation of the child labor laws in Faiola v. Calderone, 275 Pa. 303 (1923); to straying livestock, Erdman v. Gottschall, 9 Pa.Super 295 (1899); and to the construction of coke ovens, Robb v. Carnegie Bros. & Co., 145 Pa. 324 (1891); all here in the Commonwealth of Pennsylvania. In an opinion of more than usual interest, the Georgia Supreme Court applied absolute liability to one who suffered his baboon to escape: Candler v. Smith, 50 Ga.App. 667, 179 S.E. 395. The spark arrester cases are legion in this field of the law. Railroads have been held absolutely liable for whatever fires defective locomotives set in the farmers' field exemplified by St. Louis and San Francisco Railway Company v. Matthews, 165 U.S. 1. Workmen's compensation laws have been sustained against the outcry that they imputed liability without fault, e. g., New York Central Railroad Company v. White, 243 U.S. 188, 204 (1917). In a field far from personal injury, certain defamations have been found to give rise to such liability. One of the first of these was Morrison v. Ritchie, 39 Scottish L. R. 432 (1902), where a birth notice was printed attributing a new-born child to a couple married only three months. More conventionally, the practice of crop dusting has given rise to strict liability cases, for instance, Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949). There is a tremendous advantage for plaintiff to pouring a situation into the mould of absolute liability because, " Where the rule of strict liability is followed, the contributing negligence of the plaintiff is not a bar to recovery" : Harper and James, 1956, The Law of Torts, p. 843.

Notwithstanding the analogy of the spark arrester cases which have a background of appeasing agrarian dissent, courts have held that " ... one who employs fires for steam in an extensive manufacturing enterprise is not liable for fires started by sparks escaping from the smokestacks of his factory" ; e. g., O'Day v. Shouvlin, 104 Ohio St. 519, 136 N.E. 289 (1922). That case said:

" Because of the public benefits conferred by the erection and operation of these plants, as part of the system of our industrial civilization, private convenience must in some respects give way to public benefits. So long as these manufacturing plants are operated in the usual and ordinary way, by modem appliances and without negligence upon the part of the owner and operator, there will be no liability on the part of the latter, providing the operation is not inherently noxious or dangerous, and, therefore, a nuisance." See also Harper and James, 1956, The Law of Torts, p. 862.

The Supreme Court of Pennsylvania held in Summit Hotel Company v. National Broadcasting Company, 336 Pa. 182 (1939), that it wouldn't impose absolute liability on a broadcaster for an interpolated remark by a guest artist. This was the incident still remembered around here when Al Jolson said over the radio that the Summit Hotel, near Uniontown, was " ... a rotten hotel... when I was in Uniontown the last time all the hotels were lousy." Eldredge, Modern Tort Problems, p. 56, gives an interesting account of this litigation.

The Restatement of Torts has entered this field and can contribute quite a lot to our understanding of the problem. For...