State ex rel. Gordon Memorial Hospital v. West Virginia State Bd. of Examiners for Registered Nurses

Decision Date19 June 1951
Docket NumberNo. 10360,10360
Citation136 W.Va. 88,66 S.E.2d 1
PartiesSTATE ex rel. GORDON MEMORIAL HOSPITAL, Inc., v. WEST VIRGINIA STATE BOARD OF EXAMINERS FOR REGISTERED NURSES et al.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. The right, the privilege, or the authority to operate an accredited school of nursing in connection with a hospital owned and operated by the owner of such school issued to such owner by the West Virginia State Board of Examiners for Registered Nurses, is a personal right, privilege, or authority which may not be assigned to any other person by the person to whom it is issued; and any such attempted assignment does not transfer such right, privilege, or authority to the assignee.

2. When it appears from the petition in an original proceeding in prohibition that the petitioner has no right to maintain such proceeding, that a demurrer to the petition should be sustained, and that the defect in such petition which renders it demurrable can not be cured by amendment, this Court will sustain the demurrer, deny the writ, and dismiss such proceeding.

Wm. Bruce Hoff, Parkersburg, J. M. Harper, Spencer, for relator.

William C. Marland, Atty. Gen., Homer W. Hanna, Jr., Asst. Atty. Gen., for respondents.

Charles C. Wise, Charleston, for West Virginia State Nurses Ass'n, amicus curiae.

HAYMOND, Judge.

In this original proceeding the petitioner, Gordon Memorial Hospital, Inc., a corporation, seeks to prohibit the defendants, the West Virginia State Board of Examiners for Registered Nurses, and Sister Mary Pia, Ann Henshaw Gardiner, Alice Virginia White, Catherine Thorn Benninghoff, and Clifford Burroughs, its members, from removing from the list of accredited schools of nursing in this State, recognized and authorized by the board, a school for nurses which is owned and operated by the petitioner in connection with its hospital at Spencer, in Roane County, West Virginia.

After having been notified by letter from the board, dated April 19, 1950, that the school operated by the petitioner would, for reasons stated, be removed from the accredited list on January 1, 1951, the petitioner, to prevent such threatened action, instituted this proceeding in this Court on December 27, 1950. Upon the petition in rule returnable January 16, 1951, was awarded by this Court. On that day the defendants filed their answer to the petition and, an issue of fact having arisen upon the pleadings, this proceeding, by agreement of counsel and permission of this Court, was continued until April 10, 1951. At that time it was submitted for decision upon the petition, the demurrer of the defendants to the petition, the answer of the defendants, the general replication of the petitioner to the answer, the depositions taken and filed by the respective parties, the motion of the defendants, filed January 11, 1951, to dismiss this proceeding, the briefs in behalf of the respective parties, the brief of West Virginia State Nurses Association, as amicus curiae, filed by leave of this Court, and the oral arguments of counsel.

The petitioner is a duly organized corporation under a charter issued to it by the Secretary of State in March, 1950, and is authorized, by its certificate of incorporation, to conduct for profit a general hospital and to operate, in connection with it, a training school for nurses. Its principal place of business is in Spencer, Roane County, where it owns and operates a general hospital business. Shortly after its incorporation the petitioner acquired, by conveyance from Dr. A. T. Gordon, its hospital property and its interest in the nurses training school which it is, and since it obtained title to the hospital has been, operating in connection with and as a part of its general hospital business. Dr. Gordon, a duly licensed physician and surgeon, has practiced his profession in Spencer and Roane County since 1919, and, continuously from and after 1921, owned the hospital which he conveyed to the petitioner, and which he operated as the City Hospital or the Gordon Memorial Hospital until he transferred it to the petitioner in 1950. During most of the period of his ownership and operation of the hospital, and at least from 1925 to the time of the transfer to the petitioner, he operated and conducted, in connection with the hospital, the nurses training school conveyed to the petitioner, which now appears on the list of accredited schools recognized by the defendant, the West Virginia State Board of Examiners for Registered Nurses, and which it regarded as an accredited school until the occurrence of the differences between the petitioner and the board which gave rise to this litigation.

When Dr. Gordon established his training school for nurses, in connection with the hospital owned and operated by him, Section 29-d IV, Chapter 32, Acts of the Legislature, 1917, Regular Session, which in part provided, among other specified requirements, that a training school, to be a recognized school for nurses, within the meaning of the act, must be connected with a hospital having a daily average of at least fifteen patients, was in force and effect, and this provision was incorporated in Section 29d(4) of Chapter 150 of the Code of 1923. Section 29d(8) of a subsequent statute, Chapter 23, Acts of the Legislature, 1925, Regular Session, provided that 'An accredited school for nurses within the meaning of this act is defined to be one connected with a hospital having a daily average of at least fifteen patients;' and enumerated other requirements to be satisfied by an accredited school. Section 5, Article 7, Chapter 30, Code, 1931, contained provisions similar to those of the prior statutes. That section was amended and reenacted by Section 5, Article 7, Chapter 60, Acts of the Legislature, 1937, Regular Session, which, in its pertinent parts, contains these provisions: 'An accredited school for nurses within the meaning of this article is defined to be one connected with a hospital having a daily average of at least fifteen patients, which requires its pupil nurses in training to have had at least four years of high school education, or three years of high school work after graduation from a standard junior high school, and to have received a diploma or certificate of graduation from a standard high school in this state, or from a high school outside this state having equal standards, grades and requirements; which does not send out its pupil nurses for private duty; which employs regularly at least one registered nurse; and which provides for its pupil nurses a three years' continuance theoretical and practical course of training in bedside nursing, except for a vacation not to exceed four weeks each year, and a substantial course of training in each of the subjects named in the preceding section upon which applicants for certificates are to be examined by the board of examiners for nurses. * * *'

During the period in which the foregoing statutes were enacted Dr. Gordon, as the owner and the operator of the hospital and the school for nurses conducted in connection with it, complied with the requirement of the respective statutes and his school was placed and remained upon the list of schools accredited by the board.

The current statute, Article 7, Chapter 96, Acts of the Legislature, 1945, Regular Session, in Section 6, after providing for the appointment of the State Board of Examiners for Registered Nurses and prescribing its duties and powers, uses this language: 'The board is authorized to adopt and, from time to time, revise such rules and regulations not inconsistent with the law, as may be necessary to enable it to carry into effect the provisions of this act. The board shall prescribe curricula and standards for schools and courses preparing persons for licensure under this article. It shall provide for surveys of such schools and courses at such times as it may deem necessary. It shall accredit such schools and courses as meet the requirements of this article and of the board. It shall evaluate and approve courses for affiliation. It shall examine, license and renew the license of duly qualified applicants.' Section 8, of the same statute, contains, among others, these provisions: 'An institution desiring to be accredited by the board shall file an application therefor with the board, together with the information required and a fee of ten dollars. It shall submit evidence that: (1) It is prepared to give the course of theoretical instruction and practical experience in nursing as prescribed in the curriculum adopted by the board. Such instruction and experience may be secured in one or more institutions approved by the board; (2) it is prepared to meet other standards established by this law and by the board.

'A survey of the institution, or institutions, with which the school is to be affiliated shall be made by the executive secretary of the board. The executive secretary shall submit a written report of the survey to the board. If, in the opinion of the board, the requirements for an accredited school of nursing are met, it shall approve the school as an accredited school of nursing. * * * If the board determines that any accredited school of nursing is not maintaining the standards required by the statutes and by the board, notice thereof in writing specifying the defect or defects shall be immediately given to the school. A school which fails to correct these conditions to the satisfaction of the board within a reasonable time shall be removed from the list of accredited schools of nursing.'

It appears that pursuant to the above quoted provisions of the current statute the board at a meeting held in December, 1947, promulgated and adopted rules and regulations which fixed minimum standards for the regulation and the curriculum of accredited schools of nursing, and which, prior to their adoption, were mailed in July, 1947, to...

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