Taylor v. Flower Deaconess Home And Hospital
| Decision Date | 24 January 1922 |
| Docket Number | 16926 |
| Citation | 135 N.E. 287,104 Ohio St. 61 |
| Parties | Taylor v. Flower Deaconess Home And Hospital |
| Court | Ohio Supreme Court |
Negligence - Public charitable hospital - Liability - Failure to exercise care - Selection of competent physicians, nurses and attendants.
Where a public charitable hospital has failed to exercise due and reasonable care in the selection of physicians, nurses or attendants, and injury results from the incompetence or negligence of such persons, the hospital is liable. (Taylor Admr., v. Protestant Hospital Assn., 85 Ohio St. 90 distinguished.)
The plaintiff in error brought suit against the defendant in error in the common pleas court of Lucas county for the recovery of damages resulting from personal injuries received by him while he was a patient in the hospital at Toledo.
The plaintiff predicated his right of recovery on the negligence of the defendant in its failure to use ordinary care in the selection and retention in its employ of a certain student assistant, who is alleged to have administered to the plaintiff an injection of scalding hot water immediately following an operation on him for appendicitis, and while he was under the influence of ether.
The petition avers that the defendant is a corporation organized under the laws of Ohio for the purposes of maintaining a thoroughly equipped home and hospital, where those needing medical or surgical aid may receive the best possible care by experienced nurses; that the defendant now occupies and conducts such hospital in the city of Toledo.
It avers that plaintiff was admitted to the hospital as a patient, for care and treatment for a valuable consideration paid by plaintiff to defendant.
The petition describes the operation for the removal of the appendix of the plaintiff; recites that it was successful and that the surgeons were required to administer an anesthetic, under the influence of which plaintiff remained in a deep sleep for several hours, and that while in this deep sleep the defendant undertook to administer what is termed a clysis, which consists of an enema or injection of hot water into the intestines for the administration of which great care is necessary; and avers that the defendant negligently and carelessly authorized a servant, who was not skilled or schooled in the administration of the same, or in the various duties required of servants at the hospital, or in the various duties which such servant was directed to perform over the unconscious body of the plaintiff at the time, all of which facts were known to the defendant or in the exercise of reasonable care should have been known by it.
The petition further avers that the servant negligently and carelessly performed said duty, administered said injection by the use of scalding hot water, so that plaintiff even in said unconscious state writhed and twisted, and so that the tube became loosened and the scalding water then ran upon the outside of the body, injuring plaintiff; that the direct and proximate cause of the injuries received by plaintiff was the negligence and carelessness of the defendant in selecting an incompetent and unskillful servant to administer to plaintiff the aforesaid clysis, which said servant was not skilled and schooled in the administration of the said treatment and was incompetent to perform or to administer the same, all of which the defendant knew or in the exercise of reasonable diligence should have known.
The details of the injury are then set forth and a judgment prayed for.
By its answer the defendant admits that it is a corporation under the laws of Ohio for the purposes alleged in the plaintiff's petition, that the plaintiff was on March 14 1917, admitted to the hospital as a patient for a valuable consideration, and that plaintiff was placed in one of the private rooms of the hospital and remained there for some time; that plaintiff entered the hospital intending to have his appendix removed, and so far as defendant is informed the appendix was removed by a skillful servant; that an anesthetic was administered and plaintiff was under the influence of same; that plaintiff's rectum was burned while in defendant's hospital. Defendant asserts that the nature and extent of plaintiff's injury is unknown to it, and it therefore denies plaintiff's allegations as to same and that plaintiff on account of said burns has been compelled to engage medical attention, and it denies every other allegation in the petition.
The defendant further avers that it is now and ever since it was organized has been a public and charitable corporation; that it was incorporated and organized for the purpose of providing hospital accommodations for the sick and injured, and to aid the sick and needy; that it never has had, has not now, and cannot have any capital stock; that it never has declared and cannot declare dividends; that it never made and cannot make any profits, either for the corporation or its members; that its funds and income have always been and will continue to be derived from the rents, donations, devises and bequests, monies and supplies, from and by benevolent persons; that such funds and income have been used for the erection and support of a public and charitable hospital for the sick and injured and will have to be used in the future for the improvement and maintenance thereof.
Defendant says that said hospital has always been and is now open to all persons who apply for its benefits as long as it has accommodations; that it has had and now has rooms for patients who are gratuitously lodged and cared for, and for those who are able to pay for the same, the proceeds of which have always been used for the maintenance of the hospital; that plaintiff engaged a room in said hospital, came into the same as a patient, and brought a special nurse into the hospital; and that the amounts to be paid by patients, including plaintiff, for hospital service and accommodations were not equal to the cost thereof, the balance being provided by the public, charitable and voluntary contributions.
In his reply the plaintiff denied the allegations of the answer except such as are admissions of allegations contained in the petition.
The case was tried in the common pleas to a jury and resulted in a verdict and judgment in favor of the plaintiff. On proceedings in error the court of appeals reversed the judgment and rendered final judgment in favor of the defendant. This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the common pleas.
Messrs Miller & Brady, for plaintiff in error.
Messrs. Geer & Lane, for defendant in error.
The undisputed evidence showed, and the trial court charged the jury, that the hospital of the defendant is a public charitable hospital; that it has no capital stock; that it cannot obtain profits from the use of the funds in its hands and whatever increase comes to the fund belongs to it and must be used for the purpose of the fund. The court also charged the jury that being a public charitable institution it was not liable under the law for the negligence of its servants or agents if it had exercised ordinary care in employing and keeping such servants and agents.
The charge of the court also contained the following:
"In addition to proving that the defendant was negligent in this matter that the charges, in the selection and keeping of this servant and the proof on her incompetency and carelessness, which the plaintiff must prove the plaintiff must also prove that such negligence of the corporation, either in receiving and installing her as a student nurse, or in keeping her after they found, or should have found in the exercise of ordinary care, she was incompetent, plaintiff must prove in addition that such negligence on the part of the defendant was the direct and proximate cause of the injury which plaintiff complains of."
It does not appear that the court of appeals found that the verdict was against the weight of the evidence.
This court must accept the verdict of the jury as conclusive upon the questions of fact which remained in dispute. The decisive question in the case, therefore, is whether a public charitable hospital corporation is liable for the negligent and careless acts of an incompetent nurse in its employ when the hospital failed to exercise ordinary care in the selection and retention of such incompetent and careless nurse in its employ.
The liability of public charitable hospitals for the negligence and wrongful acts of employes has been considered in many of the courts in this country and in England and this has resulted in the expression of widely divergent views. In some instances different conclusions have been arrived at in the same jurisdiction under various circumstances. Courts have differed in the method of reasoning as well as upon the grounds upon which they have arrived at their conclusions. Some courts have held that as funds are donated for the specific object of the beneficence they constitute a trust and cannot be diverted to the payment of judgments for torts. Others have regarded the acceptance by the patient of the benefit of the charity as a waiver of claim for neglect. But the most generally accepted theory is that it is against public policy to hold the charity liable for negligence of servants where they have been selected with care.
The exact question involved in this case has never before been presented to this court.
In Taylor, Admr., v. Protestant Hospital Assn., 85 Ohio St. 90 it was held that "The fact that a public charitable hospital receives pay from a...
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