Weiss v. Swedish Hosp.

• Decision Date: 08 February 1943
• Docket Number: 28403.
• Citation: 16 Wn.2d 446,133 P.2d 978
• Parties: WEISS et al. v. SWEDISH HOSPITAL.
• Court: Washington Supreme Court

133 P.2d 978

16 Wn.2d 446

WEISS et al. v. SWEDISH HOSPITAL.

No. 28403.

Supreme Court of Washington, En Banc.

February 8, 1943

Action by Marjorie Weiss and another against the Swedish Hospital to recover for injuries sustained by the named plaintiff while a patient at the hospital. Judgment for the defendant, and the plaintiffs appeal.

Judgment affirmed.

MILLARD and BLAKE, JJ., dissenting.

Appeal from Superior Court, King County; Donald A McDonald, judge.

Frank Harrington and Wright & Wright, all of Seattle, for appellants.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

ROBINSON Justice.

On December 26, 1938, Marjorie Weiss, an expectant mother, was admitted to the Swedish hospital. Two days thereafter her physician was summoned, and she was taken to the delivery room. The delivery room was in charge of Mrs. Fite who had seven other nurses under her supervision. Mrs. Fite completed her training course at the Swedish hospital in 1930. For four years thereafter, she was employed as night supervisor of its delivery room. For nearly four years after that, she practiced her profession as a private nurse, principally in obstetrical cases. For some months prior to December, 1938 she had been reemployed by the hospital as day superintendent of its delivery room. The evidence shows conclusively that her general qualifications for that employment were of a high order.

Mrs. Fite followed the usual practice. When the patient began to have birth pains, she summoned her physician, took her to the delivery room, placed her on the delivery table, and strapped her wrists. She began giving the appellant ether to keep her in labor and relieve her pain. Shortly, she found it necessary to leave the room temporarily. She described the occasion in these words: 'The patient in the next room was progressing and was nearly ready to deliver and I had to go in there to get things organized in the next room, to start the delivery.'

She, accordingly, summoned Dr. Olsson, an interne, to care for Mrs. Weiss, and went to the other room to attend to her supervisory duties, instructing Dr. Olsson to continue the administration of the anesthetic, as circumstances might require. Shortly thereafter, Dr. Olsson found that the ether container was nearly empty, and, the patient being quiet, turned to get another can of ether from a row of shelves behind him. While doing so, the patient pulled her hands out of the straps, and, as Dr. Olsson turned from the shelves, she was sliding off the farther side of the table. Mrs. Fite heard the noise of the fall, and, rushing in, assisted in replacing Mrs. Weiss on the table. On several occasions Before her delivery, which was successfully accomplished about forty-five minutes later, Mrs. Weiss pulled her hands out of the straps, even though they were snugly fitted. How this could happen is best shown by the evidence of Colonel Sayer who had given Mrs. Weiss twenty-five treatments after her injury, who had supervised the taking of moving pictures of Mrs. Weiss for use at the trial, and who had been the family physician and had known her, as he expressed it, 'since she was a wee tot.' While under examination by her attorney, he testified, in part, as follows:

'Q. Have you at any time had occasion to esamine the hands of the plaintiff wife, Marjorie Weiss? A. I have seen them many times. I have never made any particular examination of them.

'Q. Would you say from your experience and observation of her hands, and such observation as you have made of other patients, there is anything extraordinary or unusual about her hands? A. I can look at them right now.

'Q. Will you look at them? (Witness examines Marjorie Weiss' hands Before jory). A. She has a long narrow hand not much bigger than her wrist.

'Q. Is that type of hand something that we do not find often in a woman? A. Oh, quite often.

'Q. You find it quite often? A. Yes, sir.'

Mrs. Fite testified, in substance, that she fitted the wrist straps snugly, but without making any particular examination of the patient's hands, never having observed or heard of a patient with hands so slender that they could be drawn through snugly fitted wrist straps.

Mrs. Weiss suffered no fracture, but two days after her fall her right shoulder began to ache, and it was then discovered that her scapula was thrown out of its proper position and that her right arm was partially paralyzed on account of some injury to a nerve. At the time of the trial, which was held nearly two years after the accident, she had made a fair recovery, although the scapula was not entirely in place and her arm tired after a little use.

Without repeating the evidence so showing, we find that due care was used by the respondent in investigating Dr. Olsson's record and qualifications Before employing him as an interne, and his competency while in the respondent's employ is shown. The only substantial dispute in the evidence concerns the length of time Mrs. Fite had been out of the room Before Mrs. Weiss fell from the table. At the trial, she testified that it was not more than two or three minutes. She appears to have testified, while giving a deposition more than a year Before , that it was ten or fifteen minutes. There is no other evidence covering that matter.

It has long been the law of this state that, even if paying for the service (as Mrs. Weiss was doing), one cannot recover with respect to an injury suffered through the negligence of a servant of a charitable corporation in performing that service, unless the corporation be found not to have exercised due care in employing that servant or unless the circumstances show some kind of administrative negligence.

If Mrs. Weiss was injured as the result of an act of negligence, it must have been some act of Mrs. Fite or Dr. Olsson (since they were the only actors), or by some kind of administrative negligence. But due care was shown in the selection of Mrs. Fite and Dr. Olsson, and we find no evidence tending to show administrative negligence. In this connection, it is urged, in appellant's brief, that the jury would be warranted in inferring that Dr. Olsson was compelled to leave the delivery room to procure additional ether. In so stating, counsel overlooks the positive and undisputed evidence of Mrs. Fite, appearing on page 21 of the statement of facts, and of Dr. Olsson, at page 138, that the ether was secured from shelves immediately behind him and but a few feet from the delivery table.

We held in the case of Magnuson v. Swedish Hospital, 99 Wash. 399, 169 P. 828, a case decided in 1918, that the respondent in this case was at that time a charitable corporation. Evidence in this case shows that it still operates under the same articles and in accordance with the same non-profit plan as was set forth at some length in the opinion in that case and therefore need not be repeated here.

There is additional evidence in this record to the effect that respondent now maintains a well-equipped cancer clinic in which every case of cancer which may appear curable, including all United States marine hospital cases, is received for treatment whether the patient is able to pay or not; also, that in 1937 the Swedish hospital took care of 110 free patients and 226 part-pay patients, in 1938, 94 free patients and 255 part-pay patients, in 1939, 81 free patients and 368 part-pay patients. This does not include 'bad debt' patients or free treatment of out-patients in the cancer clinic. The cost of the free treatment of out-patients was as follows: 1937, §5,222; 1938, $2,957.50; 1939, $5,520.

Without doing any free work of any kind, the Swedish hospital would still be a charitable corporation so long as its surplus income is applied to the support, maintenance, and enlargement of the hospital and its facilities. The evidence is that it has always followed this policy, and, in the exercise thereof, starting with a modest amount of money loaned by public spirited citizens, has built up a plant with a value in excess of a million and a quarter dollars. It is a charitable corporation because all of its earnings are devoted to providing care for the sick and afflicted or in the construction of additions and improvements to enlarge its usefulness. Its surplus income has invariably been applied to the improvement and building up of its facilities. Some of the great religious sisterhoods, in following the same policy, have built, and maintain, extensive chains of such hospitals. In so doing, they have not lost their legal classification as charitable institutions. Whether or not they charge for their services is not the test. It is the character of their work, plus the fact that all earnings are employed in extending and improving their facilities, which gives them, in law, their charitable classification.

There is evidence in the record to the effect that certain of the trustees of the respondent hospital have sold it goods and services. One, an experienced building contractor, received fees for supervising the construction of some of its buildings. Another furnished it lumber at the going price. Another supplied its needs for milk and other food products for a period of years. Still another did its laundry work for a considerable period. There were one or two other instances in which trustees of the hospital had business transactions with it. The appellants contend that all such dealings constituted breaches of trust, relying upon Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1, and citing Hamilton v. Corvallis Gen. Hosp. Ass'n, 146 Or. 168, 30 P.2d 9, further contend that this class of evidence should have carried the case to the jury, and requires that this court should now grant a new trial.

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