Wilmington General Hosp. v. Manlove

• Decision Date: 02 October 1961
• Citation: 4 Storey 15,54 Del. 15,174 A.2d 135
• Parties: , 54 Del. 15 WILMINGTON GENERAL HOSPITAL, a corporation of the State of Delaware, Defendant Below, Appellant, v. Darius M. MANLOVE, Administrator of the Estate of Darien E. Manlove, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 135

174 A.2d 135

4 Storey 15, 54 Del. 15

WILMINGTON GENERAL HOSPITAL, a corporation of the State of

Delaware, Defendant Below, Appellant, v. Darius M. MANLOVE, Administrator of the Estate of Darien E.

Manlove, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Oct. 2, 1961.

Rodney M. Layton of Richards, Layton & Finger, Wilmington, for appellant.

Joseph T. Walsh, Wilmington, for appellee.

SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and CAREY, Judge, sitting.

SOUTHERLAND, Chief Justice.

This case concerns the liability of a private hospital for the death of an infant who was refused treatment at the emergency ward of the hospital. The facts are these:

On January 4, 1959, Darien E. Manlove, the deceased infant, then four months old, developed diarrhea. The next morning his parents consulted Dr. Hershon. They asked whether the medicine they had for him was all right and the doctor said that it was. In the evening of the same day Mrs. Manlove took the baby's temperature. It was higher than normal. They called Dr. Hershon, and he prescribed additional medication (streptomycin), which he ordered delivered by a pharmacy.

Mrs. Manlove stayed up with the child that night. He did not sleep. On the morning of January 6th the parents took the infant to Dr. Hershon's office. Dr. Thomas examined the child and treated him for sore throat and diarrhea. He prescribed a liquid diet and some medicine.

When Mr. Manlove returned home that night, the baby's condition appeared to be the same. His temperature was still above normal, and again he did not sleep during the night.

On the morning of January 7th (a Wednesday) his temperature was still above normal--102. Mr. and Mrs. Manlove determined to seek additional medical assistance. They knew that Dr. Hershon and Dr. Thomas were not in their offices on Wednesdays, and they took their infant to the emergency ward of the Wilmington General Hospital.

There is no real conflict of fact as to what occurred at the hospital. The parents took the infant into the reception room of the Emergency Ward. A nurse was on duty. They explained to the nurse what was wrong with the child, that is, that he had not slept for two nights, had a continuously high temperature, and that he had diarrhea. Mr. Manlove told the nurse that the child was under the care of Dr. Hershon and Dr. Thomas, and showed the nurse the medicines prescribed. The nurse explained to the parents that the hospital could not give treatment because the child was under the care of a physician and there would be danger that the medication of the hospital might conflict with that of the attending physician. The nurse did not examine the child, take his temperature, feel his forehead, or look down his throat. The child was not in convulsions, and was not coughing or crying. There was no particular area of body tenderness.

The nurse tried to get in touch with Dr. Hershon or Dr. Thomas in the hospital and at their offices, but was unable to do so. She suggested that the parents bring the baby Thursday morning to the pediatric clinic.

Mr. and Mrs. Manlove returned home. Mrs. Manlove made an appointment by telephone to see Dr. Hershon or Dr. Thomas that night at eight o'clock.

At eight minutes past three o'clock in the afternoon the baby died of bronchial pneumonia.

The foregoing facts are taken mainly from the deposition of the plaintiff.

Plaintiff, as administrator, brought suit against the hospital to recover damages for wrongful death. The complaint charged negligence in failing to render emergency assistance, in failing to examine the baby, in refusing to advise the interne about the child or permit the parents to consult him, and in failing to follow reasonable and humane hospital procedure for the treatment of emergency cases. Defendant answered denying negligence and averring that, pursuant to its established rules and community practice, plaintiff was advised by its employee that it was unable to accept the infant for care.

Discovery proceedings were taken by both parties, eliciting the facts set forth above. Defendant then moved for summary judgment, and attached an affidavit from the nurse on duty when the infant was brought to the hospital. Her statement concerning the refusal of treatment is:

'I then told Mr. and Mrs. Manlove that the rules of the hospital provided that in such cases, where a person is under attendance and medication by a private doctor, and there is no frank indication of emergency, no treatment or medication may be given by doctors employed by the hospital until the attending doctor has been consulted.' [Emphasis supplied.]

The issues made by the parties below were in effect two:

1. Whether the hospital was under any duty to furnish medical treatment to any applicant for it, even in an emergency;

2. Whether the existence of an apparent emergency was a material fact in dispute.

The holding of the court below may be summarized as follows:

1. The hospital is liable for refusal to furnish medical treatment in an emergency because it is a quasi-public institution, being the recipient of grants of public funds and of tax exemptions.

2. There was some evidence of an apparent emergency because (1) of death following in a few hours, and (2) of the child's symptoms as recited by the nurse.

Hence the court denied the motion. The hospital appeals.

We take a somewhat different view of these questions from that of the learned judge below.

First, as to the status of the defendant hospital.

It was assumed by both parties below that the hospital was a private hospital and not a public one--that is, an institution founded and controlled by private persons and not by public authority. The trial court disagreed, finding a quasi-public status in the receipt of grants of public money and tax exemptions. See, for example, the Act of 1959 (52 Del.L. c. 159) granting certain hospitals, including defendant, the sum of $550 per bed; and the act authorizing the Levy Court of New Castle County to appropriate public funds to certain hospitals, including defendant, for the care of indigent persons. 9 Del.C. §§ 1801-1806. For the exemption of its property from county taxation see 9 Del.C. § 8103.

Hence, the court concluded, liability may be imposed on the defendant in an emergency case.

We are compelled to disagree with the view that the defendant has become a public (or quasi-public) hospital. It is admitted (although the record does not show it) that it is privately owned and operated. We find no dissent from the rule that such a hospital is a private hospital, and may, at least in the absence of control by the legislature, conduct its business largely as it sees fit.

The question of public or private status has frequently arisen in suits by a physician to compel the hospital to admit him to the use of its facilities. See annotation at 24 A.L.R.2d 850, 854. The cases uniformly hold that the receipt of public funds and the exemption from taxation do not convert a private hospital into a public one. See the following cases: Levin v. Sinai Hospital, 186 Md. 174, 46 A.2d 298 (supported in part by public funds); Van Campen v. Olean General Hospital, 210 App.Div. 204, 205 N.Y.S. 554, affirmed 239 N.Y. 615, 147 N.E. 219 (although exempted from taxation); West Coast Hospital v. Hoare, Fla., 64 So.2d 293 (grants of public funds); Edson v. Griffin Hospital, 21 Conn.Sup. 55, 144 A.2d 341 (a private hospital is one founded and maintained by private persons and the granting of state and municipal aid does not make it a public hospital).

The rule has even been applied to a county-owned hospital if leased to and operated by a private corporation. Akopiantz v. Board of County Commissioners, 65 N.Mex. 125, 333 P.2d 611.

Moreover, the holding that the receipt of grants of public money requires the hospital to care for emergency cases, as distinguished from others, is not logical. Why emergency cases? If the holding is sound it must apply to all the hospital services, and that conclusion, as we shall see, is clearly unsound.

Plaintiff attempts to build an argument upon 9 Del.C. § 1806, requiring the Levy Court of New Castle County to appropriate $10,000 to the defendant hospital for medical care for indigent persons suffering from contagious diseases. Subsection (b) provides that the hospital 'shall admit and care for' such persons.

Plaintiff argues that this is a recognition of the status of the defendant as a public hospital. On the contrary, it is no more than a condition attached to the gift; or at most a regulation of certain special cases of disease affecting public health. There is no doubt that medical care is directly related to public health and is therefore an appropriate subject of legislative regulation; but the provision in subsection (b) only emphasizes the absence of any other provision requiring the hospital to admit any one.

We are of opinion that the defendant is a private and not a public hospital, in so far as concerns the right of a member of the public to demand admission or treatment.

What, then, is the liability of a private hospital in this respect?

Since such an institution as the defendant is privately owned and operated, it would follow logically that its trustees or governing board alone have the right to determine who shall be admitted to it as patients. No other rule would be sensible or workable. Such authority as we have found supports this rule.

'A private hospital owes the public no duty to accept any patient not desired by it, and it is not necessary to assign any reason for its refusal to accept a patient for hospital service.' 41 C.J.S. Hospitals § 8, p. 345.

To the same effect is 26 Am.Jur. 'Hospitals and Asylums', p. 593.

In Birmingham Baptist Hospital v. Crews, 229 Ala. 398, 157 So. 224, 225, it appeared that after giving a child emergency treatment for diptheria the hospital refused her admission because its regulations did not permit the admission...