Messina v. Societe Francaise De Bienfaissance Et D'Assistance Mutuelle De La Nouvelle Orleans , 170 So. 801 ( 1936 )

^* Rehearing denied January 11, 1937. This is an appeal by the Societe Francaise De Bienfaissance et D'Assistance Mutuelle de la Nouvelle Orleans (to which we shall hereafter refer as the French Hospital) and its insurer, the United States Fidelity Guaranty Company, from a judgment of the civil district court in favor of the plaintiff, Rose Messina, for $2,500, against both appellants in solido.

The suit is one for damages, ex delicto, and is based upon the alleged incompetency and negligence of Richard Young, an externe, connected with the French Hospital, in the administration of treatment, prescribed by plaintiff's doctor, and known as hypodermatoclysis.

In her original petition plaintiff charged that the French Hospital was operated for revenue; that she was a patient in the institution, paying the usual hospital charges; that on February 27, 1934, she was operated on by her physician, Dr. Graffagnino; that following the operation an externe named Young gave her a hypodermatoclysis, which consisted of the injection of a fluid in her thighs; that the liquid used in this treatment was too hot, causing burns on her legs, with consequent suffering, loss of income from her profession as a trained nurse, and expenses, for which she claimed $30,755; that Young, whose negligence caused her injury, acted for the hospital as "vice principal" and not as the agent of plaintiff's doctor in the administration of the hypodermatoclysis, which treatment was given in pursuance of the hospital undertaking to furnish all necessary treatment for its patients.

To this petition defendants filed exceptions of no right or cause of action based upon alleged insufficiency of allegation.

The exceptions were maintained and plaintiff allowed to amend, which she did by filing a supplemental petition in which the allegations held to be essential were incorporated. This supplemental petition was filed on the 15th day of March, 1935, which was more than one year after her injuries were sustained. Defendants then filed a plea of prescription of one year, which was apparently overruled. The case was then tried on its merits by a jury, which, by a vote of nine to three, brought in a verdict for plaintiff for $2,500.

We will first consider the exception of no cause of action. In the case of Congdon v. Louisiana Sawmill Company, 143 La. 209,78 So. 470, 471, in which the plaintiff sought to hold the defendant responsible for the negligent and unskillful act of a physician employed by defendant to treat injured and sick employees, it was said: "Under the decisions, the employer can be made to respond in damages in such a case only in the event that he fails to exercise ordinary care in the selection of the physician, or in the event that he derives a pecuniary profit out of the fund employed for hospital or medical purposes."

In the case of Jordan v. Touro Infirmary, 123 So. 726, this court, quoting freely from the Congdon Case, held that the doctrine of respondeat superior, as expressed in our law by article 2320 of the Revised Civil Code, has no application to hospitals which have not been established for making money or profit, but have benevolent and charitable purposes, notwithstanding the fact that certain classes of patients were required to pay for hospital accommodations and medical attention.

The basis of the argument on the exception of no cause of action is that, since the original petition did not charge that the hospital was operated for profit, but for revenue, which is said to be a term of entirely different import, and because it failed to charge that the hospital authorities had not exercised due care in the selection of its externe, Dr. Young, or that he was incompetent or that he was an agent or employee of defendant, it was fatally defective, and that therefore the petition to amend was improperly allowed because a petition which fails to set forth a cause of action is no petition at all, and therefore there is nothing to amend. Tremont Lumber Company v. May,143 La. 389, 78 So. 650, and West Orleans Beach Corporation v. Martinez,180 La. 31, 156 So. 165.

In answer to this contention it is sufficient to say that the Tremont Lumber Company v. May and West Orleans Beach Corporation v. Martinez cases were expressly overruled in Reeves v. Globe Indemnity Company, 185 La. 42, 168 So. 488, 491.

The plea of prescription is based upon the following language found in Tremont Lumber Company v. May, supra: "Where a cause of action is stated for the first time in a supplemental or amended petition, the filing of the supplemental petition must be considered to be the beginning of the suit; the suit must be considered as dating only from such filing, and not from the filing of the original petition."

The supplemental petition in this case having been filed more than one year after the date of the plaintiff's alleged injuries, which form the basis of this suit, her claim is said to be prescribed. The statement in the Tremont Case concerning the effect of the filing of a supplemental petition which, for the first time, sets forth a cause of action, is a corrollary of the holding in this and the West Orleans Beach Corporation Case to the effect that a petition which fails to state a cause of action cannot be amended. See Terzia v. Grand Leader, 176 La. 151, 164,145 So. 363. In Reeves v. Globe Indemnity Company, supra, it was held that prescription was interrupted by the filing of a petition which failed to state a cause of action: "It is our opinion that the original petition of the plaintiff, even though it be held to imperfectly set forth a cause of action ex de licto, sufficiently apprised the defendant of the nature of the plaintiff's claim or demand, so as to have the effect of interrupting prescription."

The plea of prescription is not well founded and must be overruled.

Hospitals with respect to their liability to patients for malpractice have been divided into three classes — public, private eleemosynary, and strictly private. Concerning the first class, it has been universally held that such institutions being created and owned by the state or its subdivisions — state hospitals, city hospitals, reformatories, etc. — are governmental agencies created for the purpose of discharging a public duty, in that they protect society from unfortunate individuals and those deficient in mental capacity or morals; consequently the rules applicable to municipal corporations and public offices in general are applied. The doctrine of respondeat superior has no application to such institutions.

With regard to the second class, that is to say, those institutions which are administered by private individuals dispensing public charity, many authorities hold to the doctrine of immunity from liability for tort upon somewhat different grounds, however, chiefly because of what is known as the "trust fund doctrine," to the effect that the funds of such institutions are not to be diverted to other than charitable uses. To this class of hospitals, by what may be said to be the weight of authority, the doctrine of respondeat superior does not apply. The fact that a hospital which has been organized for benevolent and charitable purposes makes a charge for a certain class of its patients on a per diem basis does not affect its character as a charitable institution or take it out of the rule so as to make it liable for negligent acts of its staff, nurses, internes, externes, etc., even as to claims made by pay patients where its entire receipts are devoted to benevolent and charitable purposes. Jordan v. Touro Infirmary, supra.

The third class of hospitals — private ones conducted for profit — are liable to patients and to strangers for the negligence of their servants. Ruling Case Law, Verbo "Hospitals," volume 13, page 957 et seq., Corpus Juris, Verbo "Hospitals," volume 30, page 465 et seq.

We are relieved of the necessity of determining the proper classification of the French Hospital, for the moment at least, because of the fact that one of the codefendants in this case, the United States Fidelity Guaranty Company, which has undertaken, for a consideration, to underwrite the liability of the French Hospital for claims made against it, such as this one, cannot avail itself of defenses based upon public policy concerning governmental agencies for the discharge of public functions. Rome v. London Lancashire Indemnity Company (La.App.) 169 So. 132.

Turning our attention to a consideration of the question of negligence on the part of the employees of the French Hospital, the theory of plaintiff's suit is that the externe Young, who administered the hypo-dermatoclysis, was the servant of the defendant hospital for whose negligence or conduct it is liable. Our attention is called to our opinion in the Jordan Case, wherein we held that "a nurse furnished to patients in a hospital is not its servant, within the meaning of article 2320 of the Civil Code, while performing duties in the operation room under the orders of the surgeon, and therefore the hospital is not responsible for the errors and negligence of such nurse while so engaged." (Syllabus by the Court.) An analogy is sought to be drawn between the externe in this case and the nurse in the Jordan Case. We believe, however, that the Jordan Case is not apposite here, for the reason, in the first place, that the Touro Infirmary was held to be a charitable institution and, in the second place, the facts were different. It was there held that a nurse, though in the regular employ of a hospital and ordinarily its servant, is the servant of the surgeon whom she assists in the performance of an operation pro hac vice, and, where the surgeon has been engaged by a patient, the patient cannot recover for the negligence of the nurse. In other words, it is the temporary service of the nurse in the operating room under the direction and supervision of the surgeon in charge to whose orders and directions she must submit that takes her out of character as an employee of the institution which for the time being has no authority over her or her actions.

The following quotation from Baudry-Lacantinerie (3d Ed.) vol. 15, p. 617, which is found in the Jordan Case, is very significant: "Thus a master is not responsible for the damages caused by the one who is habitually his employee, when the latter, although still in the exercise of his functions and using the things belonging to his master, acts in the premises, under the orders of the third party."

In the case at bar Young had been selected by the French Hospital authorities and was a member of its staff of employees. Dr. Graffagnino, though associated with the French Hospital as one of its medical staff, was engaged as the personal physician of Miss Messina to perform a very serious surgical operation. Upon the completion of the operation, which was about 9:30 in the morning on February 27, 1934, her condition proved to be precarious. She was removed from the operating room and returned to her private room in the hospital, Dr. Graffagnino giving instructions to whom, it is not clear, but perhaps to the nurse who had assisted in the operation, to have a hypoder-matoclysis administered every eight hours. The first injection which was given Miss Messina was in the axilla region near her breast about 10:30 the same morning and was without harmful effect. Young did not give this treatment, but he did administer the second hypodermatoclysis in the evening of the same day. Other treatments were given by some other externe or perhaps a nurse all without harmful results; therefore the only treatment given by Dr. Young was the one which resulted in the sores on plaintiff's legs. Dr. Graffagnino was not present when the treatments were administered, and, beyond having ordered them, had nothing whatever to do with their execution. It will be seen that there is no similarity in the facts of this case to the facts in the Jordan Case so as to take Young out of character as a servant of the French Hospital and constitute him, pro hac vice, the servant of Dr. Graffagnino. We conclude on this point that Young was the servant of the French Hospital for whose negligence, so far as its insurer is concerned, it is liable.

The negligence imputed to externe Young consists in the charge that the solution used in the hypodermatoclysis was too hot and, instead of being blood heat or 100 degrees Fahrenheit, as it should have been, it is claimed that the temperature of the liquid was much higher and sufficient to burn the tender flesh of the plaintiff. Much is made of the fact that several treatments were given plaintiff by others without the development of any abnormal symptoms or unfortunate results, whereas the only treatment given by Young was followed by the development of sores of which the plaintiff complains. We do not believe this fact to be as significant as counsel contends. The record does not indicate that any of the other treatments given the plaintiff were in the same locality as the one administered by Young, and it may be that the flesh in the inner part of the thighs is more susceptible to injury than in the other parts of the body where the other treatments were given, notwithstanding the fact that the thighs are accepted as the proper locality for such treatments according to the best technique. Moreover, it may be that Young's connection with the unsuccessful treatment was a pure coincident. But, whatever be the truth of the matter, this circumstance cannot outweigh the positive testimony concerning the ability and qualifications of externe Young and the care exercised in giving the treatment. There was present at the time besides Young, Mrs. Chassanoil, a nurse. The temperature of the fluid was tested twice before the injection of the fluid, once by Mrs. Chassanoil and once by Young, and once by Young after Miss Messina had complained, following the injection, that the liquid was too hot. The test made here, which is shown to be the standard practice, consisted in allowing some of the fluid to flow out of the needle on the wrist of the party testing it to determine its temperature. Miss Messina herself is the only one who testified that the liquid was too hot. She may have mistaken the sensation created by the failure of the tissues to absorb the liquid, a result which the record shows some time follows hypodermatoclysis, for heat. Young was, according to the uncontradicted testimony in the record, fully competent to administer this treatment. He was then a senior medical student at Louisiana State University, from which institution he graduated with honor four months later. As a matter of fact, this treatment is very frequently given by trained nurses, whose training and experience is not nearly as extensive as that of a senior in a medical college, according to Dr. Graffagnino's opinion.

Dr. Graffagnino testified that the sores on the plaintiff's legs might have been caused by the injection of superheated fluid, but, in his opinion, they were due to necrosis of the tissues caused by the lowered vitality of the patient.

The case of Foye v. St. Francis Sanitarium, 2 La.App. 305, is remarkably similar to the case at bar. In that case, Miss Lottie Foye sued the St. Francis Sanitarium and Training School for Nurses for $10,000 as damages because of the alleged negligence of a nurse employed in that institution who administered to plaintiff, while a patient in the hospital, a hypodermatoclysis treatment which was "too hot at the time it was administered" and resulted in a severe burn which caused her great pain and left a permanent injury from which she limps. The solution had been injected in the thigh, as in this case. Excerpts from the testimony of three doctors are incorporated in the opinion in that case, Dr. Snelling, under whose direction the treatment was administered, Dr. Graves and Dr. O'Donnell. Each of these physicians declared that sloughing or abcesses sometime follows hypodermatoclysis. Dr. Graves declared that this sloughing was "due to what we call necrosis; where fluid is put into the tissues and the heart action is rather bad, circulation is bad, and it is not picked up fast enough to be carried away. The tissues don't empty themselves before the blood vessels block up, and we have what is known as cell death, or death of cells in that area, called necrosis. * * *" Dr. O'Donnell testified to the same effect. The opinion of Dr. Graves, which is typical of the quoted testimony of the other two physicians as it appears in the printed volume of our reports, was read to Dr. Graffagnino, and he was asked whether the result of the hypodermatoclysis administered by Young, in this case, could be explained upon the same ground. His reply was in the affirmative, though he frankly admitted that the same result might have followed the introduction into the plaintiff's leg of a superheated fluid and that, in this particular case, he could not say whether the result was due to the fluid being too hot or the tissues being necrosed. The conclusion reached in the Foye Case was that the plaintiff should not recover. We conclude that the plaintiff has failed to prove negligence on the part of the hospital employees. It follows that she cannot recover as against the defendant insurer. Nor can she recover against the codefendant, the French Hospital, for, whether it be a private hospital or an eleemosynary institution, the reasons which prevent her recovery as against the hospital's insurer are sufficient to defeat her claim against the hospital, whatever be its status.

For the reasons assigned, the judgment appealed from is annulled, avoided, and reversed, and it is now ordered that there be judgment herein in favor of the defendants Societe Francaise De Bienfaissance et D'Assistance Mutuelle de la Nouvelle Orleans and the United States Fidelity and Guaranty Company, dismissing the plaintiff's suit at her cost.

Reversed.