Bowditch v. French Broad Hospital, Inc.

*171 BbogdbN, J. Is a private hospital, operated for gain, liable in damages for the act of a nurse, wlm induces a patient to conclude that bis physician has discharged him from further treatment? The plaintiff was a patient in the hospital of defendant. He was under the care and treatment of his own physician. The hospital, therefore, was not liable for the acts of the physician, but the hospital furnished a nurse who was required to obey the instructions and orders of the doctor. The plaintiff, having information from the physician, that his injuries were not serious, was anxious to return to his home, but was unwilling to do so unless he was discharged by the physician. He states in his testimony, “After I decided to go I asked the nurse to get in touch with Dr. Clark.” I said: “I wish you would find Dr. Clark and see if he will let me go.” The nurse, according to' plaintiff’s testimony, informed the patient that if the doctor 'ordered him discharged, she would have his hospital bill sent to his room. Shortly thereafter the nurse returned to the room with another lady, who' presented the hospital bill and other valuables which the plaintiff had left in the care of the hospital, and thereupon the plaintiff paid the bill and left the hospital. It seems that the plaintiff did not ask the nurse upon her return whether she had communicated with the doctor or whether the doctor had consented to his discharge, but he assumed that the physician had consented to his discharge by reason of the fact that the bill was presented. It developed that the nurse had not communicated with the physician and that he had not consented to the discharge. A private hospital, operated for profit, is held to the duty of ordinary care in the treatment and protection of patients, and is responsible for injuries resulting from failure to perform such duty. Johnson v. Hospital, 196 N. C., 610; Penland v. Hospital, 199 N. C., 314. The liability of hospitals for the negligence of nurses employed or furnished by the hospital, is a question of law which has created widely divergent theories. For instance, the Court of Appeals of New York, in the case of Schloendorff v. Society of New York Hospital, 105 N. E., 92, in an opinion by Cardoza, J., stated the doctrine in these words: “It is true, I think, of nurses, as of physicians, that, in treating a patient they are not acting as the servants of the hospital. The superintendent is a servant of the hospital; the assistant superintendent, the orderlies, and the other members of the administrative staff are servants of the hospital. But nurses are employed to carry out the orders of the physicians, to whose authority they are subject. The hospital undertakes to procure for the patient the services of a nurse. It does not undertake, through the agency of nurses, to render those services itself. The reported cases make no distinction in that respect between the position of a nurse and that of a physician.” Subsequently, the same Court *172 considered the question in the case of Renouf v. New York Central R. Co., 173 N. E., 218. The opinion was written by Pound, J., who, in discussing the status of the nurse, says: “They are regarded as especially equipped to render professional services to patients when called on to do so rather than as workmen. They are grouped with doctors and lawyers rather than with cooks and chambermaids. This rule of relationship between employer and nurse is not limited in its application to charitable corporations, although it has often been applied to relieve such corporations from liability for the negligent acts of physicians and nurses employed by them in the treatment of patients. It rests on the fact that one who employs such a nurse to take care of an injured person undertakes, not to treat the employee through the agency of the nurse, but to procure a nurse for the special purpose for which her services are required. This is all that the railroad company did in this case. It procured the nurse, but it did not act through her in caring for the patient. She was left to act on her own responsibility under the general direction of the physician in charge of the case. Although she was, in a general sense, employed by the railroad company, she was not its employee. She occupied the position of an independent contractor following her own calling rather than that of one in the service of the employer. The fact that she was employed by the railroad company rather than the hospital in no wise alters her status.” Phillips v. Buffalo General Hospital, 146 N. E., 199. The Court of Louisiana takes the same view of the question as the Court of Appeals of New York. See Jordan v. Touro Infirmary, 123 Southern, 720. Many authorities are cited to support the opinion. The courts of Alabama, Oklahoma, Idaho and Kentucky adopt the general theory that nurses in a hospital are employees and not independent contractors, and hence the hospital is liable to a patient who suffers injury through the negligence of the nurse. Norwood Hospital v. Brown, 122 Southern, 411; Birmingham Baptist Hospital v. Branton, 118 Southern, 741; Skidmore v. Oklahoma Hospital, 278 Pacific, 334; Hayburst v. Boyd Hospital, 254 Pacific, 528; Hicks, Admr., v. Harlan Hospital, 21 S. W. (2d), 125. See, also, 22 A. L. R., 341; 39 A. L. R., 1431. A decision, determining the merits of the case now under consideration, does not require this Court to adopt either theory of liability applied in the foregoing cases from other jurisdictions. In the case at bar the plaintiff selected his own physician. Therefore, the hospital assumed no liability and was charged with no- responsibility for the medical treatment of plaintiff or the time when the relationship of patient and physician should be terminated by discharge of the patient. Nor was the hospital, under the circumstances, charged with any duty in procuring a termination of the relationship of patient *173 and physician. Hence, if no- such duty was imposed upon the defendant, and if it did not assume the performance of such duty, then there is no negligence lipón its part, and consequently, no liability. The record discloses that the patient requested the nurse to secure for him certain information from his physician. Assuming that the nurse negligently failed to' do so, it is apparent that she was acting upon the request of plaintiff in a matter with which the defendant hospital was not concerned. In apt time the defendant requested the court to charge the jury as follows: “The court charges you that if you find from the evidence, and by its greater weight, that the plaintiff went to the French Broad Hospital, and employed Dr. H. S. Clark as his surgeon, who assumed the charge of the case, then the court charges you that the relationship of physician and patient was established. And if you further find from the evidence, and by its greater weight, that Miss Betty McGuire was a student nurse in the French Broad Hospital and was assigned to the plaintiff’s case for the purpose of carrying out the orders and instruction of Dr. Clark in the treatment and care of the plaintiff, and that she undertook, at the instance of the plaintiff, or at the suggestion of the plaintiff, or upon her own motion in behalf of the plaintiff to procure the consent of Dr. Clark to the plaintiff’s returning home, that the court charges you that the said Betty McGuire was the agent of the plaintiff, and not the agent of the defendant hospital, and that her act in so doing was not the act of the hospital, and the hospital is not bound by her said act, and the defendant hospital would not be liable for her act, and you will answer the first issue, “No.” The court declined to so instruct the jury, and the exception of the defendant to such refusal is error, and a new trial is awarded. New trial.