#### Helen D. Ward, Plaintiff, *v.*The St. Vincent’s Hospital, Defendant.

(Supreme Court, New York Trial Term,

March, 1898.)

Charitable hospital — A pay patient burned by a hot-water bag — Duty of the hospital in selecting nurses.

The proof, made in an action, tended to show that the defendant was a hospital conducted for public charitable purposes and that, although accepting pay patients, it used all such revenues wholly for the support of the institution, for which purpose they were insufficient. The plaintiff, a pay patient, was severely burned upon her leg, because, after an operation performed upon her and while she was still under the influence of anáesthetics, an under-nurse neglected to remove from the leg an uncovered hot-water bag. This nurse had been a probationary appointee and had still about sixteen months to serve in the hospital before she would .be entitled to-a diploma. The superintendent of nurses was entirely competent. The defendant had a verdict.

Held, that notwithstanding the fact that the plaintiff was a pay patient, the action was not one upon contract, but sounded in tort.

That, the defendant was only liable for negligence in its original selection of servants, was not liable for the subsequent -act of a servant, unless knowledge of her unfitness had been brought home to the corporation and that this rule was alike applicable to all patients whether they paid or not

*Quaere,*whether a charitable hospital is liable, in the matter of selecting nurses, beyond the selection of the head nurse.

*92Motion to get aside a verdict and for a new trial.

A. I. Elkus and E. C. James, for motion.

Charles E. Miller and Austen G. Fox, opposed.

Cohen, J.

On the 20th day of February, 1894, the plaintiff entered the institution maintained by the defendant as a public charitable institution (Laws of 1848, chap. 319), on Eleventh and Twelfth streets, in the city of Hew York. On the afternoon of the following day she was put under the influence of ether for the performance of a “ slight ” operation by Dr., Lusk, who was her own private physician, as well as a visiting surgeon on defendant’s staff. The operation was successfully performed, and plaintiff, while still under the influence of the anesthetic, was carried to her room and there placed in a bed from which a hot, uncovered water bag had not been removed by the nurse in attendance. Thus her right leg was severely burned. The wound continued open, and she suffered great pain from the injury until the 21st day of December, 1896, when Dr. McBirney performed a surgical operation upon the leg and the wound healed. The usefulness of the limb still remains considerably impaired.

Before plaintiff became an inmate of the hospital, Mrs. Howland, a sister of the plaintiff, went there, entering by the Twelfth street side, a building described by her as the “ private pay patients’ ” department. She there made arrangements and paid to one of the sisters of charity, who were in charge of the hospital, $25 for the occupancy by the plaintiff of a private room and for medicines for the term of one week. At the same time, Mrs. Howland gave expression to the fears of the plaintiff and her family about, the dangers of anesthetics, and requested that the plaintiff be supplied with a skillful, experienced trained mirse, and was told by one of the Sisters that the very best skilled nurse would be furnished to,, aiid the very best care taken of, the plaintiff. The charge for the nurse was then agreed upon, at $3 a day, which was subsequently paid. This arrangement was reported to the plaintiff, who pursuant to it, entered the hospital, .where the events hereinbefore ■ recited .occurred.

. It further appeal’s, from the .evidence that, in addition t.o the room, medicine and nurse, which were, paid for by the plaintiff, •. she received the other accommodations which the hospital afforded, including the attendance of Dr. Hughes, the house surgeon, and of *93Miss Sanborn, the superintendent of nurses at St. Vincent’s Hospital. Ho question is made of the competency or still of the superintendent, but some evidence is introduced to show that the nurse, by whose gross carelessness the hot-water bag was left in the plaintiff’s bed, had entered the institution in June, 1893; was placed on a month’s probation, and in July began a course of instruction which would terminate in two. years, at which time she would be entitled to a diploma. Miss Sanborn testified that she had instructed the nurse in the use of hot-water bags and had previously employed her as attendant nurse in serious surgical cases, where she had given entire satisfaction.

At the end of the whole case the court directed a verdict in favor of the defendant.

The learned counsel for the plaintiff insist that such direction was error, on the ground that the defendant was guilty of the breach of an express contract, and is, therefore, liable for that breach as well as for a breach of duty at common law; and maintains further that, even if there had been no contract, the defendant is liable on the ground that the defendant, although a public charitable institution, cannot claim the immunity given to such institutions in this case, as the plaintiff was a pay patient. Furthermore, that the public policy granting this immunity is unsound, and the basis upon which it reste insecure, and lastly, that in the selection of the nurse there was evidence of negligence which should have been submitted to the jury.

The counsel for plaintiff with some ingenuity has, in the complaint, in the evidence offered and in the brief submitted laid almost equal stress upon the breach of an express contract by the defendant as upon the breach of duty imposed by law; but no ingenuity can alter the cause of action here. It cannot be doubted that there would be a cause of action on the facts here presented independent of any contractual relation, if the plaintiff established negligence sufficient to hold the defendant. Even assuming that the defendant had power to make the contract, it was not necessary to rely upon and prove it. This furnishes the test. Turner v. Stallibrass, (1898), 1 Q. B. 56; Schick v. Fleischhauer, 26 App. Div. 210. Of course, evidence of the contract was properly admissible here as is proof of the payment of fare in cases of a passenger sustaining personal injuries by reason of the negligence of the carrier, but such evidence does not change the cause of action. This, then, is an action in tort.

*94What is the duty owed by the defendant to the plaintiff, is the next question to be considered. The defendant, the hospital, is a public charitable institution. It was doing no business for profit, and the money it received from patients like the plaintiff went to the support of the institution, and was far from sufficient to meet its expenses without contributions of charitably disposed individuals. Its affairs were managed by Sisters of Charity, who freely gave constant and faithful service; there were no stockholders to whom dividends, even.if earned, could have been paid.

As I read the cases, such a defendant is only liable for negligence in the original selection of its servants; having fulfilled that duty, it is not liable for the subsequent act of such servant, however careless or negligent, unless previous knowledge of unfitness has been brought home to the corporation. This limitation is founded upon public policy, upon which the very doctrine of *respondeat superior*itself may be said to be founded. Wood on Master and Servant, § 277. Much may be said against the soundness of this principle, and whether it would not be wiser to hold even public charitable institutions to a higher- degree of care. But in this country it has been settled that for the promotion of works of humanity, and for the greater good of the greater number, that this is a sound public policy. McDonald v. General Hospital, 120. Mass. 432; Boyd v. Insurance Patrol of Philadelphia, 113 Penn. St. 269; Joel v. Woman’s Hospital, 89 Hun, 73.

The opinions in the case -of Glavin v. Rhode Island Hospital, 12 R. I. 411, contain many expressions ant-agonistic to. this limitation of liability, and, to the' wisdom of the policy which underlies it, but in its decision the court holds the corporation liable only for care in the selection of its servants.

' Some confusion is occasioned by reason of the citation in the McDonald case, *supra,*of Holliday v. St. Leonard, 11 C. B. (N. S.) 192, which exempted á grosi-public corporation from liability for the negligent act of its servants, and which case' was subsequently overruled in Coe v. Wise, L. R., 1 Q. B. 711; Mersey Docks Trustees v. Gibbs, L. R., 1 H. L. 93. But no English case has been cited, nor have I been able to find any, which departs from the American rule affecting a corporation engaged only in public charity, and doing no business for profit, as is concededly true of the defendant in this case.

It is further contended that since the plaintiff was a pay patient the rule is. not the same as heretofore expressed, but in the Glavin case, *supraj*the plaintiff was a pay patient, and an examination *95of the record in the Joel case, *supra,*will also show that the plaintiff was not a free or charity patient. Indeed, the Joel case is almost precisely like the one under consideration, and, being a decision of the General Term of the Second Department of this court, is conclusive upon me. Moreover, it has been expressly held in. another class of cases that a charitable institution does not waive its exemptions because it charges some patients who are able to pay. People ex rel. N. Y. Hospital v. Purdy, 58 Hun, 386; 126 N. Y. 679; Matter of Will of Vassar, 127 id. 1; in which case, at page 15, the McDonald case is cited with approval.

The final contention of the plaintiff is that there was some evidence of negligence in the selection of the nurse assigned to the plaintiff. .The answer to this is that it may be doubted,; under the cases above cited, whether the defendant’s liability extended beyond the selection of a competent head of the school of nurses connected with the defendant. It will he conceded, or if not, the ¡evidence is absolutely conclusive that Miss. Sanborn, the superintendent of the training school for nurses had many years’ experience as a subordinate nurse, some years as the head of nurses both at Hew York Hospital and the Skin *&*Cancer Hospital, and for about two years had charge of the nurses' of the defendant. Her manner on the stand and her testimony convinced me that she was a woman of unusual skill and experience in her profession, and of remarkable executive ability. She had fully instructed the nurse whose act is here complained of in the use of water bags and the necessity for covering them. The assistant had been employed in the abdominal ward where operations of " a much graver character than that to which the plaintiff was subjected were common without complaint or mishap. It seems from the nature of the act here complained of that the variest tyro in nursing would have known better than to have been so grossly negligent as was the nurse in charge of the plaintiff. It cannot have been from want of training or knowledge, because any person of average age and average intelligence, without any special training, would know the dangerous character of such an act. It was a single act of thoughtlessness or forgetfulness. Therefore, where is the evidence of causative negligence of the defendant corporation with regard to the selection of the particular nurse, even assuming its duty extended beyond Miss Sanborn, as the head of the nursing department? It follows from these views that the direction in favor of the defendant was right, and the motion to set aside the verdict and for a new trial *96must be denied, however deeply one’s sympathies may be aroused by the misfortune which has befallen the plaintiff, who doubtless has a good cause of action against the nurse who was the wrongdoer, but not against St. Vincent’s Hospital.

Motion denied.