Maxim KOPRIVICA, Appellant, v. BETHESDA GENERAL HOSPITAL, a corporation, Respondent.
No. 51784.
Supreme Court of Missouri, Division No. 2.
Dec. 12, 1966.
Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 9, 1967.
408 S.W.2d 84
On plaintiff‘s evidence we are forced to the conclusion that he was guilty of contributory negligence as a matter of law, and that defendant‘s motion for a directed verdict on that ground at the conclusion of the evidence, should have been sustained. We find that the facts are such as to permit no other reasonable conclusion. In this view of the case, the specific points of error raised by appellant become immaterial.
The judgment is affirmed.
All concur.
Biggs, Hensley, Curtis & Biggs, Ward Fickie, Frederick E. Hines, St. Louis, for plaintiff-appellant.
Robert W. Wilson, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
BARRETT, Commissioner.
The appellant Maxim Koprivica alleged that in September 1964 while a patient in Bethesda General Hospital and “not aware of what he was doing, (he) attempted to leave said hospital by sliding down some blankets tied together * * * slipped and fell to the ground below, suffering injuries” entitling him to damages of $50,000.
In response to this pleading the hospital moved for summary judgment alleging that it was a general hospital, “a pro forma corporation not organized for pecuniary profit and is a benevolent, scientific, education, non profit and eleemosynary institution,” and that “(b)y reason of the foregoing, defendant is immune from suit or damages based upon its alleged torts, which immunity the defendant now claims.” After a hearing on the motion for summary judgment, the hospital introducing its 1892 and 1899 records of pro forma incorporation “to establish and maintain hospitals, clinics, laboratories, training schools and all other activities necessary for the scientific care and treatment of the sick and injured,” the court sustained the motion, entered judgment for the hospital and the plaintiff Koprivica has perfected an appeal to this court.
The appellant recognizing that in similar if not identical situations this jurisdiction has adopted and adhered to the so-called “charitable immunity” doctrine urges because of “change in conditions and circumstances,” including the recently enacted medicare legislation, that this court should re-examine “public policy” and prospectively abrogate “the rule of charitable immunity for voluntary nonprofit hospitals.” In support of his position the appellant points to twenty jurisdictions and their cases in which the immunity doctrine once prevailed but has now been abrogated. Other cases, law review articles, learned treatises and journals are referred to and it is said that only five states, including Missouri, now adhere “to the doctrine of total immunity” and upon all these considerations it is urged that this court “join the mainstream of current thought in this field and establish a public policy which says hospitals must exert an ordinary standard of care in treating their paying patients or be held liable for failure to do so.” In support of his contentions the appellant has lodged in this court brochures dealing with health and hospital insurance, statistical data as to hospital charges, income and losses and also journals of the American Hospital Association.
One of the difficulties with the presentation of all this data is that it was neither received nor offered in evidence and was not of course officially before the trial court. Some of this material, particularly the learned articles, is referred to in a number of the cases in which the doctrine was repudiated, as for example the recent cases of Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193, and Adkins v. St. Francis Hospital of Charleston, (W. Va.), 143 S.E.2d 154, and it may be that in one sense this court could judicially know some of these things. But as stated, there was no offer of proof by the plaintiff and the respondent hospital relying solely on its charitable immunity offered no countervailing evidence or statistical data and thus as to the basic attack upon the doctrine, even if an open question, this was not the traditional adversary proceeding in which every facet of the problem was before the court. On the motion for summary judgment in which the appellant tacitly joined, thinking no doubt that it was sufficient to abstractly attack the doctrine on principle, his only insistence was that the record show that Bethesda General Hospital had amended its corporate charter and was no longer a “pro forma corporation” (
In the circumstances of this record it is not necessary to prolong this opinion, virtually the same arguments and appeals were made as recently as 1961 in an attempt to persuade the court to abrogate the charitable immunity doctrine as to hospitals. The arguments and cases were reviewed at some length but the doctrine was again affirmed “primarily as a rule of public policy, in the absence of legislation and of an indicated contrary legislative intent.” Schulte v. Missionaries of La Salette Corp. of Mo., Mo., 352 S.W.2d 636, 639. Other relevant Missouri hospital cases including hospitals organized under
STOCKARD and PRITCHARD, CC., concur.
PER CURIAM:
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court.
EAGER, P. J., and DONNELLY, J., concur.
FINCH, J., concurs in result in separate concurring opinion filed.
CONCURRING OPINION
FINCH, Judge.
I concur in the result reached in this case by the majority opinion. The only evidence submitted to the trial court on defendant‘s motion for summary judgment consisted of documents in connection with incorporation of defendant as a pro forma decree corporation, plus documents disclosing that defendant has brought itself under the Not for Profit Corporation Act,
Appellant has filed in this court the “Source book of health insurance data 1964,” issued by the Health Insurance Institute, and portions of the August 1, 1964, August 1, 1965 and August 1, 1966 issues of the Journal of the American Hospital Association. None of these were presented to the trial court. Appellant asks this court, based on these documents, to abrogate the existing charitable immunity for hospitals and to
I write this opinion, concurring in result, to indicate that in my opinion we should, if and when the question is fully presented to us on appeal, carefully review the existing charitable immunity doctrine as applied to pro forma and not for profit hospitals.
Some of the material presented to us by appellant indicates that for the year 1965 approximately 96% of total hospital expenditures by Missouri voluntary not for profit hospitals was derived from patient revenue. It does not appear whether any of these expenditures were for capital items or whether all were for operating expenses. This may pose a question of whether paying patients should be required personally to bear the risk and burden of injury which may result from lack of proper care in order to benefit what may be a proportionately small percentage of persons who are receiving charitable care.
We should consider all such facts and other pertinent information relative to hospital operations, including the number and extent of charity patients of the hospital, a breakdown of the source of operating funds of the hospital, and perhaps whether the hospital carries liability insurance and pays for same as an operating expense. All such evidence first should be submitted to a trial court for its consideration.
I express no view as to what disposition this court should make of such a case. That should await a consideration of the record presented to us. I do, however, believe that we should consider the matter fully when and if it is presented to us on a proper record. I do not believe that we should take the position that we will leave this determination to the legislature. The doctrine is one established by the courts, not by the legislature, and if we ultimately should conclude that it should be changed or modified, we should so hold.