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decided: March 22, 1965.


Appeals from judgments of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1963, No. 4018, in case of Mary C. Flagiello and Thomas Flagiello v. The Pennsylvania Hospital, Marie Pierce and H. Robert Cathcart; and Mary C. Flagiello and Thomas Flagiello v. The Pennsylvania Hospital.


Stephen M. Feldman, with him Joseph G. Feldman, for appellants.

John J. Dautrich, with him Michael H. Malin, and White & Williams, for appellees.

Spencer G. Nauman, Jr., Spencer G. Hall, and Nauman, Smith, Shissler & Hall, for amicus curiae.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Jones.

Author: Musmanno

[ 417 Pa. Page 488]

Mrs. Mary C. Flagiello was injured in the Pennsylvania Hospital in Philadelphia under circumstances which, considering the nature of the legal problem before us, do not at present call for expatiation. It is enough to say that she avers that, through the negligence of two employees of the hospital, she was caused to fall, sustaining in the fall a fracture to her right ankle, and, that this injury, entirely unrelated to the ailment which brought her into the hospital originally, necessitated further hospital and medical care which subjected her husband to great medical expense and inflicted upon her pain and suffering as well as impairment of earning power. She and her husband, Thomas Flagiello, brought an action in trespass against the hospital and the two employees alleged to have been immediately responsible for the accident. The defendant hospital answered that it was an eleemosynary institution engaged in charitable enterprise and, therefore, not responsible in damages to the plaintiffs. The plaintiffs replied to the new matter, declaring that Mrs. Flagiello was not a charity patient but a paying patient in the hospital. The hospital moved for judgment on the pleadings and it was granted.*fn1

The plaintiffs then instituted an action of assumpsit against the hospital, stating that they had entered into a contract with the hospital whereby they were to pay $24.50 a day for hospital facilities and nursing

[ 417 Pa. Page 489]

    care, but that the hospital did not fulfill its obligations under the contract because it failed to provide reasonably fit and adequate care for the wife-plaintiff, as the result of which she sustained fresh injuries and her husband plaintiff was required to pay to the hospital $2,906.68 for medical care and maintenance.

The plaintiffs stated also that the defendant "carries public liability insurance which covers the present claim and that at least 96% of all state aided hospitals in Pennsylvania carry such public liability insurance. Further, defendant's charitable operations are supported mainly by state aid and from the fees paid by non-charitable patients rather than from private charitable contributions."

The defendant hospital moved for judgment on the pleadings, asserting that assumpsit did not lie and that "under the law of Pennsylvania, the existence of liability insurance or the fact that a patient is a paying patient is of no consequence in denying the eleemosynary nature of the institution."

The Court granted the motion, and plaintiffs have appealed in both cases, which have been consolidated for consideration here.

The hospital has not denied that its negligence caused Mrs. Flagiello's injuries. It merely announces that it is an eleemosynary institution, and, therefore, owed no duty of care to its patient. It declares in effect that it can do wrong and still not be liable in damages to the person it has wronged. It thus urges a momentous exception to the generic proposition that in law there is no wrong without a remedy. From the earliest days of organized society it became apparent to man that society could never become a success unless the collectivity of mankind guaranteed to every member of society a remedy for a palpable wrong inflicted on him by another member of that society. In 1845 Justice Storrs of the Supreme Court of Connecticut

[ 417 Pa. Page 490]

    crystallized into epigrammatic language that wise concept, as follows: "An injury is a wrong; and for the redress of every wrong there is a remedy: a wrong is a violation of one's right; and for the vindication of every right there is a remedy." (Parker v. Griswold, 17 Conn. 288, 303.)

The defendant hospital here does not dispute, as it indeed cannot, this fundamental rule of law, but it says that if the plaintiffs are allowed to invoke a remedy for the wrong done them, the enactment of that remedy will impose a financial burden on the hospital. Is that an adequate defense in law?

The owner of a hotel may not plead non-liability in a trespass action because, if it has to make payment, the hotel will be thrown into debt. A municipality cannot escape liability in law by reasoning that taxpayers would protest if it had to pay damages for injuries incurred by a pedestrian who falls into a defect in a negligently maintained street. A transit company cannot avoid payment of damages by explaining that it might be put out of business if it had to pay all the verdicts rendered against it as the result of negligence on the part of its employees.

On what basis then, may a hospital, which expects and receives compensation for its services, demand of the law that it be excused from responding in damages for injuries tortiously inflicted by its employees on paying patients? There is not a person or establishment in all civilization that is not required to meet his or its financial obligations, there is not a person or establishment that is not called upon by the law to render an accounting for harm visited by him or it on innocent victims. By what line of reasoning, then, can any institution, operating commercially, expect the law to insulate it from its debts?

The hospital in this case, together with the Hospital Association of Pennsylvania, which has filed a brief

[ 417 Pa. Page 491]

    as amicus curiae, replies to that question with various answers, some of which are: it is an ancient rule that charitable hospitals have never been required to recompense patients who have been injured through the negligence of their employees; the rule of stare decisis forbids that charitable hospitals be held liable in trespass cases; if the rule of charitable immunity is to be discarded, this must be done by the State Legislature; and that since hospitals serve the public, there is involved here a matter of public policy which is not within the jurisdiction of the courts.

What is a charitable institution? Charity is defined in Webster's dictionary as: "Whatever is bestowed gratuitously on the needy or suffering for their relief."

"Acts of benevolence to the poor."

Whatever Mrs. Flagiello received in the Pennsylvania Hospital was not bestowed on her gratuitously. She paid $24.50 a day for the services she was to receive. And she paid this amount not only for the period she was to remain in the hospital to be cured of the ailment with which she entered the hospital, but she had to continue to pay that rate for the period she was compelled to remain in the hospital as a result of injuries caused by the hospital itself.*fn2

Thus, as a matter of integrity in nomenclature it must be stated that, although the hospitals here under discussion are known as charitable hospitals, it does not follow that they offer their services through the operation of charity.*fn3 While in no way detracting from

[ 417 Pa. Page 492]

    the contribution which these estimable institutions do make toward the alleviation and cure of the ills of mankind, a proper appraisement of the issue on appeal impels the candid statement that the hospitals do receive payment for that contribution, and, where a hospital is compensated for services rendered, it cannot, if language is to mirror reality, truly be called a charity hospital.

In 1960 the Supreme Court of Michigan, in repudiating the immunity rule, said in the case of Parker v. Port Huron Hospital, 361 Michigan 1, 105 N.W. 2d 1: "The old rule of charitable immunity was justified in its time on its own facts. Today we have a new set of facts. It is true that the new facts are still described by the same word in our English language -- 'charities' -- but that is because our language has not changed as the facts of our life have changed. We have new facts described by old nomenclature. To say that the old rule of law still applies is to reach a result on the basis of nomenclature, not of facts; it is to apply a rule, proper in its time, to completely new facts, and to justify doing so by reference to language merely without regard to the facts."

In its motion for judgment on the pleadings the defendant said: "the fact that a patient is a paying patient [in what is otherwise a charitable hospital] is of no consequence in denying the eleemosynary nature of the institution."

To say that a person who pays for what he receives is still the object of charity is a self-contradiction in terms. In the early days of public accommodation for the ill and the maimed, charity was exercised in its pure and pristine sense. Many good men and women, liberal in purse and generous in soul, set up houses to

[ 417 Pa. Page 493]

    heal the poor and homeless victims of disease and injury. They made no charge for this care. The benefactors felt themselves richly rewarded in the knowledge that they were befriending humanity. In that period of sociological history, the hospitals were havens mostly for the indigent. The wealthy and the so-called middle class were treated in their homes where usually there could be found better facilities than could be had in the hospitals.*fn4 The hospital or infirmary was more often than not part of the village parish. Charity in the biblical sense prevailed.

Whatever the law may have been regarding charitable institutions in the past, it does not meet the conditions of today. Charitable enterprises are no longer housed in ramshackly wooden structures. They are not mere storm shelters to succor the traveler and temporarily refuge those stricken in a common disaster. Hospitals today are growing into mighty edifices in brick, stone, glass and marble. Many of them maintain large staffs, they use the best equipment that science can devise, they utilize the most modern methods in devoting themselves to the noblest purpose of man, that of helping one's stricken brother. But they do all this on a business basis, submitting invoices for services rendered -- and properly so.

And if a hospital functions as a business institution, by charging and receiving money for what it offers, it must be a business establishment also in meeting obligations it incurs in running that establishment. One of those inescapable obligations is that it must exercise a proper degree of care for its patients, and, to the extent that it fails in that care, it should be liable

[ 417 Pa. Page 494]

    in damages as any other commercial firm would be liable. If a hospital employee negligently leaves a sponge in the abdominal cavity of a paying patient, why should the hospital be freed from liability, any more than a restaurant owner should escape responsibility for the damage inflicted by a waitress who negligently overturns a tray of hot dishes on a guest?

A person may recover damages if he is injured, as the result of negligence, in a hotel, theater, street car, store, skating rink, natatorium, bowling alley, train or ship, yet he cannot recover if he is hurt in the place where accidents are considered most unlikely to occur -- in a hospital, where one goes to be cured of an already existing infirmity and not to be saddled with additional woe and torment. This is indeed the paradox of paradoxes. It has no logic, reason, and, least of all, justice, to support it. And still more paradoxical is the argument that, by refusing recovery to the victim of a hospital's own negligence, one somehow is serving charity!

If there was any justification for the charitable immunity doctrine when it was first announced, it has lost that justification today. In 1960 the Supreme Court of Michigan in the case of Parker v. Port Huron Hospital, 361 Michigan 1, said: "It is our conclusion that there is today no factual justification for immunity in a case such as this, and that principles of law, logic and intrinsic justice demand that the mantle of immunity be withdrawn. The almost unanimous view expressed in the recent decisions of our sister States is that insofar as the rule of immunity was ever justified, changed conditions have rendered the rule no longer necessary."

The "comment" on subsection (2), § 402 of Restatement (2d), Trusts, reads: "The trend of judicial opinion favors the denying of immunity, putting a charitable organization in the same position as that of noncharitable

[ 417 Pa. Page 495]

    organizations, subjecting them to liability in tort not only for the negligence of the governing board but also for the negligence of employees, subjecting them to liability to recipients of benefits as well as to other persons."

The subsection (2) itself reads: "A person against whom a tort is committed in the course of the administration of a charitable trust can reach trust property and apply it to the satisfaction of his claim."

All this is in keeping with the Restatement, Torts, which decisively declares in § 887 that: "No one, except the State, has complete immunity from liability in tort."

According to one who has made a study of the subject, there were only 178 hospitals in the United States in 1873.*fn5 Since then hospitals have been growing in number, size, expansion and service. Entering a hospital was at one time regarded with a measure of awe. Doing so now has become almost a commonplace occurrence, although a highly beneficial one. People go to hospitals not only for curative purposes, but for preventive reasons as well as for check-ups. From 178 hospitals in 1873, the number increased to 7,138 in 1963, with 328 of them in Pennsylvania. These Pennsylvania hospitals contained 119,607 beds and employed 118,797 persons, and their assets were estimated to total $1,570,770,000.*fn6

Hospitals today are one of the outstanding features of American life. It is within the memory of most people who have attained the half-century mark that in their youth, childbirth in a hospital was exceptional enough to be big news via the Back Fence Courier in the community from which the parents came. It is now almost news if a child is not born in a hospital.

[ 417 Pa. Page 496]

According to compiled vital statistics, 97.2% of the children born in the United States in 1962 opened their eyes for the first time in a hospital.*fn7

The hospitals have become the birth of a nation. Every ten or fifteen years, a whole new country comes to life in the hospitals of America. A tremendous responsibility rests on those hospitals not to cripple posterity. Every safeguard should be installed, every vigilance must be exercised to protect the lives of the new nation, and one of the most effective safeguards is to provide for penalties in the event of laxity and carelessness in handling new-born citizens. Requiring hospitals to respond in damages for the carelessness of its employees provides the penalty which will insure the installation of safety methods and the enforcement of strict supervision over hospital personnel.

In every way, hospital service has expanded in America. Whereas, in 1940, hospitals accommodated 27,221,530 out-patient visits, the number in 1962 had increased to 99,382,460, with 5,291 out-patient departments rendering the service.*fn8 Whereas, in 1940, 12,300,000 people in the United States carried hospitalization insurance, this number had increased to 141,400,000 in 1962.*fn9

The Hospital Association states in its brief that "one out of every eight persons in the United States will be a patient in a hospital this year." Nothing could more strikingly illustrate, than this statement, how indispensably hospitalization has become an integral part of the American way of life. All this makes even more amazing the argument that hospitals enjoy

[ 417 Pa. Page 497]

    a privileged status, wholly different from that of all other going establishments in this country.

We have seen how originally charitable hospitals devoted all their energies, resources and time to caring for indigent patients. Later, they began to care for paying patients as well. In the case of Gable v. Sisters of St. Francis, 227 Pa. 254, this Court pointed out that in 1910, two-thirds of the space of the hospital there in controversy was used for charity patients, and that about 60% of the hospital's income came from charitable donations, while only about 40% of the hospital's income was derived from paying patients. Today this has changed almost completely. In 1963, the fees received from patients in the still designated charitable hospitals throughout Pennsylvania constituted 90.92% of the total income of the hospitals.*fn10

But, conceding that it could not operate without its paying patients (of which the wife-plaintiff is one), the defendant hospital still objects to being categorized with business establishments because, it says, the law of charitable immunity is so deeply imbedded in our law and is of such ancient origin that it can only be extirpated by legislative enactment. Leaving aside the fallacy that antiquity ipso facto bespeaks correctness or justice, how ancient is the rule of charitable immunity? And how did the rule ever become law in Pennsylvania?

Each court which has upheld the immunity rule has relied for its authority on a previous decision or decisions, scarcely ever placing the subject for study on the table of self-asserting justice. Thus one pursues the citations retrospectively to see how so strange a doctrine of exemption ever became engrafted on to the negligence law of Pennsylvania, which is not unknown for the common sense which permeates it, as well as

[ 417 Pa. Page 498]

    the technological exactness which generally underlies it. Despite the claims of the supporters of the immunity rule that it is an ancient one, it did not really break through the crust of Pennsylvania's jurisprudence until 1888 in the case of Fire Insurance Patrol v. Boyd, 120 Pa. 624. In that case, Justice Paxson said that the charitable immunity rule "is hoary with antiquity and prevails alike in this country and in England." In support of this assertion he cited the case of Feoffees of Heriot's Hospital v. Ross, 12 Clark & Fin. 506, decided in 1846, which had rested on Duncan v. Findlater, decided in 1839, 6 Clark & Fin. 894.

Speaking for the English Court, Lord Cottenham had pronounced in both cases that: "To give damages out of a trust fund would not be to apply it to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose."

Apart from the fact that this statement was made in 1839 and therefore could lay no claim, in 1888, to "antiquity", it was extraneous to the question as to whether a person injured through a tort committed by a charitable institution could recover against the institution. But even if it be assumed that the question bore some relationship to the problem under consideration in Fire Insurance Patrol v. Boyd it still was of no authoritative weight at that time because Lord Cottenham's pronouncement had been repudiated in 1866 in Mersey Docks Trustees v. Gibbs, L.R. 1 H.L. 93, and what was said in 1861 in Holiday v. St. Leonard, 11 C.B. N.S. 192, on the same subject was overruled in 1871 by the case of Foreman v. Mayor of Canterbury, L.R. 6 Q.B. 214. Thus, the doctrine expounded in Fire Insurance Patrol v. Boyd, which depended on Feoffees, as authority, was, in fact, not the law in England in 1888. In assumed support of his theory of immunity, Justice Paxson spoke approvingly of a decision by the

[ 417 Pa. Page 499]

Supreme Court of Massachusetts which, in 1876, was the first American court to indicate that a charitable institution is not responsible for its torts. (McDonald v. Massachusetts General Hospital, 120 Mass. 432). Justice Paxson apparently did not know, when he lauded the English rule, that England had abandoned it, and apparently was unaware that the Massachusetts court built its decision on a foundation which did not exist.

In 1885, Maryland, in Perry v. House of Refuge, 63 Md. 20, added to the superstructure of the foundationless structure begun by Massachusetts. Then, three years later, Pennsylvania brought its blocks of stone with mortar in the Boyd case for still another higher addition to this pile which now was starting skyward. So sure was Justice Paxson of the solidity of the foundation in the Boyd case that he spoke sardonically of a decision of the Supreme Court of Rhode Island, a state, which, with a wisdom and courage in inverse proportion to its geographical size, declared that a maltreated hospital patient was entitled to recover for damage done him. Justice Paxson derided the Rhode Island case: "I will not consume time by discussing the case of Glavin v. Rhode Island Hospital, 12 R.I. 411, which, to some extent, sustains the opposite view of this question. There, a hospital patient paying eight dollars per week for his board and medical attendance, was allowed to recover a verdict against the hospital for unskillful treatment, and it was held that the general trust funds of a charitable corporation are liable to satisfy a judgment in tort recovered ...

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