miscounting sponges after a surgery not a professional service
How later courts described this case
- miscounting sponges after a surgery not a professional service
- miscounting sponges after surgery
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Garlington v. Kingsley, 289 So. 2d 88 (1974)
Examples include: a governing board’s duty to select its employees with reasonable care, Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); the board’s duty to furnish the hospital with reasonably adequate supplies, equipment and facilities for use in treatment and diagnosis of patients, Snipes v. Southern Baptist Hospital, 243 So…
The opinion
SANDERS, Justice
(concurring in part and dissenting in part).
I concur in the resolution of all issues in the majority opinion save one: retention of the charitable immunity doctrine.
In Louisiana, the doctrine of charitable immunity was judicially created. See Jordan v. Touro Infirmary, La.App., 123 So. 726 (1922); Jeter, Charitable Institutions: Liability for Tortious Conduct, 17 Tul.L. Rev. 621, 622-625.
As conclusively demonstrated by the doctrinal writers, the doctrine is unsound and has outlived its usefulness. See e. g., Appleman, The Tort Liability of Charitable Institutions, 1936, 22 A.B.A.J. 48; Feezer, The Tort Liability of Charities, 1928, 77 U.Pa.L.Rev. 191; McCaskill, Respondeat Superior as Applied in New York to Quasi-Public and Eleemosynary Institutions, 1920,, 5 Corn.L.Q. 409, 6 Corn.L.Q. 56; Spencer, Ray v. Tucson Medical Center: A Reappraisal of Tort Liability of Charities, 1951, 24 Rocky Mt.L.Rev. 51; Notes, 1925, 34 Yale L.J. 316 ; 1938, 38 Col.L.Rev. 1485; 1938, 48 Yale L.J. 81 ; 1950, 25 N.Y.U.L. Rev. 612; 1951, 20 U.Cin.L.Rev. 412; 1951, 30 N.C.L.Rev. 67; 1952, 6 Ark.L.Rev. 209; 1953, 32 N.C.L.Rev. 129; 1954, 32 Tex.L. Rev. 376; 1959, 37 N.C.L.Rev. 209; 1957, 19 U.Pitt.L.Rev. 119. In recent years, approximately twenty states have abandoned the doctrine. Prosser, Law of Torts (3rd ed. 1964) § 127, pp. 1023-1024.
In this state, the doctrine has been riddled with exceptions. It has also been rendered unavailable to the insurer of a charitable institution.
From a legal viewpoint, the charitable immunity doctrine clashes with the Louisiana Civil Code. It contravenes the articles making a master liable for the tortious conduct of his servants. See LSA-C.C. Arts. 176, 2315, 2320; Wheeler, The Louisiana Law of Charities, 15 Tul.L.Rev. 177, 216-217; Jeter, Charitable Institutions: Liability for Tortious Conduct, supra, 17 Tul. L.Rev. 623.
Since the courts established the doctrine, this Court can now repudiate it. I would do so for the betterment of the law.
*227 For the reasons assigned, I concur in part and dissent only from the retention of the charitable immunity doctrine in Louisiana.