Rabon v. Rowan Memorial Hospital Incorporated

Lake, J.,

dissenting: If this were a case of first impression in this Court, I should be inclined, except as noted below, to concur in the result in the exceedingly well reasoned opinion of the majority. If I were a member of the Legislature, I should find it most persuasive upon the question of the adoption of a bill to make such a change in the law of this State. Since neither of those conditions prevails, I dissent.

If the majority opinion is otherwise sound, I find no basis in its reasoning, or in the authorities which it cites, for making a distinction between a nonprofit, charitable hospital corporation and any other nonprofit, charitable corporation with respect to the liability of such corporation for injury to a recipient of its services caused by the negligence of its employee in the course of that employee’s duties. However, the basis for my dissent concerns an aspect of the majority opinion which is of much more far reaching importance to the people of this State than the mere determination of the right of a patient in such a hospital to recover damages for an injury caused by the negligence of such an employee. I shall, therefore, briefly state the reason I cannot concur in this decision.

Clearly, the availability at this time of liability insurance is immaterial upon the question of whether liability shall be decreed by us to exist from this date forward. The existence or nonexistence of a legal duty, and of liability to damages caused by the breach of that duty, surely cannot turn upon whether hospitals in general, or this defendant in particular, may now elect between paying for such losses as they occur or paying for them (plus a profit to an insurance company) in advance through insurance premiums.

*26 The gist of the decision now reached by the majority is:

“Decided cases indicate that the present state of the law in North Carolina is as follows: A patient, paying or nonpaying, who is injured by the negligence of an employee of a charitable hospital may recover damages from it only if it was negligent in the selection or retention of such employee. * * * Convinced that the rule of charitable immunity should no longer be applied to hospitals, we hereby overrule Williams v. Hospital

* * * and our other cases of similar import * * * The rule of liability herein announced applies only to this case and to those causes of action arising after * * * the filing date of this opinion.” (Emphasis mine.)

In support of this decision, the majority quote with approval the opinion of the Supreme Court of Michigan in Parker v. Hospital, 361 Mich. 1 , 106 N.W. 2d 1 , as follows:

“The old rule of charitable immunity was justified in its time, on its own facts. Today we have a new set of facts. * * * [C] hanged conditions have rendered the rule no longer necessary.”

The Constitution of North Carolina contains these important provisions:

“A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.” (Article I, § 29.)

“The legislative, executive and supreme judicial powers of the government ought to be forever separate and distinct from each other.” (Article I, § 8.)

“The legislative authority shall be vested in two distinct branches, both dependent on the people, to wit: A Senate and a House of Representatives.” (Article II, § 1.)

It cannot be doubted that the authority to determine that, by reason of changed conditions, that which was the law yesterday ought not to be the law tomorrow is “legislative authority.” So, a declaration that in future litigation the courts shall hold that one who does a certain act tomorrow morning shall be liable in damages, but that one who did the same act last night shall not be liable in damages is an exercise of “legislative authority.” The Constitution of this State expressly declares that “the legislative authority” shall be vested in the Legislature. (Emphasis mine.) This provision, taken together with Article I, § 8, supra, means that this Court has no legislative authority. It is for the people of North Carolina to *27 determine which of their agencies shall exercise which of their governmental powers. They have done so in language which seems to me inescapably clear.

The majority opinion, via a quotation from the Supreme Court of Michigan in Parker v. Hospital, supra, appears to cite Mr. Justice Cardozo in support of its view that this Court may properly declare that tomorrow morning the substantive law of North Carolina shall be the opposite of what it was last night. A reading of the opinion of that great jurist and legal philosopher in Great Northern Railway Co. v. Sunburst Oil Refining Co., 287 U.S. 358 , 53 S. Ct. 145 , 77 L. ed. 360 (the case cited by the Michigan Court) discloses that the Michigan Court, and hence the majority of this Court, misconstrued Judge Cardozo’s views there expressed. In that case, the Supreme Court of the United States was passing upon the single contention that the United States Constitution had been violated by a decision of the Supreme Court of Montana refusing to give retroactive effect to the overruling of its former decision. What Mr. Justice Cardozo there said was:

“This is a case where a court has refused to make its ruling retroactive and the novel stand is taken that the Constitution of the United States is infringed by the refusal. We think the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.”

I agree completely with this declaration by this wise interpreter of the Constitution of the United States that a decree of the Supreme Court of North Carolina, in a case like the present, to the effect that the law of North Carolina tomorrow shall be different from what it was yesterday violates no provision of the United States Constitution, and so is not properly a matter of concern to the Supreme Court of the United States. That, however, is a far cry from holding that the Constitution of North Carolina permits us to render such a decision.

The construction of our Constitution by this Court cannot be foreclosed by decisions of the Supreme Courts of Michigan, Illinois, Nebraska and Wisconsin, concerning their own authority under the constitutions of those states. Nor can it be foreclosed by a determination by the Supreme Court of the United States that it has a like power in its construction of the United States Constitution. See Miranda v. Arizona, 384 U.S. 436 , 86 S. Ct. 1602 , 16 L. ed. 2d 694.

Again, the majority opinion quotes, with approval, this state *28 ment from the opinion of the Supreme Court of Oregon in Hungerford v. Benevolent Association, 235 Ore. 412, 414-15 , 384 P. 2d 1009 , 1010-11:

“Negligence law is common law. * * * The fact that a rule has been followed for fifty years is not a convincing reason why it must be followed for another fifty years if the reasons for the rule have ceased to exist. * * * When courts have recognized the need for remedies for new injuries, the remedies have been found.” (Emphasis mine.)

In the first place, the present decision is not an allowance of a remedy for a new type of injury. The injury of which the present plaintiff complains is exactly the same kind of injury suffered by the plaintiffs in the cases before this Court when it was determined that the law of North Carolina provided no remedy because there had been no violation of a legal duty; that is, the plaintiffs had sustained no legal injury. Those plaintiffs were denied, liability upon the application of the maxim damnum absque injuria. The present decision is, therefore, not an invention of a new remedy for a new kind of damage or for a new kind of act or omission. It is simply a holding that a set of facts which yesterday gave rise to no legal right in anyone, except Henry Rabón, will tomorrow give a legal right to anyone so damaged. Under this decision, of all the persons injured heretofore in hospitals by the negligence of a nurse, carefully selected by her employer, not one can recover, with the sole exception of Henry Rabón. This is not only an exercise of “legislative authority” to change the law. It is discriminatory legislation which, if enacted by the General Assembly, would be open to serious question as to its constitutionality.

The relationship which Henry Rabón had to the hospital which he sues is not a new relationship previously unknown to the law. The hospital is not a type of creature previously unknown to the law. The events upon which he bases his alleged right to recover damages are not events previously unknown to the law. To be sure, much which was reasonable care in hospitals of 1863 would be gross carelessness in a hospital of 1963, to paraphrase the Oregon Court’s opinion, but that is not the question before us. The question is whether we should now hold that the same relationship and precisely similar events which yesterday imposed no liability upon the hospital will, if repeated tomorrow, impose liability upon it tomorrow morning. To so determine is of the essence of the legislative process. It is not an exercise of the judicial power, which is the only governmental power that the people of this State have seen fit to *29 authorize us to exercise in their name. Of course, “the fact that a rule has been followed for fifty years is not a convincing reason why it must be followed for another fifty years if the reasons for the rule have ceased to exist,” but it may well be a reason why this Court should follow it until the Legislature decides to change it.

Again, the majority opinion, quoting the Supreme Court of West Virginia, says, “Stare decisis is not a rule of law but is a matter of judicial policy.” I do not so understand it. Of course, this Court has in the past overruled, and will in the future overrule, its former decisions in the proper exercise of the judicial function of government. However, a proper exercise of that power by a court is the result of its determination that its former decision was an erroneous statement of the law when the decision was rendered and, therefore, the law never has been as stated in the former opinion and the correction is retroactive. To change the existing law for the future because a different rule would be a wiser policy for the State of North Carolina to follow in the future is, in my opinion, a violation by this Court of the Constitution of North Carolina and a usurpation of a power which has not been granted to us by the people. That is, it is the violation, for a good purpose, of a rule of law by which we are bound rather than a mere casting aside of a judicial policy which we are at liberty to discard or retain at our pleasure.

There is much to be said in support of the view that a change in this rule stated in the former decisions of this Court should not be given retroactive effect. It may be that those decisions induced some hospitals not to carry liability insurance they otherwise would have procured. It may even be thought that those decisions have encouraged hospitals to be less concerned about negligence in the care of patients than they would otherwise have been. I doubt that those decisions have resulted in more injuries to patients than would otherwise have occurred. Nevertheless, there is a risk of injustice and hardship in a retroactive reversal of those decisions.

Assuming, as I do, that a change of the law, effective only as to the future, is desirable, the Legislature clearly has the authority to make it. This Court does not. Our authority is not enlarged by a possibility that the Legislature may see fit to leave the law where our predecessors declared it to be. The reluctance, if any, of the Legislature to exercise its power as we believe desirable does not shift that power to us.