Darius M. MANLOVE, Administrator of the Estate of Darien E. Manlove, Plaintiff,
WILMINGTON GENERAL HOSPITAL, a corporation of the State of Delaware, Defendant.
[53 Del. 339] Joseph T. Walsh, Wilmington, for plaintiff.
Rodney M. Layton, of Richards, Layton & Finger, Wilmington, for defendant.
TERRY, President Judge.
This is an action for wrongful death of Darien E. Manlove, an infant boy, filed by his father, Darius M. Manlove, as the administrator of his son's estate. The defendant, Wilmington General Hospital, has moved for summary judgment. The facts as disclosed from the record are briefly as follows:
Darien Manlove was but four months old when on the 4th of January, 1959, he became ill with diarrhea. He spent a sleepless night in considerable discomfort. The following day, January 5th, his parents contacted their family physician, Dr. Hershon, and were advised to administer certain medication which they had in their home. Throughout that day the child's diarrhea persisted, and he began to run a high temperature. Once again the parents called Dr. Hershon, who, [53 Del. 340] when he was advised of the fever, prescribed additional medication. That night brought no improvement, and so, on the following day, January 6th, the parents took their child to Dr. Hershon's office where he was examined and treated by Dr. Hershon's associate, Dr. Thomas. Upon returning home the child's condition did not improve, and on the morning of the 7th of January the parents concluded their child was getting worse and was in need of immediate medical care. However, the 7th was a Wednesday, and on Wednesdays Doctors Hershon and Thomas are not available at their office--at least not during the daytime hours. Not knowing where to turn, the parents decided to take their child to the Wilmington General Hospital, the place of his birth. They thought that at the hospital the child would receive the help and relief that he so desperately needed. They further assumed that the mere sight of a child so sick, together with their recitation of his aggravated discomfort, would suffice to prompt someone to give aid while there was still time. But this was not the case, for they failed to account for the formality of admission requirements.
The parents appeared before the nurse at her admissions desk in the Emergency Ward. They related the story of their child's illness and their doctor's treatment, and showed the medicine that had been prescribed. They further stated the child seemed to be failing, and requested that someone help him. The nurse apparently recalled her regulations to the effect that patients will not be admitted unless they present an admission slip signed by their physician. The nurse asked if they had such an admission slip and found that they did not. She stated that she would call the doctor's office. She did not discovered that the doctors were not available, whereupon she stated to the parents: 'You have no admission slip signed by your doctor and our regulations do not permit us to treat your child under the circumstances, but you may come back to our Pediatric Clinic tomorrow and someone will look after your child at that time.' At no time had the [53 Del. 341] nurse gotten up from her chair at the desk. At no time did she personally check the child. At no time did she make any effort to call an intern or staff physician, despite the fact that there were no patients in the Emergency Ward.
The parents, having been denied treatment for their child, returned to their home and called Dr. Hershon's office to make an appointment for that evening. However,
they never kept their appointment, for at approximately three o'clock the same afternoon the child was found to be dead in his crib. Cause of death: bronchial pneumonia.
No one can dispute the magnitude of this tragedy. The thought most appalling to me is the denial of treatment to a suffering, possible dying, child because a nurse blindly enforced an inapplicable regulation. I say inapplicable for the reason that the hospital did have a regulation which provided for treatment of all emergency cases. I would assume a person only a few hours away from death by bronchial pneumonia might be well classified as an emergency case.
This case presents a complex pattern of blurred tones, difficult to define. The hospital maintains that the nurse was not aware of the critical nature of the child's illness; that the parents had not made it manifest. Whereas, on behalf of the plaintiff it is argued that the mere recitation of the symptoms by the parents should have sufficed to indicate a critical condition, and that the nurse was completely indifferent. This is a question of fact, which can only be determined at trial. Yet, it must be said that the parents took their rebuff with what seems to have been a submissive resignation. Had they asserted their feeling in a more dogmatic attitude such would have defined the issue in a more positive manner and would probably have resulted in some sort of medical examination of their child. Were this to have occurred then this case may not have arisen, for it is reasonable to assume that a medical examination of the child would have revealed his illness for what it was, and, recognizing an emergency, all reasonable [53 Del. 342] medical steps would have been taken to provide relief. However, be that as it may, there is a defined area of factual dispute still involved. Plaintiff argues that this dispute removes the case from a positive posture for summary judgment; whereas, defendant contends that the facts that are at variance are immaterial.
Plaintiff has advanced a hypothesis by which the nurse's conduct may be viewed as possible misfeasance or malfeasance. He contends that the nurse made a superficial diagnosis upon the symptoms as related by the parents; that this was a shallow, ill-founded, and negligent diagnosis; that it was on this basis the nurse decided that no emergency existed, and that an intern's participation was unwarranted; that having reached this conclusion the nurse did not per se refuse treatment, but, rather, postponed treatment when she advised the parents that they could go to the Pediatric Clinic the following day. The plaintiff characterizes this conduct as being 'negligent to the point of indifference.' This analysis might seem to be the most safe approach, for it attempts to ground the hospital's liability upon the base of misfeasance. Though this might be the most conservative avenue for the plaintiff to follow, it has a certain difficulty. To reach the desired result I would be required to view the facts from a somewhat disturbing perspective and construe the passive inaction of the nurse as being in effect a negligent diagnosis. I think, however, that this would beg the issue. The nurse's conduct is more readily characterized as nonfeasance. Needless to say, the distinction between misfeasance and nonfeasance is often crucial, especially in tort law.
Defendant has adopted the position that the nurse's conduct was a case of nonfeasance from which it is argued that there can be no liability because there was no duty to act, i. e., no duty to treat, diagnose or admit. Therefore, defendant contends it is entitled to judgment as a matter of law. Assuming for the moment that the nurse's conduct is [53 Del. 343] to be characterized as nonfeasance, I will consider defendant's contention, i. e., that defendant is not liable.
I shall begin with a definition of terms. The Wilmington General Hospital has been characterized as a 'private, non-profit, no stock, charitable hospital corporation.' Though this might seem a very ...