Appeal by plaintiff from Rouse, Judge. Judgment entered 11 March 1981 in Superior Court, New Hanover County. Heard in the Court of Appeals 10 December 1981.
Becton, Judge. Judge Clark and Judge Whichard concur.
The relevant allegations of negligence against the Hospital in plaintiff's Complaint are as follows:
The defendant James Walker Memorial Hospital (now New Hanover Memorial Hospital), acting by and through its medical staff, failed and neglected to have established at the time of plaintiff's birth a policy prohibiting the administration of oxygen in concentrations exceeding 40% fraction of inspired air to premature newborns, with the direct and proximate result that agents, servants and employees of the defendant hospital administered to plaintiff, levels of oxygen in excess of 40% fraction of inspired air to the extent that she developed retrolental fibroplasia and was rendered totally blind, at a time when reasonable standards of care for such patients in hospitals required that such hospitals have in force and effect a regulation and policy forbidding the administration of oxygen in quantities exceeding a 40% fraction of inspired air to premature newborn infants since at that time it was well known that the administration of oxygen in quantities in excess of 40% fraction of inspired air produces retrolental fibroplasia in premature newborn infants, as indeed it did in plaintiff.
On 17 December 1980, the Hospital filed its motion for summary judgment with an accompanying affidavit of Z. Franklin Pridgett which specifically alleged the charitable nature of the Hospital. Plaintiff's attorney subsequently filed a counter-affidavit stating, among other things, that plaintiff did not base her claim against the Hospital on the theory of vicarious liability for the negligence of any of the Hospital's employees or servants but that plaintiff's claims were grounded solely upon a theory of corporate negligence for violations of duties owed plaintiff directly by the Hospital. Plaintiff's attorney stated that if outstanding discovery
to defendants were completed, the discovery would establish the duties owed by the Hospital to plaintiff regarding the administration of oxygen and would support his corporate negligence theory. Following the hearing on the Hospital's motion for summary judgment, the court entered an order granting the Hospital's motion for summary judgment and stating that "the plaintiff's claim against the defendant New Hanover Memorial Hospital, successor to James Walker Memorial Hospital, is barred by the doctrine of charitable immunity as a matter of law."
With the factual and procedural history outlined, we now proceed with our analysis.
Prior to 20 January 1967, a charitable hospital in North Carolina was liable to a patient for injuries caused by the negligence of the hospital's employees or servants only (1) if the hospital was negligent in the hiring or retention of the employee or servant, williams v. Hospital, 237 N.C. 387, 75 S.E.2d 303 (1953); or (2) if the hospital provided defective equipment, Payne v. Garvey, 264 N.C. 593, 142 S.E.2d 159 (1965). The doctrine of charitable immunity for hospitals along with its exceptions was abolished effective 20 January 1967 by the North Carolina Supreme Court's decision in Rabon v. Hospital, 269 N.C. 1, 152 S.E.2d 485 (1967).
Although the term "corporate negligence" was used in Payne and Rabon, the first North Carolina decision to analyze the doctrine of corporate negligence in a medical malpractice context was Bost v. riley, 44 N.C. App. 638, 262 S.E.2d 391, pet. for disc. review denied 300 N.C. 194, 269 S.E.2d 621 (1980). Under the doctrine of corporate negligence, a hospital may be held responsible for the negligence of members of its medical staff. The basis of liability is not respondent superior ; rather, it is the independent negligence on the part of the hospital in breaching a duty that runs directly from the hospital to the patient. As we said in Bost, "[t]he proposition that a hospital may be found liable to a patient under the doctrine of corporate negligence appears to have its ...