dissenting.
I agree with the majority that the duty owed by a hospital to a person brought into an emergency room for care and assistance is defined by Restatement (Second) of Torts § 323 (1965). However, I disagree with the majority’s conclusion that the trial court properly instructed the jury regarding this legal duty. Accordingly, I dissent.
The jury’s determination of Riddle’s liability was dependent upon their understanding of the legal duty owed by a hospital to a person brought to an emergency room for treatment. In his instructions to the jury the trial judge defined the hospital’s legal duty as follows:
Now, with respect to relationship between hospital and persons brought to the emergency room. A person brought to an emergency room is a patient. If emergency care is undertaken, liability is no different from that which exists with respect to a person admitted to the hospital.
Of course, the contention here, of course, is that physically he was in our emergency room, but he was not an emergency room patient of ours. He was Dr. Stahlnecker’s patient. But you will have to determine this from the facts.
N.T. October 31, 1977 at 1057 (emphasis added).
Upon the request of appellee’s counsel that the court clarify the legal duty of the hospital according to the law of this Commonwealth the court charged:
Now, once a person is brought to a hospital emergency room and that person is accepted for care and treatment, the hospital must not act unreasonably in allowing a person to be removed from the premises. The law requires that such patient be kept at the hospital and not transferred or removed if it is foreseeable that his condition will be aggravated or his danger increased by such removal or transfer.
*580 Now, again I point out the contentions here, Riddle says that doesn’t apply here because he never really became a patient in our emergency room. He just happened to be there and we had some services and we permitted Dr. Stahlnecker to use them.
N.T. October 31, 1977 at 1095-1096 (emphasis added).
The trial court failed to give the proper instructions regarding the duty of care owed by Riddle to the decedent. It is undisputable that once hospital personnel administered medication and rendered other services to decedent, Riddle had a duty, as a matter of law, to do those things necessary for decedent’s care and protection. The only proper question for jury determination, therefore, was whether the hospital took all steps reasonable and necessary for the protection of the decedent. The trial court’s gratuitous references to appellant’s argument that decedent was not the hospital’s “patient” were improper and had the inescapable effect of misdirecting and misleading the jury. Therefore, a new trial should be awarded and the Superior Court’s order so directing should be affirmed.
NIX, C.J., and PAPADAKOS, J., join in this dissenting opinion.