Berg v. New York Society for the Relief of Ruptured & Crippled , 146 N.Y.S.2d 548 ( 1955 )

Botein, J.

This appeal poses the problem of accommodating the situation it presents to the flexural line of cases dealing with the negligence of hospital employees.

The female plaintiff was a patient in the defendant hospital. An admittedly qualified laboratory technician, employed by the hospital, made a serological test to determine the plaintiff’s blood factor. This test was made in contemplation of, and as an indicated preliminary to, a blood transfusion ordered for plaintiff by her physician. The technician concededly made an error in designating plaintiff’s blood factor, with the result that she was infused with blood of the wrong factor and suffered serious consequences.

After a trial without a jury judgment was entered for the plaintiff. The trial court held that the negligence of tjie technician was an “ administrative ” rather than a “ medical ” act within the meaning that those terms have acquired in the context of fixing liability for injuries to hospital patients (see Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Santos v. Unity Hosp., 301 N. Y. 153, and Cadicamo v. Long Island Coll. Hosp., 308 N. Y. 196).

The criterion is the nature of the alleged act of negligence, not the title of the person performing the act. In Phillips v. Buffalo Gen. Hosp. (supra) the placement of a hot water bottle by an orderly was held to be a medical act. (In this connection, see Bakal v. University Heights Sanitarium, 277 App. Div. 572, 575-576, affd. 302 N. Y. 870, and Perlmutter v. Beth David Hosp., 308 N. Y. 100, 106.) In such perspective it is of no significance that the negligently performed act was, as the trial court here found, “ a simple chemical test ”. If it was immediately and integrally related to the medical care and treatment prescribed for the patient, then the act of negligence, no matter how simple or how far removed from the common concept of a professional act, was “ medical ” in nature and the hospital is immune from liability therefor (Phillips v. Buffalo Gen. Hosp., supra; Sutherland v. New York Polyclinic Medical School & Hosp., 273 App. Div. 29, affd. 298 N. Y. 682; Wisner v. Syracuse Memorial Hosp., 274 App. Div. 1087; Steinert v. Brunswick Home, 259 App. Div. 1018, motion for leave to appeal denied 260 App. Div. 810, 284 N. Y. 822; see, also, Cadicamo v. Long Island Coll. Hosp., supra).

The Trial Judge relied on Mrachek v. Sunshine Biscuit (283 App. Div. 105, affd. 308 N. Y. 116) which, however, is readily distinguishable. In that case the physician, who negligently inserted a needle in plaintiff’s arm to extract a specimen of blood, was an employee of a business corporation. Plaintiff was not a patient. The physician was employed solely for the purpose of making required physical examinations, at the behest of the corporation, of applicants seeking jobs. Plaintiff was such an applicant. The Court of Appeals, in explaining the independent contractor theory upon which a hospital’s immunity from liability for the torts of its physicians is based, stated (p. 120): “At the heart of this rationale lies the thought that the hospital does not cure the patient; rather it procures a physician who, in rendering treatment, exercises his own judgment and discretion, undirected and uncontrolled by the hospital.” (Italics the court’s.) The court then went on to say (p. 122): “ We look to the ‘ medical administrative ’ distinction only when the negligence occurred during treatment or care of a patient, and where the physician acts independently. Here, where there was no treatment or care involved, where there was no doctor-patient relationship, where the physician did not act independently but merely ‘ obeyed an order given by his employer ’, and where the physician’s act ‘ was done solely for the purpose of furnishing to the employer in its business a report of the physical condition of the applicant ’, the physician was a servant, not an independent contractor, and the employer is liable for his negligence.” (Italics the court’s.)

In this case, unlike the plaintiff in the Mrachek case, plaintiff was a patient in defendant hospital, being given treatment and care under direction of a doctor.

Of course, the realities of hospital procedure are not readily polarized into “ medical ” and “ administrative ” acts. It may be presumed that almost all acts which a hospital performs for its patients inevitably relate in some degree to the medical care and treatment of those patients. The determination of whether any one such act is “ medical ” or “ administrative ” often hinges on blending borderline considerations which, as may be supposed, invite delicate distinctions for the reconciliation of some of the decisions (e.g., compare Volk v. City of New York, 284 N. Y. 279, 284-285, with Steinert v. Brunswick Home, supra).

Such a highly refined line of distinction may suggest reappraisal of the underlying rationale, perhaps through legislative action. A reappraisal would necessarily have to reckon with the compelling arguments of the late Justice Rutledge in President & Directors of Georgetown Coll. v. Hughes (130 F. 2d 810). He worded his challenge as follows (p. 812): “The cases are almost riotous with dissent. Reasons are even mom varied than results. These are earmarks of law in flux. They indicate something wrong at the beginning or that something has become wrong since then. They also show that correction, though in process, is incomplete.”

However, as we read the prevailing authorities in this State, the negligent act in this case bears a sufficiently direct and immediate relation to the care and treatment specified for the plaintiff by her own physician to require that the judgment below lie reversed and the complaint dismissed.