Oviatt v. Archbishop Bergan Mercy Hospital

Boslaugh, J.

The plaintiff was admitted to the defendant hospital for a hysterectomy which was performed on March 1, 1965. The operation was performed by Dr. Walter J. Holden with Dr. Clarence M. Hartmann, her personal physician, assisting. Following the operation the plaintiff had difficulty with her right foot and it was discovered that the sciatic nerve had been damaged. The plaintiff believes the nerve was damaged when Dr. Holden tied the hypogastric artery in an effort to con-the loss, and as between plaintiff insurer and defendant hospital, the party making the mistake should bear that loss.

A creditor who has innocently received payment of a debt from a third party is under no duty to make restitution to the third party if it is later discovered that the third party had no responsibility to make the payment and payment was made solely because of the third party’s mistake.

Plaintiff, for reasons not shown by the record, did not join its insured as a party defendant in attempting recovery of its overpayment, and we are therefore not called upon to rule as to the right of an insurer to recover from its insured for overpayments mistakenly made to insured’s third party creditor.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.