Berg v. New York Soc. for Relief of the Ruptured and Crippled

• Decision Date: 11 July 1956
• Citation: 136 N.E.2d 523,1 N.Y.2d 499,154 N.Y.S.2d 455
• Parties: , 136 N.E.2d 523 Sidney BERG et al., Appellants, v. NEW YORK SOCIETY FOR the RELIEF OF THE RUPTURED AND CRIPPLED, Respondent, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 455

154 N.Y.S.2d 455

1 N.Y.2d 499, 136 N.E.2d 523

Sidney BERG et al., Appellants, v. NEW YORK SOCIETY FOR the RELIEF OF THE RUPTURED AND CRIPPLED, Respondent, et al., Defendants.

Court of Appeals of New York.

July 11, 1956.

Benjamin H. Siff and John J. Tullman, New York City, for appellants.

William F. McNulty, New York City, for respondent.

Emanuel Hayt, Great Neck, for Hospital Association of New York State, amicus curiae, in support of respondent's position.

DESMOND, Judge.

The blood test was a 'medical act' in the sense that it was preparatory to a transfusion. However, the test was performed not by a physician or nurse but by a technician who was employed and paid by the hospital and who was so far short of 'professional' status or attainments that only four to six weeks' training was necessary for her job. She was no independent practitioner of a learned profession, working in but not for the hospital. She was a salaried employee doing routine work which required a minimum of skill and training. Therefore, without reviewing or revising the whole Schloendorff v. Society of New York Hosp. rule (1914, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505), and without determining whether the rule itself has outlived its usefulness, we hold that this particular hospital as the employer of this particular young woman is liable for her negligence.

The true holding of Schloendorff was that nonproprietary hospitals were exempt from liability for negligent acts or omissions of physicians and nurses in their professional medical capacities. The bases for Schloendorff were two: first, that such hospitals were 'charities' and, second, that there was no 'respondeat superior' situation since the hospitals were in no real sense the 'employers' of the physicians and nurses who did the work of healing in the hospitals. The first of those Schloendorff bases was later abandoned because it was unrealistic at least as to paying patients. The second basis, whether or not it may fairly be applied in the case of physicians and nurses who are salaried members of the hospital's personnel rather than outside professionals called in to minister to patients, is without relevance to cases like this one where the negligent person was a nonprofessional employee of the hospital.

Modern hospitals hire on salary not only clerical, administrative and housekeeping employees but also physicians, nurses and laboratory technicians of many kinds. Not only do they furnish...