2 N.Y.2d 656, Bing v. Thunig

Citation2 N.Y.2d 656, 163 N.Y.S.2d 3
Party NameBing v. Thunig
Case DateMay 16, 1957
CourtNew York Court of Appeals

Page 656

2 N.Y.2d 656

163 N.Y.S.2d 3

Isabel BING, Appellant, et al., Plaintiff,

v.

Louis A. THUNIG, Defendant, and St. John's Episcopal Hospital, Respondent.

New York Court of Appeals

May 16, 1957.

Page 657

[163 N.Y.S.2d 4] Jerome M. Leitner, Brooklyn, and Benjamin H. Siff, New York City, for appellant.

Page 658

Sol I. Krol, New York City, Garbarini & Kroll, New York City, for respondent.

FULD, Judge.

Following Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505, a body of law has developed making the liability of a hospital for injuries suffered by a patient, through the negligence of its employees, depend on whether the injury-producing act was 'administrative' or 'medical.' The wisdom and workability of this rule exempting hospitals from

Page 659

the normal operation of the doctrine of respondeat superior have in recent years come under increasing attack. Decision in the present case calls upon us to say whether the rule should longer endure.

The plaintiff, Isabel Bing, was severely burned during the course of an operation, performed at St. John's Episcopal Hospital by her own physician, for correction of a fissure of the anus. She had been made ready for the operation, before the surgeon's appearance, by the hospital anesthetist and by two nurses also in the employ of the hospital. Preparatory to administering spinal anesthesia, the anesthetist painted the lumbar region of the patient's back with an alcoholic antiseptic, tincture of zephiran, an inflammable fluid, reddish in color. Again, after induction of the spinal anesthesia, one of the nurses applied the zephiran solution to the operative area. At that time there were three layers of sheeting under the patient.

[163 N.Y.S.2d 5] The nurses were fully aware that the inflammable antiseptic employed was potentially dangerous. They acknowledged that they had been instructed, not only to exercise care to see that none of the fluid dropped on the linen, but to inspect it and remove any that had become stained or contaiminated. However, they made no inspection, and the sheets originally placed under the patient remained on the table throughout the operation.

The surgeon was not in the operating room when the antiseptic was applied and at least 15 munutes elapsed before he initiated the preoperative draping process. The draping completed, the doctor took a heated electric cautery and touched it to the fissure to mark it before beginning the actual searing of the tissue. There was a 'smell of very hot singed linen' and, 'without waiting to see a flame or smoke', he doused the area with water. Assured that the fire was out, he proceeded with the operation. Subsequent examination of the patient revealed severe burns on her body, later inspection of the linen, several holes burned through the sheet under her.

In the action thereafter brought against the hospital and the surgeon to recover for the injuries suffered, there was a verdict against both. As to the hospital, with whose liability we are alone concerned, the court charged that that defendant could be held liable only if plaintiff's injuries occurred through the

Page 660

negligence of one of its employees while performing an 'administrative,' as contrasted with a 'medical,' act. Upon appeal, the Appellate Division by a closely divided vote reversed and dismissed the complaint. The majority of three, reasoning that the application of the antiseptic was in preparation for the operation and, therefore, part of the operation itself, concluded that the injury resulted from a 'medical' act.

As is apparent, the liability asserted against the hospital is predicated on an independent act or omission of the hospital-employed nurses, and not on any conduct of theirs ordered or directed by a visiting doctor or surgeon or, for that matter, by any physician. The evidence strongly supports the findings, implicit in the jury's verdict, that some of the inflammable zephiran solution had dropped on the sheet beneath the plaintiff's body, that it had left a stain discoverable upon inspection, that the nurses in attendance had had full opportunity, before the beginning of the operation, to remove the stained linen and that the solution (which had dropped on the sheet) had given off a gaseous vapor that ignited upon contact with the heated cautery. In the light of these facts, the jury was thoroughly justified in concluding that the failure of the nurses to remove the contaminated vapor-producing linen constituted the plainest sort of negligence.

[163 N.Y.S.2d 6] But, contends the hospital such negligence occurred during the performance of a 'medical' act and, accordingly, under the so-called Schloendorff rule, the doctrine of respondeat superior may not be applied to subject it to liability. The difficulty of differentiating between the 'medical' and the 'administrative' in this context, highlighted as it is by the disagreement of the judges below, is thus brought into sharp focus.

That difficulty has long plagued the courts and, indeed, as consideration of a few illustrative cases reveals, a consistent and clearly defined distinction between the terms has proved to be highly elusive. Placing an improperly capped hot water bottle on a patient's body is administrative (Iacono v. New York Polyclinic Med. School & Hosp., 296 N.Y. 502, 68 N.E.2d 450), while keeping a hot water bottle too long on a patient's body is medical (Sutherland v. New York Polyclinic Med. School & Hosp., 298 N.Y. 682, 82 N.E.2d 583). Administering blood, by means of a transfusion, to the wrong patient is administrative (Necolayff

Page 661

v. Genesee Hosp., 296 N.Y. 936, 73 N.E.2d 117), while administering the wrong blood to the right patient is medical (Berg v. New York Soc. for Relief of Ruptured & Crippled, 1 N.Y.2d 499, 154 N.Y.S.2d 455, reversing 286 A.D. 783, 146 N.Y.S.2d 548). Employing an improperly sterilized needle for a hypodermic injection is administrative (Peck v. Charles B. Towns Hosp., 275 A.D. 302, 89 N.Y.S.2d 190), while improperly administering a hypodermic injection is medical (Bryant v. Presbyterian Hosp. in City of N. Y., 304 N.Y. 538, 110 N.E.2d 391). Failing to place sideboards on a bed after a nurse decided that they were necessary is administrative (Ranelli v. Society of N. Y. Hosp., 295 N.Y. 850, 67 N.E.2d 257), while failing decide that sideboards should be used when the need does exist is medical (Grace v. Manhattan Eye, Ear & Throat Hosp., 301 N.Y. 660, 93 N.E.2d 926).

From distinctions such as these there is to be deduced neither guiding principle nor clear delineation of policy; they cannot help but cause confusion, cannot help but create doubt and uncertainty. And, while the failure of the nurses in the present case to inspect and remove the contaminated linen might, perhaps, be denominated an administrative default, we do not consider it either wise or necessary again to become embroiled in an overnice disputation as to whether it should be labeled administrative or medical. The distrinctions, it has been noted, were the result of 'a judicial policy of compromise between the doctrines of respondeat superior and total immunity for charitable institutions.' (Bobbe , Tort Liability of Hospitals in New York, 37 Corn.L.Q. 419, 438.) The better to understand the problem presented, a brief backward glance into historical beginnings proves profitable.

The doctrine declaring charitable institutions immune from liability was first declared in this country in 1876. McDonald v. Massachusetts [163 N.Y.S.2d 7] Gen. Hosp., 120 Mass. 432. Deciding that a charity patient, negligently operated upon by a student doctor, could not hold the hospital responsible, the court reasoned that the public and private donations that supported the charitable hospital constituted a trust fund which could not be diverted. As sole authority for its conclusion, the Massachusetts court relied on an English case (Holliday v. St. Leonard's, 11 C.B.N.S. 192, 142 Eng.Rep. 769), which in turn was based on a dictum in a case decided in 1839 (Duncan v. Findlater, 6 Cl. & Fin. 894, 7 Eng.Rep. 934), failing, apparently, to note that the dictum in the earlier case had been overruled (see Mersey

Page 662

Docks Trustees v. Gibbs, 11 H.L.Cas. 686) and that the decision in the other had been reversed. (See Foreman v. Mayor of Canterbury, 6 Q.B. 214.) 1 At any rate, after the McDonald case was decided (supra, 120 Mass. 432), other courts in this country, through not all on the same theory or for the same reason, followed the lead of Massachusetts in exempting the charitable hospital from liability, and so in time did the courts of New York. (See 4 Scott on Trusts (2d ed., 1956), § 402, p. 2895 et seq.; Bobbe , supra, 37 Corn.L.Q. 419, 420-425.

Although it was not the first case to deal with the general subject in this state, Schloendorff v. New York Hosp. (supra, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505) was the most important of the early decisions to be handed down by this court. It was there declared broadly that a charitable hospital was not responsible for the negligence of its physicians and nurses in the treatment of patients. Two reasons were assigned for that conclusion. The first was that one who seeks and accepts charity must be deemed to have waived any right to damages for injuries suffered through the negligence of his benefactor's servants and yet the rule was not limited to charity patients but was expanded to cover both paying patients and a private or profit-making hospital. See Bakal v. University Heights Sanitarium, 302 N.Y. 870, 100 N.E.2d 51, affirming 277 A.D. 572, 101 N.Y.S.2d 385; Steinert v. Brunswick Home, 172 Misc. 787, 16 N.Y.S.2d 83, affirmed 259 A.D. 1018, 20 N.Y.S.2d 459, motion for leave to appeal denied 284 N.Y. 822, 31 N.E.2d 517....

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274 practice notes
  • 374 F.Supp. 522 (S.D.N.Y. 1974), 71 Civ. 697, Rosenthal v. Warren
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 15, 1974
    ...'out of tune with the life about us, at variance with modern day needs and with the concept of justice and fair dealings.' Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). 12 In a more recent case, involving highly analogous public policy considerations, the same court use......
  • Walker v. Young Life Saranac Village, 112112 NYNDC, 8:10-CV-1578 (GTS/CFH)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Northern District of New York
    • November 21, 2012
    ...the deadline to amend pleadings. ( Id. ) [39] It is undisputed that New York does not recognize charitable immunity. Bing v. Thunig, 2 N.Y.2d 656, 666-67 (N.Y. 1957); Gilbert v. Seton Hall Univ., 332 F.3d 105, 109 (2d Cir. 2003) ("Although New York... once recognized charitable immunit......
  • 500 P.2d 1153 (Ariz.App. Div. 2 1972), 2 CA-CIV 1043, Beeck v. Tucson General Hospital
    • United States
    • Arizona Court of Appeals of Arizona
    • September 19, 1972
    ...superior before and after the 1914 Schloendorff opinion. Schloendorff was, we believe wisely, overruled in 1957 in Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1951). A number of other jurisdictions have also rejected the Schloendorff rule. Moeller v. Hauser, 237 Minn. 368, 5......
  • 465 A.2d 294 (Conn. 1983), Logan v. Greenwich Hosp. Ass'n
    • United States
    • Connecticut Supreme Court of Connecticut
    • September 6, 1983
    ...J., in Schloendorff v. New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92 Page 299 (1914), overruled on other grounds), Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). "[I]f the lack of consent was established, the removal of the moles was in itself a trespass and ......
  • Request a trial to view additional results
273 cases
  • 374 F.Supp. 522 (S.D.N.Y. 1974), 71 Civ. 697, Rosenthal v. Warren
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • April 15, 1974
    ...'out of tune with the life about us, at variance with modern day needs and with the concept of justice and fair dealings.' Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). 12 In a more recent case, involving highly analogous public policy considerations, the same court use......
  • Walker v. Young Life Saranac Village, 112112 NYNDC, 8:10-CV-1578 (GTS/CFH)
    • United States
    • Federal Cases United States District Courts 2nd Circuit Northern District of New York
    • November 21, 2012
    ...the deadline to amend pleadings. ( Id. ) [39] It is undisputed that New York does not recognize charitable immunity. Bing v. Thunig, 2 N.Y.2d 656, 666-67 (N.Y. 1957); Gilbert v. Seton Hall Univ., 332 F.3d 105, 109 (2d Cir. 2003) ("Although New York... once recognized charitable immunit......
  • 500 P.2d 1153 (Ariz.App. Div. 2 1972), 2 CA-CIV 1043, Beeck v. Tucson General Hospital
    • United States
    • Arizona Court of Appeals of Arizona
    • September 19, 1972
    ...superior before and after the 1914 Schloendorff opinion. Schloendorff was, we believe wisely, overruled in 1957 in Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1951). A number of other jurisdictions have also rejected the Schloendorff rule. Moeller v. Hauser, 237 Minn. 368, 5......
  • 465 A.2d 294 (Conn. 1983), Logan v. Greenwich Hosp. Ass'n
    • United States
    • Connecticut Supreme Court of Connecticut
    • September 6, 1983
    ...J., in Schloendorff v. New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92 Page 299 (1914), overruled on other grounds), Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). "[I]f the lack of consent was established, the removal of the moles was in itself a trespass and ......
  • Request a trial to view additional results
1 books & journal articles
  • Family law scholarship goes to court: functional parenthood and the case of Debra H. v. Janice R.
    • United States
    • Columbia Journal of Gender and Law Vol. 20 Nbr. 1, January 2011
    • January 1, 2011
    ...or 'out of tune with the life about us, at variance with modern-day needs and with concepts of justice.'") (quoting Bing v. Thunig, 2 N.Y.2d 656, 667 (1957)). (93) See, e.g., People v. Bing, 76 N.Y.2d at 347 (overruling People v. Bartolomeo, 53 N.Y.2d 225 (1981), as unworkable because ......