211 N.Y. 125, Schloendorff v. Society of New York Hospital

Citation211 N.Y. 125
Party NameMARY E. SCHLOENDORFF, Appellant, v. THE SOCIETY OF THE NEW YORK HOSPITAL, Respondent.
Case DateApril 14, 1914
CourtNew York Court of Appeals

Page 125

211 N.Y. 125

MARY E. SCHLOENDORFF, Appellant,

v.

THE SOCIETY OF THE NEW YORK HOSPITAL, Respondent.

New York Court of Appeal

April 14, 1914

Argued March 11, 1914.

Page 126

COUNSEL

Augustus Van Wyck, George J. McDonnell and Arthur D. Truax for appellant. The evidence in this case clearly showed that the defendant violated its contract by operating upon the plaintiff without her consent, and this

Page 127

question of fact should have been submitted to the jury for its decision. (Clemence v. City of Auburn, 66 N.Y. 334; Sheridan v. B. C. R. R. Co., 36 N.Y. 39; Colt v. S. A. R. R. Co., 49 N.Y. 671; Train v. H. P. Ins. Co., 62 N.Y. 598; Pratt v. D. H. M. F. Ins. Co., 130 N.Y. 206.)

Austen G. Fox and Wilson M. Powell, Jr., for respondent. The court was right in holding that the respondent was not liable to the appellant. (Hordern v. Salvation Army, 199 N.Y. 233; Ward v. St. Vincent's Hospital, 78 A.D. 320; People ex rel. N.Y. Hospital v. Purdy, 58 Hun, 386; 126 N.Y. 679.)

CARDOZO, J.

In the year 1771, by royal charter of George III., the Society of the New York Hospital was organized for the care and healing of the sick. During the century and more which has since passed, it has devoted itself to that high task. It has no capital stock; it does not distribute profits; and its physicians and surgeons, both the visiting and the resident staff, serve it without pay. Those who seek it in search of health, are charged nothing, if they are needy, either for board or for treatment. The well-to-do are required by its by-laws to pay $7 a week for board, an amount insufficient to cover the per capita cost of maintenance. Whatever income is thus received, is added to the income derived from the hospital's foundation, and helps to make it possible for the work to go on. The purpose is not profit, but charity, and the incidental revenue does not change the defendant's standing as a charitable institution. (People ex rel. Society of N.Y. Hospital v. Purdy, 58 Hun, 386; 126 N.Y. 679.)

To this hospital the plaintiff came in January, 1908.She was suffering from some disorder of the stomach. She asked the superintendent or one of his assistants what the charge would be and was told that it would be $7 a week. She became an inmate of the hospital, and after some weeks of treatment the house physician, Dr.

Page 128

Bartlett, discovered a lump, which proved to be a fibroid tumor. He consulted the visiting surgeon, Dr. Stimson, who advised an operation. The plaintiff's testimony is that the character of the lump could not, so the physicians informed her, be determined without an ether examination. She consented to such an examination, but notified Dr. Bartlett, as she says, that there must be no operation. She was taken at night from the medical to the surgical ward and prepared for an operation by a nurse. On the following day ether was administered, and while she was unconscious a tumor was removed. Her testimony is that this was done without her consent or knowledge. She is contradicted both by Dr. Stimson and by Dr. Bartlett, as well as by many of the attendant nurses. For the purpose of this appeal, however, since a verdict was directed in favor of the defendant, her narrative, even if improbable, must be taken as true. Following the operation, and, according to the testimony of her witnesses, because of it, gangrene developed in her left arm; some of her fingers had to be amputated; and her sufferings were intense. She now seeks to charge the hospital with liability for the wrong.

Certain principles of law governing the rights and duties of hospitals when maintained as charitable institutions have, after much discussion, become no longer doubtful. It is the settled rule that such a hospital is not liable for the negligence of its physicians and nurses in the treatment of patients. (Hordern v. Salvation Army, 199 N.Y. 233; Collins v. N.Y. Post Graduate Med. School & Hospital, 59 A.D. 63, and cases there cited; Wilson v. Brooklyn Homeopathic Hospital, 97 A.D. 37; Cunningham v. Sheltering Arms, 135 A.D. 178; Bruce v. Central M. E. Church, 147 Mich. 230; U. P. R. Co. v. Artist, 60 F. 365; Hearns v. Waterbury Hospital, 66 Conn. 98; Hillyer v. St. Bartholomew's Hospital, L. R. [2 K. B. 1909] 820.) This exemption has been placed upon two grounds. The first is that of implied waiver. It is

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said that one who accepts the benefit of a charity enters into a relation which exempts one's benefactor from liability for the negligence of his servants in administering the charity. (Hordern v. Salvation Army, supra.)The hospital remains exempt though the patient makes some payment to help defray the cost of board. (Collins v. N.Y. Post Graduate Med. School & Hospital, supra; Wilson v. Brooklyn Homeopathic Hospital, supra; Cunningham v. Sheltering Arms, supra; McDonald v. Mass. Gen. Hospital, 120 Mass. 432; Downes v. Harper Hospital, 101 Mich. 555; Powers v. Mass. Homeopathic Hospital, 109 F. 294.) Such a payment is regarded as a contribution to the income of the hospital to be devoted, like its other funds, to the maintenance of the charity. The second ground of the exemption is the relation subsisting between a hospital and the physicians who serve it. It is said that this relation is not one of master and servant, but that the physician occupies the position, so to speak, of an independent contractor, following a separate calling, liable, of course, for his own wrongs to the patient whom he undertakes to serve, but involving the hospital in no liability if due care has been taken in his selection. On one or the other, and often on both of these grounds, a hospital has been held immune from liability to patients for the malpractice of its physicians. The reasons that have led to the adoption of this rule are, of course, inapplicable where the wrong is committed by a servant of the hospital and the sufferer is not a patient. It is, therefore, also a settled rule that a hospital is liable to strangers, i. e., to persons other than patients, for the torts of its employees committed within the line of their employment. (Kellogg v. Church Charity Foundation, 203 N.Y. 191; Hordern v. Salvation Army, supra.)

In the case at hand, the wrong complained of is not merely negligence. It is trespass. Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon

Page 130

who performs an operation without his patient's consent, commits an assault, for which he is liable in damages. (Pratt v. Davis, 224 Ill. 300; Mohr v. Williams, 95 Minn. 261.)This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. The fact that the wrong complained of here is trespass rather than negligence, distinguishes this case from most of the cases that have preceded it. In such circumstances the hospital's exemption from liability can hardly rest upon implied waiver. Relatively to this transaction, the plaintiff was a stranger. She had never consented to become a patient for any purpose other than an examination under ether. She had never waived the right to recover damages for any wrong resulting from this operation, for she had forbidden the operation. In this situation, the true ground for the defendant's exemption from liability is that the relation between a hospital and its physicians is not that of master and servant. The hospital does not undertake to act through them, but merely to procure them to act...

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465 practice notes
  • 464 F.2d 772 (D.C. Cir. 1972), 22099, Canterbury v. Spence
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • May 19, 1972
    ...which in our view should govern this appeal. The rest we leave for future litigation. [12] Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914). See also Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104 (1960), clarified, 187 Kan. 186, 354 P.2d 670 (1960); ......
  • 409 P.2d 74 (Ariz.App. 1965), 2 CA-CIV 95, Shetter v. Rochelle
    • United States
    • Arizona Court of Appeals of Arizona
    • December 17, 1965
    ...consent, that he has committed a battery upon the patient and is liable in damages therefor. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (1914); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439 (1905); Pratt v. Davis, 118 Ill......
  • 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
    ...of Respondeat superior to physician employees apparently had its genesis in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). (Nurses carrying out physicians' medical orders, to whose authority they were subject, held not servants of hospital). The New York cou......
  • 465 A.2d 294 (Conn. 1983), Logan v. Greenwich Hosp. Ass'n
    • United States
    • Connecticut Supreme Court of Connecticut
    • September 6, 1983
    ...in damages." Schmeltz v. Tracy, 119 Conn. 492, 495-96, 177 A. 520 (1935) (quoting, Cardozo, 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). "......
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446 cases
  • 464 F.2d 772 (D.C. Cir. 1972), 22099, Canterbury v. Spence
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • May 19, 1972
    ...which in our view should govern this appeal. The rest we leave for future litigation. [12] Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914). See also Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104 (1960), clarified, 187 Kan. 186, 354 P.2d 670 (1960); ......
  • 409 P.2d 74 (Ariz.App. 1965), 2 CA-CIV 95, Shetter v. Rochelle
    • United States
    • Arizona Court of Appeals of Arizona
    • December 17, 1965
    ...consent, that he has committed a battery upon the patient and is liable in damages therefor. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (1914); Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 1 L.R.A., N.S., 439 (1905); Pratt v. Davis, 118 Ill......
  • 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
    ...of Respondeat superior to physician employees apparently had its genesis in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). (Nurses carrying out physicians' medical orders, to whose authority they were subject, held not servants of hospital). The New York cou......
  • 465 A.2d 294 (Conn. 1983), Logan v. Greenwich Hosp. Ass'n
    • United States
    • Connecticut Supreme Court of Connecticut
    • September 6, 1983
    ...in damages." Schmeltz v. Tracy, 119 Conn. 492, 495-96, 177 A. 520 (1935) (quoting, Cardozo, 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). "......
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1 firm's commentaries
  • Summary of Six Cases Addressing Physician Practice of Alternative Therapies
    • United States
    • LexBlog United States
    • May 10, 2001
    ...patient’s right “to determine what shall be done with his own body.” Id. at 996, quoting Schloendorff v. Society of the New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92 (1914). [This is important language and should be quoted in full. Note that usually, we quote selectively.] [transition/l......
17 books & journal articles
  • THE OTHER PILL: EXPANDING ACCESS TO PRE-EXPOSURE PROPHYLAXIS TO PREVENT HIV TRANSMISSION AMONG MINORS IN NEW YORK.
    • United States
    • Fordham Urban Law Journal Vol. 44 Nbr. 3, July - July 2017
    • July 1, 2017
    ...and where, at least implicitly, queer or LGBT-identified individuals are pressured to assimilate into such a model of existence. (105.) 211 N.Y. 125, 129 (1914) (holding that a surgeon who performs an operation without patient consent commits an assault). (106.) Paula Walter, The Doctrine o......
  • Chief Judge Jonathan Lippman: a new era.
    • United States
    • Albany Law Review Vol. 73 Nbr. 3, March 2010
    • March 22, 2010
    ...COURT OF APPEALS ..." (1997), available at http://www.courts.state.ny.us/history/ elecbook/thereshallbe/cover.htm. (2) Id. at 50. (3) 211 N.Y. 125, 105 N.E. 92 (1931) (4) Id. at 129, 105 N.E. at 93 ("Every human being of adult years and sound mind has a right to determine what sha......
  • Piobiems of Consent in Medical Treatment
    • United States
    • Military Law Review Nbr. 62, October 1973
    • October 1, 1973
    ...form, what constitutes an emergency, and the emergency doctrine as it applies to consent. Sehloendorff V. Society of New York Honp., 211 N.Y. 125, 128, 105N.E. 92, sa (1814). Subsequently, the article will analyze the provisions for compulsory medical treatment of the adult as apposed to th......
  • When love and abuse are not mutually exclusive: the need for government intervention.
    • United States
    • Issues in Law & Medicine Vol. 12 Nbr. 4, March 1997
    • March 22, 1997
    ...& Supp.1994). (2) Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891). (3) Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30 (1914). (4) Id. (5) See Cruzan v. Dir., Missoun Dept. of Health, 497 U.S. 261, 269-73 (1990). (6) See Srophy v. New England Sinai Hos......
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