Bernstein v. Beth Israel Hosp.

• Decision Date: 13 July 1923
• Citation: 140 N.E. 694,236 N.Y. 268
• Parties: BERNSTEIN v. BETH ISRAEL HOSPITAL et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 268

140 N.E. 694

BERNSTEIN

v.BETH ISRAEL HOSPITAL et al.

Court of Appeals of New York.

July 13, 1923.

Proceeding under the Workmen's Compensation Act by Solen S. Bernstein, claimant, opposed by the Beth Israel Hospital, employer, and the Travelers' Insurance Company, insurance carrier. From an order of the Appellate Division (205 App. Div. 419,199 N. Y. Supp. 740) affirming an award of the State Industrial Board, the employer and insurance carrier appeal.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

E. C. Sherwood and William B. Davis, both of New York City, for appellants.

Carl Sherman, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

CARDOZO, J.

Claimant in March, 1921, was the junior house physician in the Beth Israel Hospital. He had performed an autopsy under the direction of the superintendent, and was sewing up the corpse. The needle slipped, puncturing his finger, and blood poisoning followed. The question is whether he is an employee within the meaning of the statute. Workmen's Compensation Act (Consol. Laws, c. 67).

Claimant's connection with the hospital began in January, 1920. The agreement was that he would serve for two years without pay other than board, lodging and hospital uniforms. ‘The duties of an interne,’ as described by the superintendent, ‘are administrative as well as scientific.’ The description applies to the claimant as to others. ‘He served as clerical assistant; took history of cases; also gathered specimens for laboratory tests; and did work ordinarily performed by technicians in hospital laboratories, and other sundry work not ordinarily performed by physicians.’ The autopsy was part of the administrative routine.

The claimant, while so engaged, was the employee of the hospital under whose orders he was acting. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 105 N. E. 92,52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581, is not in point. There the question arose, not between hospital and physician, but between hospital and patient. We held that a physician, while engaged in the treatment of a patient, does not charge a public hospital with liability for negligence or trespass. Such a hospital undertakes, not to heal or attempt to heal through the agency of others, but merely to supply others who will heal or attempt to heal on their own responsibility. Liability in such cases is to be determined by the contract, express or implied, between hospital and patient. Liability in this case is to be determined by the contract, express or implied, between hospital and physician. We think the relation inter se is to be characterized as a relation of employment. A distinction is to be drawn for that purpose between the position of a visiting or consulting physician, and that of an interne, who has placed his time and service at the call of a superior. We have drawn a like distinction between attorneys at law retained for a specific service, and those serving a single employer in consideration of a salary. Greenberg v....