Cox v. Cordice
| Decision Date | 14 December 1982 |
| Citation | 90 A.D.2d 297,457 N.Y.S.2d 2 |
| Parties | Perry COX, as Executor of the Estate of Mary Williams, Deceased, Plaintiff, v. John V. CORDICE, Jr., M.D. and Memorial Hospital For Cancer and Allied Diseases, Defendants, Hillcrest General Hospital, Defendant-Appellant. HILLCREST GENERAL HOSPITAL, Third-Party Plaintiff-Appellant, v. Benjamin GORDON, Third-Party Defendant, and Leonard B. Starr, Third-Party Defendant-Respondent. HILLCREST GENERAL HOSPITAL, Third-Party Plaintiff-Appellant, v. Leonard B. STARR, M.D., P.C., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Norman Bard, Beth J. Goldmacher, New York City, of counsel (David H. Sculnick, with her on brief, Gordon & Silber, P.C., New York City), for defendant-appellant and third-party plaintiff-appellant Hillcrest.
Howard R. Cohen, New York City, of counsel (Julian S. Greenspun, New York City, with him on brief, Bower & Gardner, New York City, for respondent Starr).
Before MURPHY, P.J., and KUPFERMAN, SULLIVAN, ROSS and MILONAS, JJ.
Plaintiff's decedent, Mary Williams, underwent a bilateral, radical mastectomy on June 13, 1973. The operation was performed by defendant Cordice in defendant Hillcrest General Hospital (Hospital). The operation was, as the jury found, actually unnecessary. Defendant Gordon, a pathologist, had negligently misread the decedent's tissue sample; he found a malignancy where none existed. At the time, Gordon was acting as a substitute for the Hospital's regular pathologist, defendant Starr.
After trial, the jury found in plaintiff's favor against the Hospital and Dr. Cordice. The jury apportioned liability 60% as against the Hospital and 40% as against Dr. Cordice. It also found that the liability of the Hospital was predicated on the fault of Dr. Gordon rather than upon any negligence on the part of Dr. Starr. Consequently, the trial court dismissed the Hospital's third-party action against defendant Starr. Implicitly, the trial court also dismissed the third-party action against defendant Leonard B. Starr, M.D., P.C. (Corporation).
The sole question presented upon appeal is whether the Hospital is entitled to recover on its third-party action against Starr and his Corporation. On March 10, 1973, the Hospital, Starr and his Corporation entered into an agreement. To the extent here relevant, that agreement provides:
1. Dr. Starr shall assume the duties of Director of Pathology Service in the Hospital. As such Director, Dr. Starr shall be responsible for the supervision of the Department of Pathology and Clinical Laboratory Service and shall furnish his own services as a full-time professional pathologist at the Hospital; provided, however, Dr. Starr shall arrange for a substitute professional pathologist while he is absent on account of vacation, sick leave or attendance at medical meetings, as provided for elsewhere in this Agreement. Any such substitute professional pathologist shall be subject to the prior written consent of the Hospital. The Corporation shall be responsible for the conduct of the Pathology services in accordance with generally accepted professional practice standards. Dr. Starr will be a member of the Active Medical Staff of the Hospital.
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5. The Corporation represents and warrants that it carries and...
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