Mduba v. Benedictine Hospital

Decision Date17 June 1976
Citation384 N.Y.S.2d 527,52 A.D.2d 450
PartiesEddington MDUBA, as Administrator of the Estate of Regina Mduba, Deceased, Appellant, v. BENEDICTINE HOSPITAL, Respondent.
CourtNew York Supreme Court — Appellate Division

John J. Tullman, New York City (Arthur N. Seiff, New York City, of counsel), for appellant.

Cook & Tucker, Kingston (Vernon Murphy, Albany, of counsel), for respondent.

Before GREENBLOTT, J.P., and KANE, MAHONEY, MAIN and HERLIHY, JJ.

GREENBLOTT, Justice Presiding.

This is a wrongful death action to recover for negligence against the defendant hospital. The decedent was injured in an automobile accident at 8:20 P.M. on February 6, 1971 and was admitted to defendant's Emergency Room at 9:15 P.M. Dr. Bitash was covering the Emergency Room but the record does not disclose what type of treatment, if any, was administered to the decedent by him. At 9:40 P.M. decedent was examined by her own physician, Dr. Diacovo. At 10:15 P.M. he unsuccessfully attempted to obtain a blood sample from decedent for typing and cross-matching. About 10:45 P.M., a sample of blood was obtained by the attending anesthesiologist, and at approximately 11:00 P.M. an operation was commenced. Blood was administered to the patient for the first time at 12:10 A.M. but she died at 1:45 A.M.

Plaintiff contends that defendant hospital was negligent in failing to provide blood for transfusion to the decedent soon enough so as to prevent the decedent from going into irreversible shock after which she had no chance for survival. The hospital does not have blood for transfusions on the premises but obtains blood from a laboratory operated by the City of Kingston, located approximately two blocks from the hospital. The theory presented by plaintiff was that Dr. Bitash was negligent in failing to take a blood sample from decedent and in failing to order blood, which negligence could have caused or contributed to the death of the decedent.

The trial court dismissed the complaint, holding that Dr. Bitash, who was under contract with defendant hospital to operate the Emergency Room, was not an employee of defendant hospital, but an independent contractor, and therefore, the defendant could not be held liable for the negligence of Dr. Bitash.

The contract between Dr. Bitash and the hospital provided that the defendant hospital was 'desirous of appointing a Doctor or Doctors of Medicine, to direct, supervise and operate the Emergency Room of the Hospital, on a contract basis, and not as an employee or employees'. The trial court's decision appears based exclusively on this contract. In Matter of Fidel Assn. of N.Y., Inc., 259 App.Div. 486, 20 N.Y.S.2d 381, affd., 387 N.Y. 626, 39 N.E.2d 265, we considered a contract which provided that nothing contained in the agreement was to be construed as creating the relationship of employer and employee between the party of the first part and the party of the second part. We held that this provision was 'not determinative of the relation in the event that the actualities indicate otherwise' (Id. at p. 487, 20 N.Y.S.2d at p. 382).

The test employed is one of control in respect to the manner in which the work is to be done (Matter of Susan Messer Assoc., (Catherwood), 33 A.D.2d 952, 306 N.Y.S.2d 842; Dorkin v. American Express Co., 74 Misc.2d 673, 345 N.Y.S.2d 801, affd., 43 A.D.2d 877, 351 N.Y.S.2d 190). Pursuant to the contract herein, the doctor was required to render emergency care including administration of intravenous drugs and blood and patient examinations.

While conducting the operations of the Emergency Room, the doctor was to do so in accordance with the rules and regulations of the defendant hospital's governing board. Thus, under the contract, the doctor was not only bound to achieve a certain result, i.e., direct and supervise the Emergency Room, but was controlled by the defendant hospital as to the means or manner of achieving this result. Since the hospital controlled the manner in which the doctor operated the Emergency Room, Dr. Bitash was not an independent contractor but an employee of defendant hospital (Matter of Morton, 284 N.Y. 167, 30 N.E.2d 369...

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117 cases
  • Sword v. NKC Hospitals, Inc.
    • United States
    • Indiana Appellate Court
    • 31 d3 Janeiro d3 1996
    ...Fla.App., 573 So.2d 876, review denied; Arthur v. St. Peters Hosp. (1979), 169 N.J.Super. 575, 405 A.2d 443; Mduba v. Benedictine Hosp. (1976), 52 A.D.2d 450, 384 N.Y.S.2d 527.As noted supra, we have declined to adopt either Restatement provision and instead have applied existing Indiana la......
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    ...emergency room by ambulance, seeking care from the hospital, rather than from an individual physician); Mduba v. Benedictine Hosp. , 52 A.D.2d 450, 384 N.Y.S.2d 527, 529–30 (1976) (holding that "the defendant hospital, having held itself out to the public as an institution furnishing doctor......
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    ...the defendant St. Charles Hospital has not established a right to summary judgment on this ground. In Mduba v. Benedictine Hospital, 52 A.D.2d 450, 453-454, 384 N.Y.S.2d 527, the Appellate Division, Third Department, considered the issue of a hospital's liability for malpractice performed i......
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    ...remained in the trial on the basis of its potential vicarious liability for Olsen's alleged negligence (see Mduba v. Benedictine Hosp., 52 A.D.2d 450, 452–454, 384 N.Y.S.2d 527 [1976] ). The jury ultimately returned a verdict in favor of defendants, finding that Olsen did not negligently fa......
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    ...693 N.Y.S.2d 143 (1st Dep’t 1999). 265. Hill v. St. Clare’s Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904 (1986); Mduba v. Benedictine Hosp., 52 A.D.2d 450, 384 N.Y.S.2d 527 (3d Dep’t 1976); Liberman v. Gallman, 41 N.Y.2d 774, 396 N.Y.S.2d 159 (1977); 1B PJI 2:240 266. See Hill, 67 N.Y.2d 72. 267. ......
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