concluding that hospitals directly “undertake to treat the patient” because they “employ on a salary basis a large staff of physicians, nurses and internes” and “charge patients for medical care and treatment”
How later courts described this case
- concluding that hospitals directly “undertake to treat the patient” because they “employ on a salary basis a large staff of physicians, nurses and internes” and “charge patients for medical care and treatment”
- objecting that “the special skill of other employees (such as airplane pilots, locomotive engineers, chemists, to mention but a few) has never been the basis for denying the application of respondeat superior”
- overruling a long-held New York and Massachusetts acceptance that the responsibility of the hospital extended only to the selection of the physician with reasonable care
- describing historical view of courts that physicians, due to the nature of their professional expertise, were not subject to hospital's right of control
Written by the judges who cited it.
The opinion
Conway, Ch. J.
(concurring). I concur in result.
I regret my inability to concur in the opinion of Judge Fttld. I think that, as Judge Fuld points out on page 661 of his opinion, “ the failure of the nurses * # * to inspect and remove the contaminated linen might, perhaps, be denominated an administrative default * # I think that it was an administrative default, and that the hospital should be held to be responsible under the reasoning of the many authorities cited and collated in Judge Fuld’s opinion. We should stop there and not go on to overrule the doctrine of Schloendorff v. New York Hosp. ( 211 N. Y. 125 ). A voluntary hospital is not conducted as a business. Very few, if any, voluntary hospitals reach the end of any year without a deficit which has to be made up by its board of directors or by other charitable gifts. This is especially so of small hospitals. In my judgment, the doctrine of the Schloendorff case has justified itself over the years and has enabled voluntary hospitals to survive. That is particularly so in small communities as distinguished from *668 larger cities. We need both the large and small voluntary hospital. The alternative is public hospitals supported by county or State or stock company hospitals operating as businesses organized for profit. Since it is unnecessary, in my judgment, on these facts to overrule Schloendorff v. New York Hosp. (supra), I would reverse here on the ground that we have presented to us only a negligent administrative act performed by nurses.
Desmond, Dye, Froessel, Van Voorhis and Burke, JJ., concur with Fuld, J.; Conway, Ch. J., concurring for reversal in a separate memorandum.
Judgment reversed, etc.