Pivar v. Manhattan General, Inc. , 279 A.D. 522 ( 1952 )

Van Voorhis, J.

Defendant hospital appeals from an order setting aside a jury verdict in its favor of no cause of action, and granting a new trial. The action was brought to recover damages for the wrongful death of plaintiff’s intestate Gussie Pivar, who is claimed to have fallen from her hospital bed while convalescing from a gall bladder operation. A question of fact was presented concerning whether plaintiff’s intestate fell out of bed at the hospital and whether she died from that cause.

The trial court granted a new trial for error in the charge, in that the jury were not instructed that installation of sideboards on decedent’s bed would have been an administrative act on the part of the hospital as matter of law. In granting the motion for a new trial, the trial court held that it erroneously left to the jury the question whether failure to erect sideboards pertained to a medical or an administrative act or omission, instead of confining the jury to whether defendant hospital was negligent in failing to erect the sideboards.

Deciding whether sideboards should be installed to prevent a patient from falling from a hospital bed has been held to be a medical act not binding upon the hospital. (Grace v. Manhattan Eye, Ear & Throat Hosp., 301 N. Y. 660.) For that reason the defendant was exonerated from liability in the case cited, inasmuch as the physician had not ordered that sideboards be installed. On the other hand, where sideboards have been ordered, “ a different question is presented, since the professional judgment was properly made, but not carried out; it is the failure to follow up that judgment by the physical act of placing or having the sideboards placed on the bed which was the competent and producing cause of the accident. * * • * It follows that in failing, under the circumstances here, to attach the sideboards to the plaintiff’s bed or causing it to be done, the head nurse was guilty of an omission ‘ not directly concerned with medical treatment ’ in respect of which she must be considered merely as the servant of the defendant, who must respond in damages even if it is a charitable institution.” This conclusion of the trial court in Ranelli v. Society of New York Hosp. (49 N. Y. S. 2d 898, 902-903) was upheld by the Appellate Division (269 App. Div. 906) and by the Court of Appeals (295 N. Y. 850).

The same conclusion was reached in Gordon v. Harbor Hosp. (275 App. Div. 1047) where a judgment for plaintiff was also affirmed, it having been left to the jury to decide whether a determination had been made by an attending physician that sideboards were necessary as a protective measure. Negligent failure to carry out such an order was held to have related to the performance of an administrative act, for which the hospital was held liable regardless of its status as a charitable institution.

The underlying rule has been stated thus in Sutherland v. New York Polyclinic Med. School & Hosp. (273 App. Div. 29, 30-31, affd. without opinion 298 N. Y. 682): “ The legal basis for the distinction is that medical service, although procured by the hospital, is professional service rendered to the patient by a doctor or nurse, and not service rendered by the hospital through the agency of the doctor or nurse. Administrative work, on the other hand, is part of the hospital service and is performed by servants of the hospital, for whose administrative acts the hospital is responsible.”

It is necessary to examine the record in the instant case in the light of these principles. Defendant’s hospital record shows, under the heading “ Physician’s Directions ”, that at one hour and forty-five minutes before the claimed occurrence of this accident, a hospital interne directed that sideboards should be installed upon decedent’s bed. This direction was then entered in the hospital record over the signature of the interne. The entry contains no qualifications that sideboards need be installed only if the patient’s nurse considered it to be necessary. Of course, if the erection of sideboards was left by the physician to the nurse’s discretion, her decision would still be a medical act from which the hospital would be exonerated under the holding in Grace v. Manhattan Eye, Ear & Throat Hosp. (supra). Contrariwise, if, as the hospital record indicates, the direction was given by the interne as an unconditional order, it would not be subject to veto by the nurse, whose authority was subordinate to his, and her act or that of a hospital orderly in erecting the sideboards would have been administrative in character. Indeed, after deciding that sideboards should be erected, the interne’s direction to install them was an administrative act to be performed on behalf of the hospital. It would not have been a medical act, for example, for the interne to decide whether to ask an orderly or the patient’s nurse to carry out the professional decision which had been reached.

In this instance, the nurse’s testimony that the interne left the matter to her discretion is contradicted by the written entry by the interne in the record under the heading “ Physician’s Directions ”, which indicates that the order was absolute. A question of fact arises concerning whether the nurse’s testimony or the doctor’s written entry correctly states what occurred.

A new trial is necessary for the reason that the trial court did not instruct the jury that if the order to erect the sideboards was absolute its execution was administrative in character.

Appellant’s contention cannot be sustained that the complaint should have been dismissed as matter of law. This point of defendant’s is based on the circumstance that the nurse in attendance was a special nurse, employed by decedent or her family, and not by the hospital. Being a special nurse did not give her power to overrule medical decisions by the hospital interne, however, nor did it alter the circumstance that once the interne had made up his mind that sideboards should be installed as noted in the hospital record, an administrative duty came into existence on the part of the hospital to execute the order.

The interne was employed by the hospital. Although the hospital would not be liable for malpractice on account of his medical acts or decisions, his employment charged it with knowledge of such decisions as called for administrative action after they had been formed (Constant v. University of Rochester, 111 N. Y. 604; Title Guar. & Trust Co. v. Pam, 232 N. Y. 441, 453), and that required the hospital to use reasonable care to have them carried into effect. In entering this direction in the record, the interne acted for the hospital and it was his duty as agent for the hospital to use reasonable care to see that it was performed. This written entry is not only admissible in evidence under section 374-a of the Civil Practice Act, having been kept in the regular course of business (People v. Kohlmeyer, 284 N. Y. 366; Meiselman v. Crown Heights Hosp., 285 N. Y. 389), but it is also binding upon the hospital as an admission against interest by an adverse party.

Plaintiff is not bound by the testimony of the special nurse that the interne told her to erect the sideboards, any more than by her testimony that he left the whole subject to her discretion. The hospital record indicates that the interne ordered sideboards unconditionally, but does not say that he directed the nurse to do the labor, nor does it indicate what steps he took to have the order carried into effect. The natural thing would have been for the sideboards to be erected by an orderly. The nurse was an interested witness called for defendant. The complaint should not be dismissed on the assumption that her testimony is true which contradicts the hospital record. There was clearly a question of fact concerning whether the hospital exercised reasonable care in performing this administrative duty.

There are, of course, other bases on which the jury may have rendered their verdict in favor of appellant hospital, such as a determination that decedent did not fall out of bed or, as testified by her own physician, that she died a natural death from other causes. A new trial is necessary, however, inasmuch as it cannot be known on what ground the jury verdict was rendered.

The order appealed from, granting a new trial, should be affirmed, with costs.