Norr v. Spiegler , 56 A.D.2d 389 ( 1977 )

Silverman, J.

In this malpractice action against defendant and third-party plaintiff Dr. Enrique Spiegler, Dr. Spiegler interposed a third-party claim against the City of New York and against the New York City Health and. Hospitals Corporation ("NYCHHC”). By cross notice of motion, Dr. Spiegler asked for summary judgment against said third-party defendants, and further, that said third-party defendants be directed to save him harmless and assume his defense. The cross motion for summary judgment was denied and movant appeals.

Subdivision 1 of section 50-d of the General Municipal Law provides that: "[Ejvery municipal corporation shall be liable for, and shall assume the liability, to the extent that it shall save him harmless, of any resident physician, physician * * * rendering medical * * * services of any kind to a person without receiving compensation from such person in a public institution maintained in whole or in part by the municipal corporation * * * for damages for personal injuries alleged to have been sustained by such person by reason of the malpractice of such resident physician, physician * * * while engaged in the rendition of such services.”

The services out of which the malpractice action arose are alleged to have been rendered in December, 1970 at the Gouverneur Ambulatory Clinic ("GAC”), which is conducted at what was formerly the Gouverneur Hospital of the City of New York. The chief issue argued by the parties is whether GAC is a "public institution maintained in whole or in part by the municipal corporation” within the meaning of the statute.

The Gouverneur Hospital was formerly a city hospital. The clinic is run in the physical premises of what was formerly the Gouverneur Hospital. In or about 1968, the city ceased to run Gouverneur Hospital as a city hospital. It did, however, enter into an agreement with Beth Israel Medical Center, providing in part in one of its amendments as follows:

" '1) The City hereby retains the Affiliate and the Affiliate agrees for the period beginning July 1, 1968 and terminating on November 30, 1969 to establish, supervise and maintain, with adequate staff and equipment, under the general supervision of the Commissioner or his duly designated representative, a clinic which shall be known as the 'Beth-Israel Gouverneur Ambulatory Care Unit’ (hereinafter referred to as the 'Ambulatory Care Unit’) which shall include an Out-Patient Department, Emergency Room and Home Care Service.

"The medical services and administrative operation of the Center shall be subject to general supervision of the Commissioner or his duly designated representative.’ ”

For the period here involved, December, 1970, the operation was covered by a contract dated July 1, 1970. Although this contract nowhere refers explicitly to the GAC, it is conceded by the city that the avowed purpose, according to the Board of Estimate’s minutes, was the "continuation” of the "Gouverneur Health Program.” That contract stated in part:

"whereas, it is incumbent upon the City to provide health and medical care services for its citizens * * *

"(1) The Hospital agrees, for the nine month period beginning July 1, 1970 and ending March 31, 1971, under the general supervision and control of the Commissioner or his duly delegated representative, to provide the professional and ancillary staff, equipment, supplies, facilities and premises necessary for the operation of and to continue to conduct and operate an ambulatory services program at the outpatient and/or emergency departments or clinics of the Hospital. * * *

“(2) The operation of the ambulatory services program shall be performed in a competent manner by the Hospital and to the best of its ability and shall be performed under the general supervision and control of the Commissioner. * * *

“(b) Ultimate Responsibility of the Commissioner The Commissioner shall be ultimately responsible for the policies, procedures, and standards to govern the operation of ambulatory services”.

The contract further provides that the city shall pay to Beth Israel a sum not to exceed $2,824,200 “to cover the deficit which it is anticipated will be incurred by the Hospital in the operation of its ambulatory care services”. In addition although the July 1, 1970 contract does not so provide, it is conceded that pursuant to the continuing provisions of the earlier contract, the city charged no rent for the use of the space and equipment at Gouverneur Hospital and agreed to and did furnish plant maintenance and utility services.

We thus have an institution whose deficits are to be met by the city, on physical premises that were formerly a city hospital and that are identified in the public mind as a city institution, still furnished and physically maintained by the city, under contracts in which in one version "the City * * * retains” Beth Israel to render services and in the later version recognizes the duty of "the City to provide health and medical care services for its citizens” all “under the general supervision and control of the Commissioner,” a city official.

While the phrase "a public institution maintained in whole or in part by the municipal corporation” is not defined in the statute, and there is obviously room for differences of opinion on the subject, we think that in view of the particular circumstances, arrangements, and history of the GAC, that facility may fairly be considered a “public institution maintained * * * in part by the municipal corporation.”

The next question is whether Dr. Spiegler falls within the class of physicians intended to be covered within the statute. We think he does. He is a “physician * * * rendering medical * * * services * * * to a person without receiving compensation from such person in a public institution”.

Schmid v Werner (277 App Div 520 [1950], affd 303 NY 754 [1952]) held that the then statute was inapplicable to a physician who was on the paid staff of the city even though no charge for the medical services was made to the patient by the city. But the statute at that time was limited to physicians rendering services "gratuitously.” By chapter 897 of the Laws of 1956 the statute was amended so as to strike the word "gratuitously” and to add the qualification "without receiving compensation from such person”. Thus the critical fact becomes not whether the physician is paid by someone, but whether the patient pays the physician. It appears to be undisputed that Dr. Spiegler did not receive any compensation from plaintiff for his services.

Accordingly, the statute requires the city to indemnify Dr. Spiegler.

However, Dr. Spiegler is not entitled to indemnification under section 50-d of the General Municipal Law from third-party defendant New York City Health and Hospitals Corporation. To begin with, it does not appear that NYCHHC has anything to do with the GAC. It is not a party to any of the contracts relating to GAC. Further, section 50-d only applies to a "municipal corporation,” and it has been held that NYCHHC is not a municipal corporation. (Bender v Jamaica Hosp., 40 NY2d 560 [1976].) While the provisions of section 50-e of the General Municipal Law have been made applicable to the NYCHHC (see New York City Health and Hospitals Corporation Act, § 20; L 1969, ch 1016, as amd; Matter of Smalls v New York City Health and Hosps. Corp., 55 AD2d 537 [1976]), our attention has not been called to any statute making section 50-d applicable.

Accordingly, the order should be modified, on the law, so as to grant the motion of defendant and third-party plaintiff against the City of New York to the extent of adjudicating that the city is liable for and shall assume the liability to the extent that it shall save third-party plaintiff harmless for damages for personal injuries alleged to have been sustained by plaintiff by reason of alleged malpractice of said third-party plaintiff while engaged in the rendition of medical services to plaintiff at the Gouverneur Ambulatory Clinic, and otherwise affirmed, without costs.