Pringleton v. Bronx Hospital , 21 Misc. 2d 960 ( 1960 )

Samuel H. Hofstadter, J.

Defendant Cohen moves for dismissal of the cross complaint of the defendant Weinstein for legal insufficiency. It is alleged in the complaint of the plaintiff that the decedent had consulted with the defendant Cohen and under his direction did enter the hospital. Defendant Cohen, with the assistance of the defendant Weinstein, did operate, and death occurred in the course thereof. It is further alleged by the plaintiff that death was caused by the negligence, unskillfulness and unprofessionalism of the defendants during the course of treatment, including performance of the operation. The specified negligence is the failure of the defendants to accept, adopt and apply the accepted professional standards of practice prevailing in the City of New York; the failure to use their proper skill and best judgment in treating and caring for the conditions presented by the deceased; suffered and permitted the deceased to remain in pain for an unusually long period of time contrary to indicated practices and procedures; used counterindicated medical practices and procedures under conditions which should have indicated, because thereof, inherent, expected, anticipated and foreseen danger, risk and harm.

In the cross complaint it is alleged on behalf of the defendant Weinstein that the defendant Cohen was the surgeon in charge of the care and treatment of the deceased, and did perform the operation upon her, .that the defendant Weinstein acted under the direction and supervision of the defendant Cohen and with his approval, and that all of the acts performed by the defendant Weinstein were so performed in a careful, skillful and professional manner.

For the purpose of this motion, the relationship between the defendants Cohen and Weinstein ought not to be considered merely as one of master and servant. It would seem to be true that orders are taken at the operating table for instant execution and without delay and discussion. How and in what circumstances the cross complainant acted and whether in such manner as to render the defendant Cohen primarily liable, should await full exposure on trial. The motion is denied.