Derlicka v. Leo , 281 N.Y. 266 ( 1939 )

The General Municipal Law (Cons. Laws, ch. 24), section 50-d, imposes upon a municipal corporation ultimate liability for all damages for personal injuries, sustained by reason of the malpractice of a physician or dentist, while rendering medical services or dental services of any kind, gratuitously, to a person in a public institution maintained in whole or in part by the municipal corporation. For the wrong done to the patient by the physician the statute creates a new remedy against the city in favor of the injured person. The liability which existed at common law may still be enforced by action against the physician, but the physician would have a right to insist that in accordance with the statute he be saved harmless by the municipal corporation. The effect of any action, whether brought against the municipality or against the physician or dentist, is determined by the provisions of the statute and, by the express terms of the statute, may be maintained only if "the applicable provisions of law pertaining to the commencement of action and the filing of notice of intention to commence action against such municipal corporation shall be strictly complied with."

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The certified question is answered in the affirmative.

CRANE, Ch. J., LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.

Ordered accordingly.