
    Robert P. Weiss, as Administrator of the Estate of Providence L. Weiss, Deceased, Respondent, v. Harold Rubin et al., Appellants-Respondents, and Stanford Pulrang, Appellant.
    Argued January 12, 1961;
    decided March 2, 1961.
    
      
      J oseph J. Brophy, Desmond T. Barry and Richard E. Shandell for Stanford Pulrang, appellant.
    I. There was not sufficient proof of malpractice on the part of defendant Pulrang to warrant the submission of that issue to the jury. (Pike v. Honsinger, 155 N. Y. 201; Robbins v. Nathan, 189 App. Div. 827; Morwin v. Albany Hosp., 7 A D 2d 582; Baidach v. Togut, 8 A D 2d 838; Blackburn v. Baker, 227 App. Div. 588; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870; Richardson v. Denneen, 192 Misc. 871; Baker v. Wentworth, 155 Mass. 338; Kawacz v. Delaware, L. & W. R. R. Co., 259 N. Y. 166; Fierro v. New York Cent. R. R. Co., 256 N. Y. 446; Bullock v. Parkchester Gen. Hosp., 3 A D 2d 254, 4 N Y 2d 894.) II. If, on any view of the case, plaintiff was entitled to recover damages against defendant Pulrang, defendant Pulrang was entitled to indemnity over against the codefendants who were the only active tort-feasors in this case. (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N. Y. 175; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204.)
    
      John J. Tomich, Joseph Dean Edwards and Olin S. Nye for Harold Rubin, appellant-respondent.
    I. Defendant Pulrang was a joint tort-feasor and the evidence amply supports the jury’s verdict in that respect. (Robbins v. Nathan, 189 App. Div. 827; Morwin v. Albany Hosp., 7 A D 2d 582; Baidach v. Togut, 8 A D 2d 838; Richardson v. Denneen, 192 Misc. 871; Blackburn v. Baker, 227 App. Div. 588; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870; Bullock v. Parkchester Gen. Hosp., 3 A D 2d 254.) II. Defendant Pulrang was actively negligent and may not recover on his cross complaint. III. On the cause of action for conscious pain and suffering, the verdict was excessive and should be set aside.
    
      William T. Gallagher for St. John’s Riverside Hospital, appellant-respondent.
    There was ample evidence of negligence by defendant-appellant Pulrang. It being active and primary in nature, there may be no judgment over. (Phoenix Bridge Co. v. Creem, 102 App. Div. 354, 185 N. Y. 580; Scott v. Curtis, 195 N. Y. 424; Iroquois Gas Corp. v. International Ry. Co., 240 App. Div. 432; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686; Adler v. Tully & Di Napoli, 274 App. Div. 1001, 300 N. Y. 662; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447.)
    
      Emile Z. Berman and Ambrose Doskow for respondent.
    I. The jury’s finding of negligence on the part of defendant Pulrang is supported by the evidence. (Baidach v. Togut, 8 A D 2d 838; Bakal v. University Hgts. Sanitarium, 198 Misc. 651, 277 App. Div. 572, 302 N. Y. 870.) II. The claim that the reduced verdict on the second cause of action is excessive presents no issue for review by this court. In any event, that claim is untenable. (Zipprich v. Smith Trucking Co., 2 N Y 2d 177; Dimon v. New York Cent. & H. R. R. R. Co., 173 N. Y. 356; Serano v. New York Cent. & H. R. R. R Co., 188 N. Y. 156.)
   Fboessel, J.

Decedent died as the result of a transfusion of incompatible blood administered during the course of an operation at defendant hospital.

The liability of the defendants anesthetist and hospital are conceded upon this appeal. As to the defendant surgeon, we are of the opinion that, on the record before us, the question of his negligence was properly submitted to the jury for their determination.

The proof showed that he initiated the blood bank in the Hospital ”; that it was hospital procedure to prepare a written order for the production of blood for transfusion purposes during the course of an operation (except in emergency situations, concededly not present here); that “ Nobody can order blood to the operating room except the Doctor”; that he had not ordered “ the production of the blood in the operating room at that time ”, and he knew that he had not ordered it—indeed, it had occurred to him at the time “ to inquire as to how that blood got to the operating room ”, but he did not do so.

The jury thus had a right to find that, in ordering the blood transfused without question and under those circumstances, defendant surgeon breached his duty of reasonable care to plaintiff’s decedent.

Accordingly, the judgment appealed from should be affirmed, with costs.

Van Voorhis, J. (dissenting).

On this appeal where the wrong type of blood was administered by transfusion, the evidence is ample to hold the hospital and the defendant Rubin, but the evidence is insufficient to hold the attending physician appellant Stanford Pulrang. In the midst of the operation which turned out to require an hour longer than had been anticipated, the anesthetist Keenan (agent for defendant Rubin) said to Dr. Pulrang: “ Doctor, I have blood ready for this lady. Shall I give it? ” Doctor Pulrang said yes, and the transfusion was administered. Under the rules and practice of the hospital, it was the sole responsibility of the hospital and not that of the attending physician to prepare and administer blood transfusions. The responsibility of the attending physician was confined to making decisions whether transfusions should be given, and directing the hospital to give them. In order to make certain that transfusions will not be given in cases where the attending physician has not directed them to be administered, the rules of the hospital provide that they shall be given only' on the written order of the physician except in emergencies. When a written order has been given, all the rest is done by the hospital. If Doctor Pulrang had given a written order for a transfusion in this instance, transfusion would have been administered exactly as it was without further participation by Doctor Pulrang. The only act of negligence ascribed to Doctor Pulrang is that, not having previously ordered the transfusion by written order, he should have become suspicious that something was wrong and checked on whether the hospital had performed its responsibilities in the preparation of the blood for transfusion. If he had given a written order (as he did in connection with a previous operation on the same patient), the entire responsibility for typing, erossmatching and administering the transfusion would have been upon the hospital. The attending surgeon would have been absolved from all responsibility in connection with its preparation and administration. The circumstance that, insofar as Doctor Pulrang was concerned, his need for a transfusion appeared to have been anticipated by the hospital does not seem to me to have changed this responsibility. The production of the blood ready to all appearances for the transfusion signified that whatever was necessary in the technical preparation had been performed and performed properly. Ko one questions that a transfusion was administered to the patient by Doctor Pulrang’s direction, which is the sole purpose designed to be served by the provision in the rules requiring a written order.

The sad outcome of this incident ought not to cause us to deviate from the concept of Bing v. Thunig (2 N Y 2d 656) that the attending surgeon is no longer responsible for the operation of the hospital in medical matters, which was the rationale underlying Schloendorff v. New York Hosp. (211 N. Y. 125). The modern hospital furnishes “ a large staff of physicians, nurses and internes, as well as administrative and manual workers” whereby “the hospital” does “undertake to treat the patient ’ ’. (Bing v. Thunig, supra, p. 666). Present-day hospitals do assume these responsibilities, which was the reason for the transference of liability in such matters from the attending physician to the hospital. In this instance the hospital made a grievous mistake. But the mere circumstance that it prepared to serve the patient by the administration of a transfusion without a written order from the physician, instead of awaiting his written order, has no tendency in my mind to put the surgeon on notice that the hospital had not in reality prepared the blood for his patient but for another patient who had previously been operated upon.

As regards appellant Pulrang, the judgment should be reversed and the complaint dismissed, with costs.

Chief Judge Desmond and Judges Dye, Burke and Foster concur with Judge Froessel ; Judge Van Voorhis dissents in an opinion in which Judge Fuld concurs.

Judgment affirmed.  