
    Sidney Berg et al., Appellants, v. New York Society for the Relief of the Ruptured and Crippled, Respondent, et al., Defendants.
    Argued May 24, 1956;
    decided July 11, 1956.
    
      
      Benjamin H. Siff and John J. Tullman for appellants.
    I. The negligence was administrative negligence for which the hospital is liable. (Perlmutter v. Beth David Hosp., 308 N. Y. 100; Adams v. City of New York, 285 App. Div. 868; Mrachek v. Sunshine Biscuit, 308 N. Y. 116; National Homeopathic Hosp. v. Phillips, 181 F. 2d 293; Sheehan v. North County Community Hosp., 273 N. Y. 580; Volk v. City of New York, 284 N. Y. 279; Howe v. Medical Arts Center Hosp., 287 N. Y. 698; Peck v. Towns Hosp., 275 App. Div. 302; Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27; Ranelli v. Society of N. Y. Hosp., 269 App. Div. 906, 295 N. Y. 850; Santos v. Unity Hosp., 301 N. Y. 153.) II. Defendant hospital, choosing to conduct a laboratory business in its premises rather than contract out such work to outside agencies, cannot clothe itself with immunity for the negligent performance of that work. (Biniewski v. City of New York, 267 App. Div. 108; Willcox v. County of Erie, 252 App. Div. 20, 277 N. Y. 604; Duren v. City of Binghamton, 172 Misc. 580, 258 App. Div. 694, 283 N. Y. 467; Corten v. Harbor Hosp., 279 App. Div. 673.) III. Hospitals should be made liable for the torts of their employees under the rules of respondeat superior. (President & Directors of Georgetown Coll. v. Hughes, 130 F. 2d 810; Necolayff v. Genesee Hosp., 270 App. Div. 648, 296 N. Y. 936; Ranelli v. Society of N. Y. Hosp., 269 App. Div. 906, 295 N. Y. 850; Grace v. Manhattan Eye, Ear & Throat Hosp., 276 App. Div. 955, 301 N. Y. 660; Santos v. Unity Hosp., 301 N. Y. 153; De Graw v. Corning Hosp., 277 App. Div. 942, 302 N. Y. 755; Peck v. Towns Hosp., 275 App. Div. 302; Bryant v. Presbyterian Hosp. in City of N. Y., 304 N. Y. 538; Volk v. City of New York, 284 N. Y. 279; Steinert v. Brunswick Home, 259 App. Div. 1018, 284 N. Y. 822.)
    
      
      William F. McNulty for respondent.
    I. The finding of the Appellate Division that the Eh test herein was a medical act is supported by the weight of the evidence and is in accord with the established law of New York in hospital cases. (Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Mrachek v. Sunshine Biscuit, 308 N. Y. 116; Perlmutter v. Beth David Hosp., 308 N. Y. 100, 308 N. Y. 812; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 302 N. Y. 870; McGuinn v. Knickerbocker Hosp., 276 App. Div. 1079, 302 N. Y. 633; Sutherland v. New York Polyclinic Med. School & Hosp., 273 App. Div. 29, 298 N. Y. 682; Steinert v. Brunswick Home, 259 App. Div. 1018, 260 App. Div. 810, 284 N. Y. 822; Wisner v. Syracuse Memorial Hosp., 274 App. Div. 1087; Andrews v. Roosevelt Hosp., 259 App. Div. 733.) II. The medical-administrative distinction in hospital cases is just as sound today as it was when Schloendorff v. Society of N. Y. Hosp. (211 N. Y. 125) was decided. (Matter of Bernstein v. Beth Israel Hosp., 236 N. Y. 268; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Hamburger v. Cornell Univ., 240 N. Y. 328; Bryant v. Presbyterian Hosp. in City of N. Y., 304 N. Y. 538; Mrachek v. Sunshine Biscuit, 308 N. Y. 116; Perlmutter v. Beth David Hosp., 308 N. Y. 100, 308 N. Y. 812.)
    
      Emanuel Hayt for Hospital Association of New York State, amicus curiœ, in support of respondent's position.
    I. The blood test performed herein was a medical act. (Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Necolayff v. Genesee Hosp., 270 App. Div. 648, 296 N. Y. 936; Sutherland v. New York Polyclinic Med. School & Hosp., 273 App. Div. 29, 298 N. Y. 682; Mrachek v. Sunshine Biscuit, 308 N. Y. 116; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 302 N. Y. 870; Steinert v. Brunswick Home, 172 Misc. 787, 259 App. Div. 1018; Bing v. Thunig, 1 A D 2d 887; Perlmutter v. Beth David Hosp., 308 N. Y. 100.) H. Hospital facilities and personnel are furnished for the convenience of patients and their physicians. III. A hospital should not be liable for acts over which it has no direction or control. (Volk v. City of Neiu York, 284 N. Y. 279; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125.)
   Desmond, J.

The blood test was a “ medical act ” in the sense that it was preparatory to a transfusion. However, the test was performed not by a physician or nurse but by a technician who was employed and paid by the hospital and who was so far short of ‘1 professional ’ ’ status or attainments that only four to six weeks’ training was necessary for her job. She was no independent practitioner of a learned profession, working in but not for the hospital. She was a salaried employee doing routine work which required a minimum of skill and training. Therefore, without reviewing or revising the whole Schloendorff v. Society of New York Hosp. rule (211 N. Y. 125 [1914]) and without determining whether the rule itself has outlived its usefulness, we hold that this particular hospital as the employer of this particular young woman is liable for her negligence.

The true holding of Schloendorff was that nonproprietary hospitals were exempt from liability for negligent acts or omissions of physicians and nurses in their professional medical capacities. The bases for Schloendorff were two: first, that such hospitals were charities ” and, second, that there was no ‘ ‘ respondeat superior ’ ’ situation since the hospitals were in no real sense the “ employers ” of the physicians and nurses who did the work of healing in the hospitals. The first of those Schloendorff bases was later abandoned because it was unrealistic at least as to paying patients. The second basis, whether or not it may fairly be applied in the case of physicians and nurses who are salaried members of the hospital’s personnel rather than outside professionals called in to minister to patients, is without relevance to cases like this one where the negligent person was a nonprofessional employee of the hospital.

Modern hospitals hire on salary not only clerical, administrative and housekeeping employees but also physicians, nurses and laboratory technicians of many kinds. Not only do they furnish room and board to patients but they sell them services which are “ medical ” in nature and, though furnished on physicians’ orders, are performed wholly by and under the control of the hospitals’ salaried staffs. "What reason compels us to say that of all employees working in their employers’ businesses (including charitable, educational, religious and governmental enterprises) the only ones for whom the employers can escape liability are the employees of hospitals ?

Whatever be the ultimate fate of the Schloendorff rule, this case need not be pushed into the Schloendorff mold.

The judgment appealed from should be reversed and the judgment of Trial Term reinstated, with costs in this court and in the Appellate Division.

Conway, Ch. J., Dye, Fuld, Froessel, Van Voorhis and Bürke, JJ., concur.

judgment reversed, etc.  