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EDDINGTON MDUBA v. BENEDICTINE HOSPITAL (06/17/76)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1976.NY.43926 <http://www.versuslaw.com>; 384 N.Y.S.2d 527; 52 A.D.2d 450 June 17, 1976 EDDINGTON MDUBA, AS ADMINISTRATOR OF THE ESTATE OF REGINA MDUBA, DECEASED, APPELLANT,v.BENEDICTINE HOSPITAL, RESPONDENT Appeal from a judgment of the Supreme Court in favor of defendant, entered August 14, 1975 in Ulster County, upon a dismissal of the complaint by the court at a Trial Term (John T. Casey, J.), at the close of plaintiff's case. John J. Tullman (Arthur N. Seiff of counsel), for appellant. Cook & Tucker, P. C. (Vernon Murphy of counsel), for respondent. Greenblott, J. P. Kane, Mahoney, Main and Herlihy, JJ., concur. Author: Greenblott


Appeal from a judgment of the Supreme Court in favor of defendant, entered August 14, 1975 in Ulster County, upon a dismissal of the complaint by the court at a Trial Term (John T. Casey, J.), at the close of plaintiff's case.

Greenblott, J. P. Kane, Mahoney, Main and Herlihy, JJ., concur.

Author: Greenblott

 This is a wrongful death action to recover for negligence against the defendant hospital. The decedent was injured in an automobile accident at 8:20 p.m. on February 6, 1971 and was admitted to defendant's emergency room at 9:15 p.m. Dr. Bitash was covering the emergency room but the record does not disclose what type of treatment, if any, was administered to the decedent by him. At 9:40 p.m. decedent was examined by her own physician, Dr. Diacovo. At 10:15 p.m. he unsuccessfully attempted to obtain a blood sample from decedent for typing and cross matching. About 10:45 p.m., a sample of blood was obtained by the attending anesthesiologist, and at approximately 11:00 p.m. an operation was commenced. Blood was administered to the patient for the first time at 12:10 a.m. but she died at 1:45 a.m.

Plaintiff contends that defendant hospital was negligent in failing to provide blood for transfusion to the decedent soon enough so as to prevent the decedent from going into irreversible shock after which she had no chance for survival. The hospital does not have blood for transfusions on the premises but obtains blood from a laboratory operated by the City of Kingston, located approximately two blocks from the hospital. The theory presented by plaintiff was that Dr. Bitash was negligent in failing to take a blood sample from decedent and in failing to order blood, which negligence could have caused or contributed to the death of the decedent.

The trial court dismissed the complaint, holding that Dr. Bitash, who was under contract with defendant hospital to operate the emergency room, was not an employee of defendant hospital, but an independent contractor, and therefore, the defendant could not be held liable for the negligence of Dr. Bitash.

The contract between Dr. Bitash and the hospital provided that the defendant hospital was "desirous of appointing a Doctor or Doctors of Medicine to direct, supervise and operate the Emergency Room of the Hospital, on a contract basis and not as an employee or employees". The trial court's decision appears based exclusively on this contract. In Matter of Fidel Assn. of N.Y. (259 App Div 486, affd 287 NY 626) we considered a contract which provided that nothing contained in the agreement was to be construed as creating the relationship of employer and employee between the party of the first part and the party of the second part. We held that this provision was "not determinative of the relation in the event that the actualities indicate otherwise" (id., at p 487).

The test employed is one of control in respect to the manner in which the work is to be done (Matter of Susan Messer Assoc. [Catherwood], 33 A.D.2d 952; Dorkin v American Express Co., 74 Misc. 2d 673, affd 43 A.D.2d 877). Pursuant to the contract herein, the doctor was required to render emergency care ...


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