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October 7, 1982.

Lisa LIVINGSTON, Plaintiff,
Donald GRIBETZ, Defendant.

The opinion of the court was delivered by: POLLACK


MILTON POLLACK, District Judge.

 THE COURT: At the close of the plaintiff's case and again at the close of the entire case, defendant moves for a dismissal of the complaint for failure to make out a prima facie case, or in the alternative for a directed verdict for defendant. For the reasons shown hereafter a verdict will be directed in defendant's favor.

 This case was tried to the Court and a jury. The jurisdiction is predicated on diversity of citizenship. The action is allegedly one in negligence.This is not a malpractice suit.

 On February 26, 1979, plaintiff Nurse Livingston was a registered professional nurse licensed by the State of New York after examination, employed by the Mount Sinai Medical Center, and assigned to the postpartum obstetrical unit. Having previously been awarded a baccalaureate degree from the New School of Social Science and a Bachelor of Science degree of Lehman College, Nurse Livingston became employed by the hospital.

 At approximately 8:00 a.m. on February 26, while on duty at the medical center, Nurse Livingston was undressing a four-day old baby boy in order to demonstrate bathing techniques to his mother. After having undressed the infant for the purpose of a bathing demonstration, Nurse Livingston observed a flat red blister-like lesion, which she described as slightly larger than a dime, on the boy's neck. She said she had never seen herpes before except in magazines which she had read, but she suspected that this was herpes.

 She immediately reported the lesion to her supervisor, the charge nurse, Eva Blumstein, who came in, saw the child, and instructed Nurse Livingston to remove the baby from the nursery to the private room in which the mother was located.

 The charge nurse then telephoned Dr. Donald Gribetz, the defendant and the infant's attending pediatrician, and told him about the child, advised him that the child was being or had been transferred to a private room in which the mother was located, and the doctor confirmed the removal of the child from the nursery and arranged to visit the child promptly and see for himself what was going on.

 Meanwhile, Nurse Livingston, in handling the child's diaper and T-shirt, had noticed other lesions on baby's groin and penis.

 Dr. Gribetz arrived at the private room at approximately 10:30 that morning and examined his patient, the infant. The pediatrician was in doubt of the nature of the ailment. It could have been one of a few things, some non-infectious, but he suspected it might be herpes, and to make a diagnosis he immediately ordered that a culture of the lesion be taken and that the infant be kept with his mother in the latter's room.

 At this time Nurse Livingston was fully aware that she had observed a suspicious lesion. Indeed, she referred to it as ugly, or some other characteristic of a contagious herpes virus.

 She claims that she asked the doctor what to do about wearing gloves and gowns and was told that the essential for her was strict hand washing, and gloves and gowns were not essential.

 This is disputed by the doctor who denies any such conversation and claims that he expected the nursing staff to follow the hospital protocol and ordinary nursing intelligence and training since the nursing function was up to the nursing staff.

 The plaintiff testified that she respected the doctor's judgment because of his experience and didn't use gloves that first day, February 26.

 A witness in the isolated room, the mother of the child, has contradicted the testimony and testified that Nurse Livingston was wearing gloves on February 26.

 Be that as it may, Nurse Livingston adds that she volunteered to continue to provide nursing care for both the infant and his mother, and that she undertook to arrange for a nurse's aide to care of the other babies, who were on the floor and who would otherwise have been Nurse Livingston's responsibility for that day.

 Nurse Livingston testified that she continued to use the same gown that she had had on February 26, all that day as well as on he next day while in and out of the mother's private room, and in washing her hands she would roll up her sleeves, the sleeves on a long-sleeved gown, and then roll them down again.

 On the following morning, February 27, Nurse Livingston continued to provide nursing service for both the mother and the infant in the isolation of the mother's room. The infant showed no signs of illness and continued to eat well, and she so reported to the doctor upon his normal routine inquiries when visiting the child.

 Later on this same day the laboratory reported that the cultures taken of the baby were positive for herpes. The doctor was so notified.

 Following the lab report and further examination of the child and considering the diagnosis made, Dr. Gribetz consulted with the head of the Department of Pediatrics and thereafter ordered his patient transferred to the pediatric intensive care unit for treatment of herpes. No special instructions were given to the nursing staff in the intensive care unit.

 The transfer of the child was completed by the hospital staff. Nurse Livingston did not follow the infant into the intensive care unit.

 There have been presented manuals of Mount Sinai Hospital relating to infectious disease observed in the hospital and the procedures and precautions to be taken. Exhibit 2, the Mount Sinai infection control manual, specifies that in cases of strict isolation -- and plaintiff's counsel has identified the particular condition considered to apply here, namely a condition deemed hazardous by the physician in charge to other patients, personnel, and visitors -- the following procedures are to be followed:

 First, the patient is to be placed in a room with hand washing facilities alone, or with other patients having the same condition.

 The patient was placed in such a room.

 "2. All items in the room or coming out of the room are considered contaminated.

 "3. All personnel and visitors must wear gowns and masks."

 The head of the Pediatrics Department has testified that even these infection control procedures were by the Pediatrics Department as a matter of practice ...

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