Opinion
October 11, 1943.
Plaintiff appeals from a judgment dismissing the complaint at the close of plaintiff's case as against defendants New Rochelle Hospital Association and Alexander J. Chilko. Plaintiff had taken his child to the hospital to have X-ray pictures taken. The X-ray technician (defendant Wallach), who was in charge of the X-ray room in the absence of defendant Chilko, requested plaintiff to assist her by holding the child on the X-ray table in a certain position and directed him to stand near the X-ray apparatus in order that he might so hold the child. When the picture was taken, the plaintiff, according to the testimony of his witnesses, was thrown by an electrical charge and was injured. From this testimony the jury could have found that defendant Wallach was negligent in instructing plaintiff to stand in such proximity to the X-ray machine as to be injured by the electrical charge. The technician in taking the X-ray may have been an independent contractor doing an act directly concerned with the treatment of the patient. But there was evidence from which the jury could have found that the technician in failing to summon nurses to assist her and in requesting the aid of plaintiff and instructing him where to stand was doing an administrative act which she performed as a servant of the hospital. ( Bickford v. Peck Memorial Hospital, 266 App. Div. 875.) The character of the act done, and not the person doing it, determines whether the function is administrative or nonadministrative. ( Dillon v. Rockaway Beach Hospital, 284 N.Y. 176.) The dismissal of the complaint as against the New Rochelle Hospital Association as a matter of law was error. Judgment as to that defendant is reversed on the law and a new trial granted, with costs to appellant to abide the event.
Close, P.J., Johnston and Taylor, JJ., concur; Carswell, J., concurs in the result;
My opinion is that the X-ray technician was rendering a medical service in taking pictures of the child. Her act in directing plaintiff in the manner of holding the child while the picture was being taken was incident to that service. The independent contractor theory should not be further refined to the end, as in this case, that the child herself could not recover for the negligence of the X-ray operator while a third person could so recover. All the acts of the operator were in the course of the medical treatment. This case is to be distinguished from Bickford v. Peck Memorial Hospital ( 266 App. Div. 875), where the negligence consisted of assigning a patient on entrance to the hospital to an inadequate bed. That act, performed independently of any treatment, we held to be administrative in nature. Defendant Chilko was the staff roentgenologist and in charge of the X-ray machinery, but there is no proof of any omission by him properly to inspect or maintain the machines. He was not present on the day of the accident and the technician was not his employee, but an employee of the hospital. As to defendant Chilko, the judgment is unanimously affirmed, without costs.