Rabasco v. New Rochelle Hospital Ass'n

266 A.D. 971, 44 N.Y.S.2d 293, 1943 N.Y. App. Div. LEXIS 5549

Opinion

Close, P. J., Johnston and Taylor, JJ., concur; Carswell, J., concurs in the result; Hagarty, J., dissents and votes to affirm, with the following memorandum: 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 ease 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 Mm 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.