Matter of Bernstein v. . Beth Israel Hospital

Cardozo, J. Claimant in March, 1921, was the junior house physician in the Beth Israel Hospital. He had performed an autopsy under the direction of the superintendent, and was sewing up the corpse. The needle slipped, puncturing his finger, and blood poisoning followed. The question is whether he is an employee within the meaning of the statute (Workmen’s Compensation Act; Consol. Laws, ch. 67). *270 . Claimant’s connection with the hospital began in January, 1920. The agreement was that he would serve for two years without pay other than board, lodging and hospital uniforms. “ The duties of an interne,” as described by the superintendent, “ are administrative as well as scientific.” The description applies to the claimant as to others. “ He served as clerical assistant; took history of cases; also gathered specimens for laboratory tests; and did work ordinarily performed by technicians in hospital laboratories, and other sundry work not ordinarily performed by physicians.” The autopsy was part of the administrative routine. The claimant, while so engaged, was the employee of the hospital under whose orders he was acting. Schloendorff v. Society of N. Y. Hospital (211 N. Y. 125) is not in point. There the question arose, not between hospital and physician, but between hospital and patient. We held that a physician, while engaged in the treatment of a patient, does not charge a public hospital with liability for negligence or trespass. Such a hospital undertakes, not to heal or attempt to heal through the agency of others, but merely to supply others who will heal or attempt to. heal on their own responsibility. Liability in such cases is to be determined by the contract, express or implied, between hospital and patient. Liability in this case is to be determined by the contract, express or implied, between hospital and physician. We think the relation inter se is to be characterized as a relation of employment. A distinction is to be drawn for that purpose between the position of a visiting or consulting physician, and that of an interne, who has placed his time and service at the call of a superior. We have drawn a like distinction between attorneys at law retained for a specific service, and those serving a single employer in consideration of a salary (Greenberg v. Remick & Co., 230 N. Y. 70, 75). This claimant was under a duty to spend his days and nights at the hospital, and *271 to render any service, administrative or medical, exacted by the hospital through its administrative agents, within the range prescribed by propriety and custom. He was a servant or employee by every test of permanence of duty, of intimacy of contact, and of fullness of subjection. The fact that internes in this hospital (unlike those in many others) receive no money for their services, but only lodging, board and uniforms, does not defeat their right to an award under the statute. By section 3, subdivision 9 (Workmen’s Compensation Law [Cons. Laws, ch. 67]), “ ‘ wages ’ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer.” The hospital does not carry on its business for pecuniary gain (Dillon v. Trustees of St. Patrick’s Cathedral, 234 N. Y. 225). It elected, however, to insure. The carrier, having accepted its premium, is bound. to the same extent as if gain rather than benevolence had inspired its activities (Workmen’s Compensation Law, § 55). The order should be affirmed with costs. Hiscock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ., concur. Order affirmed.