Rainey v. Persse

Order unanimously reversed, without costs, and motion denied. Memorandum: In this action for personal injuries and wrongful death, plaintiffs alleged that decedent, while a patient in defendant hospital on March 25, 1967 was given a massive overdose of a drug prepared by a nurse and ordered and administered by an intern. At the time of the incident the nurse was on private duty, and was selected and paid by decedent’s family solely to care for decedent. Plaintiffs obtained an order directing defendant hospital to produce the nurse for an examination relative to her duties, care, attendance and responsibilities to and for the decedent, pursuant to CPLR 3101 (subd. [a], par. [1]) which authorizes the examination of the employee of a party. The defendant hospital has objected to the examination of the nurse as its employee, but stated on oral argument that it had no objection to examination of the nurse as a witness. The order should not have been granted, since the nurse was not an employee of the hospital at the time of the incident. A nurse specifically retained and paid by a patient to render exclusive service to that patient is an employee of the patient and not the hospital. (Kamps v. Crown Hgts. Hosp., 277 N. Y. 602.) (Appeal from order of Erie Special Term granting motion for examination before trial.) Present — Del Vecchio, J. P., Marsh, Witmer, Gabrielli and Moule, JJ.