48 Misc. 2d 717 | N.Y. Sup. Ct. | 1965
On September 13, 1965 there appeared before me the infant plaintiff, her guardian and her attorney, together with defendant’s counsel, and following a discussion the court permitted this action to be settled in the sum of $4,500. The court permitted this amount only because of the tenuous nature of the liability.
The proposed order of compromise has now been submitted. In it is provided for the payment to two doctors of fees of $375 and $250 each, respectively.
As appears from the affidavit of the father, following the accident on July 31, 1963, the infant was taken to Coney Island Hospital where she remained until August 14, 1963 and was again readmitted from February 18, 1964 until February 26, 1964. The infant is still being treated at the Coney Island Hospital clinic and a deformity of the right thumb and limitation of movement of said thumb are permanent.
An affidvait has been submitted by a doctor in which he says as follows: “That the infant was examined and treated at the Coney Island Hospital for the following injuries * * *. That the infant is still being treated at the Coney Island Hospital clinic * # *. That your deponent’s fee for services rendered the infant is $375 which is still due and owing.” It may be noted that nowhere does it say that the infant was treated by this doctor. The only reference made to the second doctor is that contained in the affidavit of the guardian ad litem as follows: ‘ ‘ That there are still due and owing the sum of $395.50 to the Coney Island Hospital; the sum of $250 to Dr. * * * and the sum of $375 to Dr.”. Not a word is said concerning the services rendered by the second doctor.
The plaintiffs’ attorney has now submitted a letter from a firm of attorneys which reads in part as follows: “ We represent the above physician who holds an assignment authorizing him to collect the amount of his charge for services rendered out of any recovery in the above patient’s personal injury action claim.” That apparently purports to be an assignment of the proceeds of a personal injury action. Justice Amsterdam held such assignment to be invalid by reason of the provisions of subdivision 1 of section 41 of the Personal Property Law in Norick v. New York Med. Coll. (N. Y. L. J., June 19, 1964, p. 13, col. 7).
However, in Grossman v. Schlosser (19 A D 2d 893, 2d Dept., 1963 [predating the Norich decision]) the court held that an
1 ‘ Any claim or demand can be transferred, except in one of the following cases:
“ 1. Where it is to recover damages for personal injury;
* « *
“3. Where a transfer thereof is expressly forbidden by a statute of the state, or of the United States, or would contravene public policy.”
In Practice Commentary by Ralph D. Semerad (McKinney’s Cons. Law of N. Y., Book 23A, General Obligations Law, § 13-101, pp. 545-546) the following is said: “ This is former subdivision (1) of section 41 of the Personal Property Law. It states the general rule that choses in action are assignable and lists three exceptions. A claim for personal injury, not reduced to judgment, cannot be assigned. Transfers contravening public policy are also forbidden. This is a broad category which apparently encompasses everything from an illegal contract to one that is personal in nature. Non-assignability may be absolute, as in the case of personal injury claims, or it may be intended as a protection to the obligor, who may waive the restriction.”
Reference to the record on appeal in the Grossman case shows that the assignment therein of the proceeds of a personal injury action reads in part as follows: “In order to induce Grossman and Leipziger to modify and extend a certain obligation of $7500 with interest owed by the above plaintiff, arising out of a certain assumption of notes secured by a purchase money chattel mortgage * * * inclusive of additional moneys advanced therefor, the undersigned plaintiff does hereby acknowledge said personal obligation and herewith collaterally secures the repayment of said $7500 plus interest, by assigning to * * * all of my right, title and interest to such moneys arising from my net recovery in the above captioned action, exclusive of counsel fees.”
However in Shapira v. United Med. Serv. (15 N Y 2d 200) the Court of Appeals dealt specifically with the rights of physicians in public hospitals to collect fees from a patient who has been admitted thereto by reason of personal injuries. 'While that action was against a nonprofit medical indemnity corporation to recover under a policy held by the injured insured, the
The court said (pp. 209-210, 213-214): “ Since the United Medical Service contracts provide benefits only where a subscriber has incurred liability to a physician for a professional fee, the major issue at the trial was whether the three subscribers did incur any liability to appellants for such a fee. The cause of action cannot be built on an express contract with the subscribers. The question is whether a cause of action on an implied contract exists at common law.” It then considered the issue as to whether an implied contract exists and the court said (p. 210): “ Appellants, therefore, had to show, unless there is a presumption of liability arising from the mere rendition of services, that the subscribers in some way engaged appellants, rather than the Bronx Municipal Hospital Center, to cure them. Appellants also had to show that appellants accepted the subscribers as their patients, and that, under the circumstances, it was mutually understood, at the time services were rendered, that appellants would be personally compensated by the subscriber * * *.
“ Here the subscribers expected the hospital center to attempt to cure them, and the hospital center undertook to do so. The hospital center, through its residents and interns, decided that Messrs. Schmier and Tobias, and Miss Sinnette should be admitted to the hospital center. The hospital center decided to what wards the patients should be admitted, and it was that decision which determined the physicians with whom the subscribers would come in contact. The hospital center assigned many physicians to the ward services to which the subscribers were also assigned.
‘‘ Freedom to choose one’s physician is an element which would buttress a claim of a contract on the part of the patient to pay the physician a fee (Beekman Downtown Hosp. v. Murphy, 203 Misc. 121; Roosevelt Hosp. v. Loewy, 185 Misc. 113). In the Beekman case [supra) * * * the court held, at page 123: ‘ Concededly the defendant was an ambulance patient treated in the ward of the plaintiff hospital; as such he “ has no freedom of choice or of contract or terms in respect of a physician who attends him at such hospital.” (Roosevelt Hosp. v. Loewy, 185 Misc. 113, 114.) It would appear therefore, that there is no contractual relationship, either express or implied in law, upon which any such treating surgeon could predicate a cause of action against a ward patient.’
“ These subscribers, however, not only lacked the choice of physicians, they never had a physician of their own. The subscribers were not private patients of the appellants. Indeed, appellants were prohibited from having private patients at the hospital center. It is evident that none of the appellants was in a position to enter into such a relationship with subscribers. The rules of the hospital center forbade it. The fact that there was no personal relationship between appellants and
The use of assignments, such as was presented to the court in this case, has been the subject of severe criticism in the past. Not one single treatment was rendered outside of the hospital. Under the Shapira case the plaintiffs owed nothing to these doctors. The assignment, therefore, in my opinion, is contrary to public policy because the doctors would be getting something to which they are not entitled. There has been absolutely no consideration for such assignment.
I perceive no difference between a patient treated for personal injuries or for any other illness. If this practice is permitted to continue, of exacting assignments from patients injured in an accident, then it is quite probable that similar exactions will be 'made from other side persons even though they have not
Under the circumstances the court refuses to recognize the so-called assignment and has signed the compromise order deleting the provision therefrom.