The immunity of a charitable institution from liability to a beneficiary for personal harm caused bv *613the negligence of its employees was laid at rest in our jurisdiction in Sheehan v. North Country Community Hospital (273 N. Y. 163). This change was there said to be in harmony with the now declared public policy of the State that persons damaged by the torts of those acting as its officers and employees need not contribute their losses to the purposes of government. This change was later confirmed in Dillon v. Rochaway Beach Hospital (284 N. Y. 176) where the court said: “ Indeed, it is now settled that even a charitable hospital is liable for the acts of its servants.” We are now called upon to determine whether an outgrowth of such former immunity shall be continued and perhaps broadened or shall be restricted within its exact limits as previously laid down. I refer to the exemption of such a hospital from the rule of respondeat superior with respect to its nurses when acting professionally.
Plaintiff suffered a fracture of the femur and became a paying patient in the defendant hospital. Following an operation for the reduction of the fracture she became irrational and had to be removed from a ward and placed alone in the solarium in a bed with the side boards up. Her physician instructed the hospital night supervisor to have a close watch kept of the patient. This was at about eight-thirty p. a-i. During the night the plaintiff became very restless and attempted to remove the dressing from the wound and at least two sedatives had to be administered. Shortly before seven a. m. the nurse employed by the hospital and who was in charge of the plaintiff, asked the night supervisor for permission to leave the patient, which was granted, and the patient was left alone. A few minutes later the patient was found on the floor at the foot of the bed. She had apparently climbed over the side boards and fallen to the floor. This action was brought to recover for the damages caused by such fall. The trial court declined to submit the issues to a jury at the close of the entire case and dismissed the complaint upon the theory “ of at least partial immunity which the law has given to hospitals of a charitable character ” and also that the doctrine of respondeat superior did not apply to medical treatment by the defendant’s nurses so long as reasonable care had been exercised in their selection.
The liability of a noncharitable hospital for injuries to patients for lack of proper care is well established. The hospital is held to the duty of ordinary care in the treatment and protection of its patients and the cases are numerous in which such hospitals have been held responsible for failure to properly attend and watch delirious patients. Absence of a nurse from *614the room of a patient who is delirious, even for five minutes, may amount to negligence. (Wetzel v. Omaha Maternity & General Hospital Assn., 96 Neb. 636; Mulliner v. Evengelischer Diakonniessenverein, 144 Minn. 392.) In the instant case the failure of the hospital employees to follow the instructions of plaintiff’s physician, coupled with full knowledge on the part of such employees of her condition and the other surrounding facts, such as the removal of the patient from the ward and the administration of sedatives, followed by leaving the plaintiff unattended, were more than ample to make out a prima facie case of negligence. The case should have been submitted to the jury unless the defendant does not have to respond for the neglect of its supervisor and nurse in thus leaving the plaintiff alone and giving her opportunity to harm herself while delirious.
There are two answers to the defendant’s claim that it is not responsible for the acts of its nurse. First, watching this patient and preventing her from harming herself was. not a medical function. It was a duty which any hospital attendant, nurse or not, could have performed. Such duty is daily performed in our State hospitals for the insane by guards or attendants and does not require medical education or professional ability. Consequently the nurse who left plaintiff alone was not acting in a professional capacity when she did so, and the hospital is chargeable with her negligence.
In Volk v. City of New York (284 N. Y. 279) there was quoted with approval a statement by Kennedy, L. J., in Hillyer v. Governors of St. Bartholomew’s Hospital ([1909] 2 K. B. 820) as follows: “ It may well be, and for my part I should, as at present advised, be prepared to hold, that the hospital authority is legally responsible to the patients for the due performance of their servants within the hospital of their purely ministerial or administrative duties, such as, for example, attendances of nurses in the wards, the summoning of medical aid in cases of emergency, the supply of proper food and the like. ’’ (Italics mine.) But if there is any doubt as to the responsibility of the hospital for the neglect of the nurse there can be none as to the supervisor who authorized the nurse to leave. She was performing a purely administrative function. She was not in attendance upon the plaintiff. She was the hospital authority, acting for the hospital and quite apart from caring medically for plaintiff, and was in control of plaintiff’s nurse — not herself the nurse. There is no doubt about the hospital’s being responsible for her failure to see that plaintiff had proper attention.
*615Secondly, now that the charitable immunity doctrine has been abolished there is no longer sound reason why a hospital should not be responsible for the acts of its employees, the same as is practically every other employer. Even the State is now responsible for the acts of its doctors and nurses and its failure to guard or watch over its demented patients. This makes for better administration of the institutions and a closer attention to duty. In Liubowsky v. State of New York (260 App. Div. 416 [Third Dept.], affd. without opinion, 285 N. Y. 701) the doctrine of respondeat superior was held to apply to the State as to a death caused by the negligence of a pharmacist, a nurse and a physician, all State employees attending the deceased who was a patient in a State hospital. The applicability of this doctrine to the State was specifically discussed by Mr. Justice Crapser in the prevailing opinion and he stated that the doctrine did apply, while Mr. Justice Foster dissented upon the sole ground that the State was not liable to a patient in one of its hospitals for the torts of physicians and nurses if. the hospital had used proper care in the selection of such physicians and nurses. Other similar cases holding the State liable are Luke v. State of New York (258 App. Div. 783) in which a patient in a State hospital for the insane, while confined in a ward with sixty-two other patients with only two attendants present, was assaulted by another patient and injured and the State was held liable, and Dimitroff v. State of New York (171 Misc. 635) where a potential violent mental case with known homicidal and suicidal tendencies was left unattended in a State hospital and he committed suicide. It was there held that the State was negligent in not providing proper supervision.
In Schloendorff v. New York Hospital (211 N. Y. 125) Judge Cardozo discusses the doctrine of respondeat superior as applied to ‘hospitals. He states: “ Certain principles of law governing the rights and duties of hospitals when maintained as charitable institutions have, after much discussion, become no longer doubtful. It is the settled rule that such a hospital is not liable for the negligence of its physicians and nurses in the treatment of patients. [Citations.] This exemption has been placed upon two grounds. The first is that of implied waiver. It is said that one who accepts the benefit of a charity enters into a relation which exempts one’s benefactor from liability for the negligence of his servants in administering the charity. * * * The second ground of the exemption is the relation subsisting between a hospital and the physicians who serve it. It is said that this relation is not one of master and servant, but *616that the physician occupies the position, so to speak, of an independent contractor, following a separate calling, liable, of course, for his own wrongs to the patient whom he undertakes to serve, but involving the hospital in no liability if due care has been taken in his selection. ’ ’
Neither of these reasons now supports the extension of immunity to the defendant in the present case. The waiver doctrine was repudiated in Phillips v. Buffalo General Hospital (239 N. Y. 188.) In actual practice there is no waiver and governmental and charitable immunity has been abolished. A nurse, employed by the hospital and completely under its direction and control is in no sense an independent contractor.
The same rule now applies to all hospitals, i. e., the patient is accepted under an implied agreement that he -will receive such reasonable care and attention as the hospital knows or should know his condition to require. There is no longer any good reason why a hospital, charitable, public, or otherwise, should not be responsible to paying patients for the neglect of all of its employees ■— medical as well as administrative. • The patient has no choice in their selection. But we need not go that far in this ease. The neglect of the supervisor alone requires a reversal and a new trial.
Heeeebnan and Schenck, JJ., concur with Cbapseb, J.; Heeeebnan, J., concurs in a separate opinion, in which Cbapseb and Schenck, JJ., concur; Bliss, J., dissents, in an opinion in which Hill, P. J., concurs.
Judgment and order affirmed, with costs.