(dissenting). I dissent and vote to affirm the judgment in favor of plaintiffs.
We do not know in this case whether the laboratory technician made the blood test negligently, or whether the blood test was properly made but the result erroneously reported by the technician or by some clerk. All that is known is that Mrs. Berg’s blood was reported to be Rh positive. The evidence indicated that this was not a correct report. The consequential damages resulted from the transfusion of Rh positive blood and the ensuing pregnancy.
The Court of Appeals very recently summarized the law with respect to hospital liability for injury sustained as a result of acts, negligently performed, of its employees. While the case of Mrachek v. Sunshine Biscuit (308 N. Y. 116) is not relevant *787on the facts, Judge Froessel, speaking for the unanimous court, definitively analyzed the principles applicable to hospital liability. Among those emphasized was that the hospital is liable “ even where in the course of treatment a patient is injured through a negligent ‘ administrative ’ act, such as failing to erect sideboards after deciding they are necessary (Ranelli v. Society of N. Y. Hosp., supra), or giving a blood transfusion to the wrong patient (Necolayff v. Genesee Hosp., 270 App. Div. 648, affd. 296 N. Y. 936) ” (p. 121; emphasis in the original). Treatment in this case required a blood transfusion. True, the transfusion was to the right patient, but it was the wrong blood. Error resulted somehow from the blood test. The blood test was not the treatment itself. It was a precondition to a phase of treatment, prescribed by hospital practice and medical science, administered by hospital staff completely disassociated from the attending physician, and involving observation by a subprofessional technician with accurate clerical report. The act, therefore, was an administrative one negligently performed by hospital employees (occasioned in some way not disclosed by the only ones who had knowledge of the facts) and arising in the course of treatment of a patient. The blood test was designed neither to cure nor to mitigate the illness or pain of a patient. It involved preparation of the patient for eventual treatment.
In another recent case in the Court of Appeals, involving a blood transfusion by a hospital to a patient, the court again had occasion to refer to the principles applicable to hospital liability. In Perlmutter v. Beth David Hosp. (308 N. Y. 100), argued and decided at the same time as the Mracheh case, the court struck down a pleading which based liability upon a breach of warranty in the sale of blood for a transfusion. The case, on its facts, therefore, comes very close to the problem here. The difference is that in the'Perlmutter case only the pleading was involved, and, of course, the pleading sounded in contract. Most significantly, however, Judge Fuld, speaking for the majority of the court, noted that dismissal of the complaint “ leaves untouched the question of defendant’s liability for negligence, if any ” (p. 108).
Certainly, if, in the Perlmutter case, a defect in the blood itself, given in transfusion, is still an open question for basing hospital liability, then there is no warrant, in this ever-narrowing field of hospital immunity, to preclude hospital liability for a negligently administered or negligently reported blood test: (1) performed by hospital employees of subprofessional status, (2) in a laboratory maintained exclusively under the supervision of the hospital, *788and (3) over which the attending physician had neither direction nor responsibility.
Moreover, if the attending physician had procured an outside laboratory to make the blood test, none would question the liability of the laboratory for negligent performance of its work. The fact that a hospital chose or required that its own laboratory perform the service should not clothe negligent performance of that service with immunity.
To the injured plaintiffs it makes no difference from where or from whom the blood test and the erroneous report emanated,. From the viewpoint of the hospital this was not an instance of facilities provided for the professional performance of his responsibility by the attending physician. This was an administrative failure by the hospital, following or preceding a medical prescription as was the placing of sideboards in the Ranelli case (269 App. Div. 906, affd. 295 N. T. 850, supra) or the giving of the right blood to the wrong patient in the Necolayff case (supra).
The judgment should be affirmed.
Bastow and Rabin, JJ., concur with Botein, J.; Beeitel, J. P., dissents and votes to affirm in opinion.
Judgment reversed and the complaint dismissed. Settle order on notice.