(dissenting). In this negligence action, plaintiff’s complaint was dismissed at the close of his case. He adduced evidence that he became a patient in defendant’s hospital on July 31,1949. After more than two weeks of treatment by physicians and nurses “ dressed all in white ”, and on August *54316th, he was told by one of the attending physicians that he could “ go home tomorrow.” His brother thereupon paid the hospital bill and sent him his clothes.
The following day, on August 17th, while dressed and waiting on the hospital porch for his discharge, he was approached by a person described by him as a nurse who was wearing a 1 ‘ light blue kind of a striped uniform ”, black shoes and black stockings — not the white uniform worn by other nurses who had previously treated him. She directed him to return to his bed, where she gave him an injection in the lower part of the buttock. Hospital records indicate that such injection was given for the purpose of introducing penicillin, but the nurse’s notes failed to show any such injection on that day.
There was also evidence that this defendant permitted student nurses to give injections to patients. Competent medical testimony was produced to show that the injection in question was negligently performed, in that the needle was inserted into an improper part of plaintiff’s anatomy, causing damage to the sciatic nerve. A notation upon the continuation sheet at defendant ’s clinic indicates a conclusion by three examining physicians that plaintiff was suffering from “ underlying thromboangiitis obliterans of both legs ” and that “ the injection he received at Presbyterian may have done something to accelerate or precipitate the process in the right leg ”. Plaintiff’s left leg was subsequently amputated at another hospital in August of the following year.
From the foregoing evidence, the jury could have found that the injection was not administered by a regularly registered or trained nurse, but by a student in defendant’s nursing school. It is now the holding of the majority of this court that such a finding is insufficient in law to establish a prima facie cause of action as against defendant hospital. With this holding I am constrained to disagree.
The traditional immunity of the hospital from liability for the acts of physicians and nurses, in their capacity as such, is based upon the view that the hospital’s duty to the patient is limited to the furnishing of competent personnel to perform medical duties. It is only for negligence in the selection of such personnel that the hospital may be held liable (Bakal v. University Heights Sanitarium, 277 App. Div. 572, affd. 302 N. Y. 870; Hamburger v. Cornell Univ., 240 N. Y. 328; Schloendorff v. Society of New York Hosp., 211 N. Y. 125).
*544Trained nurses, like licensed physicians, “ are regarded as especially equipped to render professional services to patients when called on to do so ” (Matter of Renouf v. New York Central R. R. Co., 254 N. Y. 349, 351). If, then, the injection had been administered by a regularly qualified nurse it would have been incumbent upon plaintiff to show that there was reason to doubt her competency when she was employed. To apply that same principle to one concededly not yet qualified by experience or training for the nurse’s cap, and may never be, however, seems to me to be an unwarranted extension of the immunity rule, which has not escaped criticism in recent years.
When a hospital chooses to furnish other than duly qualified nurses for the performance of strictly medical duties, it should, in fairness, be required at least to accept the burden of justifying such selection when harm results. It may be that here defendant could show that the student who actually administered the injection (a note of which was made in its hospital records but not in its nurse’s notes, as above noted), had been properly instructed in anatomy and related subjects in defendant’s nursing school, and that she had demonstrated adequate knowledge and sufficient ability as a nurse to be entrusted with such tasks. In the absence of at least such a showing by defendant the complaint should not have been dismissed, for the mere fact that she was an undergraduate is insufficient to presume her competence (see Howe v. Medical Arts Center Hosp., 261 App. Div. 1088, affd. 287 N. Y. 698). In that case a student nurse negligently burned a patient with hot water bags; although she was an undergraduate, she was actually graduated from a nonaccredited nursing school and had also had several years’ experience at recognized hospitals. “ From the fact that the nurse was an undergraduate,” among other things, the Appellate Division pointed out, “ the jury was entitled to conclude that the defendant had failed in its duty ” to provide competent nurses.
The conclusion here reached is not repugnant to our holding in Phillips v. Buffalo Gen. Hosp. (239 N. Y. 188), where it was said that it is the character of the act (i.e., application of hot water bottles), rather than the title of the actor, that determines the extent of the hospital’s duty. Insofar as that case retains its authority (cf. Howe v. Medical Arts Center Hosp., supra), it is distinguishable from the case at bar in that we *545were there concerned with a type of ministration which might reasonably be performed either by a nurse or by an orderly. As to such functions, we explicitly noted that “ The line of demarcation is not clearly drawn ” (p. 190). It takes no extensive professional training to equip one properly to apply a hot water bottle. But, where the act is strictly medical, as the giving of medication by the insertion of a needle into the human body, no casual, perfunctory or limited training can be considered adequate. Prima facie, only the regularly qualified nurse possesses the professional capacity, judgment and experience to perform such duties, and the mere authorization by defendant to its student nurses, however brief their training, to do so does not constitute proof that such authorization was proper.
For the foregoing reasons, the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.
Loughran, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur with Lewis, J.; Froessel, J., dissents in opinion.
Judgment affirmed.