Kupferman, J., dissents in a memorandum as follows: I would grant summary judgment dismissing the complaint against the defendants, St. Vincent’s Hospital and Medical Center of New York and Dr. Dorothy Gutwein.
The motion for summary judgment in this appeal does not involve the plaintiff’s private attending physician. It concerns only the resident physician and vicariously through her the hospital.
*433It has been held that a hospital is not responsible for the acts of the private attending physician (Fiorentino v Wenger, 19 NY2d 407). Inasmuch as the hospital acts through its residents, neither the hospital nor the resident is liable for carrying out the orders of the patient’s private attending physician (Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682).
It is not for the hospital to invade the area of the attending physician’s competence and authority or overrule his orders of a direct and explicit nature (Toth v Community Hosp., 22 NY2d 255).
It is the private physician who makes the decisions. This is clearly outlined in the Official Position Statements and Principles of Professional Conduct of the Medical Society of the State of New York (1992), under Guidelines for Attending Physicians and Residents (at 19C): "it is imperative to specifically indicate the authority and responsibility for decisions about treatment and management. Ethically and legally, the patient’s freely selected attending physician possesses this authority and responsibility. Such action will strengthen the patient-physician relationship essential to the continuity of a patient’s care.”
As is also stated in the Current Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association: "9.12 Physician-Patient Relationship: Respect for Law and Human Rights. The creation of the physician-patient relationship is contractual in nature. Generally, both the physician and the patient are free to enter into or decline the relationship.”
The majority quotes from the case of Toth v Community Hosp. (supra, at 265, n 3) in describing a situation where the private doctor’s orders may clearly be "contraindicated”. Discovery has been completed in this matter and there is no such indication which would lead the resident physician to overrule the private physician or interfere with the contractual relationship. The resident physician is not a roving angel of mercy, but rather a professional who does not substitute her judgment for that of a private attending physician unless the situation clearly mandates it.