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Datiz v. Shoob

71 N.Y.2d 867 Court N.Y. Decision date 1988-03-29 English

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p. 867
Marisol Datiz, an Infant, by Her Father and Natural Guardian, Luiz Datiz, Respondent, v M. Philip Shoob, Appellant, et al., Defendants.
Argued February 10, 1988;
decided March 29, 1988
p. 868
APPEARANCES OF COUNSEL
Kenneth Mauro for appellant.
Guy L. Heinemann for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

It is generally true that the mere referral of a patient by one physician to another, without more, does not render the referring doctor vicariously liable for the negligence of the treating physician (see, Kavanaugh v Nussbaum, 71 NY2d 535 ; Hill v St. Clare’s Hosp., 67 NY2d 72 , 79; Graddy v New York Med. Coll., 19 AD2d 426 , 429, mot to dismiss appeal denied 13 NY2d 1175 ; Nisenholtz v Mount Sinai Hosp., 126 Misc 2d 658 , 663). Here, however, there is evidence in the record from which the jury could have concluded that defendant — the referring pediatrician — had been independently negligent in diagnosing the infant plaintiff’s condition, and that this misdiagnosis constituted a proximate cause of plaintiffs injuries.

p. 869
This being so, defendant, as the initial wrongdoer, cannot escape liability merely by showing that the subsequent treating physician to whom plaintiff was referred was also negligent (see, Ravo v Rogatnick, 70 NY2d 305 , 310; Suria v Shiftman, 67 NY2d 87 , 98). We have examined defendant’s remaining contention and find it to be without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., Bellacosa and Dillon[1] concur.

Order affirmed, with costs, in a memorandum.

* Designated pursuant to NY Constitution, article VI, § 2.

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