Datiz v. Shoob

Lawrence, J.,

concurs in part and dissents in part and votes to reverse the judgment and to dismiss the complaint as against the appellant, and to dismiss the appeal from the order denying the appellant’s motion to set aside the verdict as against the weight of the evidence, with the following memorandum:

The infant plaintiff was born on July 29, 1974, at about 5:45 p.m. at Terrace Heights Hospital. The attending obstetrician referred her to the appellant, Dr. M. Philip Shoob, a board certified pediatrician, for the pediatric newborn examination, which the appellant conducted that same evening. The infant’s general condition appeared satisfactory, but the examination disclosed a problem with the knee joint, foot and ankle on the baby’s right side, contributed to by a laxity of the ligaments and muscles. The appellant’s impression was "congenital anomaly of the right knee and ankle”. He immediately ordered X rays and sought an orthopedic consultation. The codefendant, Dr. Maccab Boorstein, a board certified orthopedist, examined the infant plaintiff at about 1:30 p.m. on July 30, 1974, approximately 20 hours after her birth, and read the X rays. He found the hyperextendability of the knees to be bilateral, although affecting the right knee more than the left. He confirmed the finding of loose joints, but noted that the "hips fe[lt] normal”. He diagnosed the infant plaintiff as having " 'Floppy’ child syndrome”. There was no dispute that the finding of loose joints and ligaments in the lower extremities was a "red flag” indicating the possibility that the hips might have a tendency to dislocate.

The same day, July 30, 1974, Dr. Boorstein spoke to the infant’s mother and made arrangements with the mother to treat the infant’s condition upon her discharge from the hospital. Thus, while the appellant was the infant’s "primary treating” physician during her 4-day stay in the hospital, it is clear that within 24 hours of her birth, arrangements had been made for Dr. Boorstein to treat the problems which were perceived with her lower extremities.¹

The appellant never saw the infant after her discharge from the hospital on August 2, 1974. Dr. Boorstein was the infant’s treating orthopedist for five months following her discharge from the hospital, until January 6, 1975. The infant’s parents intended to seek pediatric cafe for the infant from a pediatrician in their neighborhood, and in December 1974 the infant came under the care of the late Dr. Charles Chi Chang, a board certified pediatrician, who continued to care for the infant for 15 months until March 1976. The infant’s mother could not remember whether the infant had been treated by any other pediatrician following her discharge from the hospital prior to seeing Dr. Chang.

On January 17, 1978, approximately 3 Vi years after her birth, the infant plaintiff was diagnosed for the first time as suffering from bilateral congenital dislocation of the hips.

This lawsuit ensued against the appellant and others. The jury found the appellant, Dr. Boorstein and the late Dr. Chang at fault in failing to timely diagnose and treat the infant’s condition and apportioned responsibility as follows: the appellant 10%; Dr. Boorstein 60%; and the late Dr. Chang 30%.²

In my view, the trial evidence simply did not establish that any alleged departure from good and accepted medical practice on the part of the appellant was a proximate cause of the injuries ultimately sustained by the infant plaintiff.

The testimony, which must be considered in a light most favorable to the infant plaintiff (see, Mertsaris v 73rd Corp., 105 AD2d 67, 75), at most established that the appellant failed to specifically diagnose the infant’s orthopedic problem as "congenital dislocation of the hip”. In this regard, I note that it was undisputed that the infant’s hips were not dislocated at birth; at best what was allegedly medically discernable was a "tendency to dislocate” or "dislocatability”.

However, despite the appellant’s alleged failure to properly diagnose the infant’s specific condition, all the experts who testified on the subject agreed that the appellant followed good and accepted medical practice by referring the infant to an orthopedist. Indeed, Dr. Leon Charash, one of the plaintiff’s experts, indicated that a pediatrician would not treat this "dislocatability” condition, if properly diagnosed. Instead, the pediatrician would refer the patient to an orthopedic specialist, which, in fact, the appellant did within the first 20 hours of the infant’s life. Although the appellant indicated that he was the infant’s "primary treating” physician during her brief hospital stay, it is clear that he had no intention of treating the infant’s orthopedic problem. While the jury found that Dr. Boorstein was negligent in his diagnosis and treatment, there was no testimony that would support a finding that the appellant was negligent in referring the infant to this orthopedist. "The general rule, synthesized from the authorities in many States on this subject, is that '[a] physician who is unable or unwilling to assume or continue the treatment of a case, and recommends or sends [the patient to] another physician who is not his employee, agent, or partner, is not liable for injuries resulting from the latter’s want of skill or care unless he did not exercise due care in making the recommendation or substitution.’ (70 C.J.S., Physicians and Surgeons, § 54, subd d, p 978)” (Graddy v New York Med. Coll., 19 AD2d 426, 429-430 [emphasis supplied]). The case of Tiernan v Heinzen (104 AD2d 645, appeal withdrawn 64 NY2d 1130) is not to the contrary. In that case, the referring defendant obstetricians were not held liable for their original referral of the plaintiff patient to a surgeon to examine a mass in the patient’s breast or for the acts of the surgeon. The obstetricians were held responsible because when the patient was referred back to the obstetricians, with instructions to check for any change in the mass, they failed to follow proper medical practice, by not (1) accurately and carefully delineating the mass, (2) performing other diagnostic tests, and (3) examining the breast at more frequent intervals (see, Tiernan v Heinzen, supra, pp 646-647).

Finally, I note that the codefendant Dr. Boorstein, the orthopedist, did not limit his evaluation of the infant to only those problems the appellant had discovered upon his examination, but performed his own independent examination, made his own diagnosis and proceeded to treat the infant for five months. Notably, all the experts who testified on the subject agreed that while early diagnosis of the infant’s condition was important, the condition could have been treated up until the weight bearing age of the child without adverse effects. Thus, I conclude that Dr. Boorstein’s acts constituted a sufficient break in the chain of causation, thereby relieving the appellant of liability. As it was noted in an analogous situation, "Where * * * the departure of one defendant consisted of failing to communicate information to another defendant, who by his own testimony, had actual knowledge of. those facts, the latter’s failure to act on that information constitutes an efficient superseding cause of the ultimate injury, breaks the chain of causation and insulates the former from liability (see, McLaughlin v Mine Safety Appliances, 11 NY2d 62)” (Street v Southside Hosp., NYLJ, Jan. 22, 1981, p 15, cols 4, 6).

Accordingly, I find that the judgment should be reversed and the complaint dismissed as against the appellant since the infant plaintiff failed, as a matter of law, to establish that any omissions of the appellant resulted in the injuries sustained by the infant plaintiff.

The appeal from the order denying the appellant’s motion to set aside the verdict as against the weight of the evidence should be dismissed as moot.

1 . At the trial in May 1984, the infant’s mother did not recall ever seeing the appellant during her hospital stay. She recalled that the obstetrician had told her that the infant had a problem with her legs, and the person who came to discuss the matter with her in detail and arranged to care for the infant upon her discharge was Dr. Boorstein.

2 . The estate of the late Dr. Chang settled the action against him before trial; and Dr. Boorstein settled the matter against him after the verdict was entered. Hence, the judgment was entered only against the appellant for 10% of the amount awarded the infant plaintiff.