Kavanaugh by Gonzales v. Nussbaum

• Decision Date: 29 March 1988
• Citation: 528 N.Y.S.2d 8,71 N.Y.2d 535,523 N.E.2d 284
• Parties: , 523 N.E.2d 284 Justin KAVANAUGH, Also Known as Justin Gonzales, an Infant, by Irene GONZALES, His Mother and Natural Guardian, et al., Respondents, v. William NUSSBAUM, Defendant, and Erol Y. Caypinar et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 8

528 N.Y.S.2d 8

71 N.Y.2d 535, 523 N.E.2d 284

Justin KAVANAUGH, Also Known as Justin Gonzales, an Infant, by Irene GONZALES, His Mother and Natural Guardian, et al., Respondents, v. William NUSSBAUM, Defendant, and Erol Y. Caypinar et al., Appellants.

Court of Appeals of New York.

March 29, 1988.

Ignatius John Melito, New York City, for Erol Y. Caypinar, appellant.

Patricia D'Alvia and Andrea M. Alonso, New York City, for Brookhaven Memorial Hosp., appellant.

Norman Bard, Garden City, and Beth J. Goldmacher, Westbury, for Nareys Suteethorn, appellant.

Norman E. Frowley, New York City, for respondents.

OPINION OF THE COURT

KAYE, Judge.

A physician who designates another doctor to "cover" for him, in the circumstances presented, is not liable for the covering doctor's own negligence in treating the regular physician's patient.

Plaintiff Justin Kavanaugh was born, in obvious distress, at 4:46 A.M., December 16, 1974, after only 31 weeks' gestation, weighing about three pounds. His mother, plaintiff Irene Gonzales, had engaged defendant Erol Caypinar, an obstetrician, on December 3, 1974, after Dr. William Nussbaum had for several months failed to diagnose that she was pregnant. ¹ Mrs. Gonzales was then 44 years old; the youngest of her three children was more than 20 years old. On her two visits to Dr. Caypinar's office--December 3 and December 10, 1974--Mrs. Gonzales complained of staining, and had elevated blood pressure.

At about 9:30 P.M., December 15, Mrs. Gonzales began bleeding to such an extent that her husband took her to the emergency room of defendant Brookhaven Hospital. There she was treated by the emergency room physician, defendant Nareys Suteethorn, a hospital employee. Dr. Suteethorn examined Mrs. Gonzales, but testified that he saw no active bleeding. Whether Dr. Suteethorn inserted his finger into Mrs. Gonzales' cervix, and whether such an examination precipitated hemorrhaging because of an abnormally low placenta (placenta previa), were sharply disputed issues. Dr. Caypinar was at the time attending a meeting at another hospital, and had arranged for Dr. Albin W. Swenson, Jr. (not a defendant) to cover for him. Dr. Suteethorn reported his findings by telephone to Dr. Swenson who told him to send Mrs. Gonzales home and have her contact Dr. Caypinar in the morning.

After returning home, Mrs. Gonzales' bleeding increased, and at about 2:00 A.M., December 16, she was returned by ambulance to the Brookhaven emergency room, where she was again seen by Dr. Suteethorn, and this time admitted to the hospital. Dr. Caypinar, who was in the delivery room assisting another doctor, ordered a "double set up" to permit either an internal examination of Mrs. Gonzales or a Caesarian section, because he anticipated a potential emergency (possible placenta previa or placenta separation). For an hour or more Dr. Caypinar received reports from the labor room nurses who were monitoring Mrs. Gonzales, and thereafter himself attended her. A loss of the fetal heartbeat was reported beginning about 4:15 A.M., some 31 minutes before Justin's delivery by Caesarian section. In the delivery room, the infant required resuscitation; his APGAR (a score of zero to 10 assigned to newborns, based on observation) was one at one minute after birth, five at five minutes, and four at 10 minutes. He was transferred to North Shore Hospital, where a tracheotomy was performed to help him breathe. He was tube-fed for about six months, after which he spent some 14 months at Downstate Medical Center. The evidence indicated that Justin suffered permanent debilitating injury, including a reduced ability to become educated, or to care for himself, or to sustain himself economically; he is retarded, has epilepsy (experiencing periodic grand mal seizures) and requires special education and therapy.

A special verdict form, consisting of several questions, was submitted to the jury. The jury found that Dr. Caypinar was culpably negligent in four respects: he failed to ascertain the nature and position of placenta implantation; he failed to use the available diagnostic procedure of sonography; he failed to advise the covering physician as to potential risks; and he failed to render proper care and treatment on December 16, 1974. A single question was submitted embodying three possible theories of liability of Dr. Suteethorn: that he negligently performed a prenatal internal examination of Mrs. Gonzales; that he failed to describe all pertinent findings of that examination, including a finding of vaginal bleeding, to Dr. Swenson; and that he failed to admit Mrs. Gonzales to the hospital on her first visit. The jury answered that question affirmatively.

The jury was further asked whether Dr. Swenson--the covering doctor--himself had failed to care for and treat Mrs. Gonzales in accordance with accepted standards and whether such departure was a proximate cause of Justin's injuries. It answered yes to both that question and the next: "Under the facts and circumstances of this case, and in accordance with the rules of law as I have charged,[ ²] do you find that the arrangement between Dr. Caypinar and Dr. Swenson was such as to impute to Dr. Caypinar any casually related acts of negligence on the part of Dr. Swenson?" Having answered both questions affirmatively, the jury was then asked whether any part of the finding of Dr. Caypinar's liability was a result of the imputation of negligence on the part of Dr. Swenson and, if so, how much. The jury answered, "Yes. 25%."

Total damages were fixed at $4,340,000: $2,500,000 for Justin's pain and suffering; $600,000 as the present value of future expenses for institutional custodial care; $740,000 as the present value of his diminished earning capacity, and $500,000 for Mrs. Gonzales' lost services. The jury apportioned fault 70% to Dr. Caypinar, 30% to Brookhaven (as Suteethorn's employer). The court denied defendants' motions challenging the jury's findings as to negligence and apportionment, but it reduced the award for pain and suffering to $1,500,000 and it set aside the awards for custodial care, diminished earning capacity and lost services, concluding that there was inadequate evidentiary support for these items of damage. On cross appeals, the Appellate Division (129 A.D.2d 559, 514 N.Y.S.2d 55), sustained the judgment as to liability and the award for pain and suffering, but it restored both the $740,000 award for lost earning capacity and $35,000 of the award for lost services (129 A.D.2d 559, 514 N.Y.S.2d 55). This court granted defendants' motions for leave to appeal.

Except as to the imputation to Dr. Caypinar of liability for the negligence of Dr. Swenson, we affirm the Appell Division order in every respect. In that the parties have devoted a major portion of their argument to the question whether the liability of Drs. Caypinar and Suteethorn was established, we state at the outset that, as to both doctors, the affirmed findings of their own negligence and causation had support in the record, which is the limit of the scope of our review ( Humphrey v. State of New York, 60 N.Y.2d 742, 469 N.Y.S.2d 661, 457 N.E.2d 767).

Vicarious Liability ³

Dr. Caypinar, a sole practitioner, and Dr. Swenson both specialized in obstetrics and gynecology on Long Island, but were not partners in the practice of medicine, and did not share office space. Both participated with two colleagues who similarly enjoyed privileges at Brookhaven Hospital in an arrangement whereby each doctor took a turn covering for the other three, so there would be 24-hour-a-day, seven-day-a-week coverage of their patients. Each of the four retained the entire fee from his own patient, whatever service the others might have rendered that patient. The undisputed testimony was that it was common practice in the community for sole practitioners to cover for each other, and that such arrangements were standard practice at the hospital, which required doctors with privileges to be continuously available for emergencies. Pursuant to the covering arrangement, when Mrs. Gonzales arrived at Brookhaven Hospital the night of December 15 and said she was Dr. Caypinar's patient, the emergency room physician consulted the roster and called Dr. Swenson, who was covering for him.

Both in sending the issue to the jury and in later refusing to set aside the verdict, the trial court concluded--essentially for three reasons--that the relationship or association between Drs. Caypinar and Swenson supported the imposition of vicarious liability. First, even if Drs. Caypinar and Swenson were not partners, employees or employers of each other and shared no fees, the covering arrangement was for their mutual benefit; their arrangement afforded continuous treatment for their patients and enabled them to satisfy what appeared to be the hospital's requirement for privileges. Second, Mrs. Gonzales had an ongoing relationship with Dr. Caypinar, and had the right to expect satisfactory treatment from him, which included persons to whom he directed her. Third, Mrs. Gonzales had no knowledge of the arrangement and no opportunity to participate in the selection of the covering doctor in any given instance, from which the court concluded that "it would not seem reasonable that she should bear the total responsibility for the no option situation presented to her."

Liability in negligence generally rests on a defendant's own fault. Underlying the doctrine of vicarious liability--the imputation of liability to defendant for another person's fault, based on defendant's relationship with the wrongdoer--is the notion of control. The person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences (Prosser and Keeton, Torts § 69, at 500 [5th ed. 1984] ). A classic example is liability of an employer for the acts of its employees within the course of employment, evidencing the public policy...