Ravo by Ravo v. Rogatnick

• Decision Date: 13 October 1987
• Citation: 520 N.Y.S.2d 533,70 N.Y.2d 305,514 N.E.2d 1104
• Parties: , 514 N.E.2d 1104, 9 A.L.R.5th 1170 Josephine RAVO, an Infant, by Her Father and Natural Guardian, Antonio RAVO, Respondent, v. Sol ROGATNICK, Respondent, and Irwin L. Harris, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 533

520 N.Y.S.2d 533

70 N.Y.2d 305, 514 N.E.2d 1104, 9

A.L.R.5th 1170

Josephine RAVO, an Infant, by Her Father and Natural Guardian, Antonio RAVO, Respondent, v. Sol ROGATNICK, Respondent, and Irwin L. Harris, Appellant.

Court of Appeals of New York.

Oct. 13, 1987.

John L.A. Lyddane, New York City, for appellant.

Brian J. Shoot and Harvey Weitz, New York City, for Josephine Ravo, respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

In this medical malpractice action, defendant, Dr. Irwin L. Harris, appeals from an order of the Appellate Division, 121 A.D.2d 705, 503 N.Y.S.2d 890, unanimously affirming an amended judgment of Supreme Court, entered on a jury verdict, finding him jointly and severally liable with Dr. Sol Rogatnick for injuries negligently inflicted upon plaintiff, Josephine Ravo, and resulting in brain damage that has rendered her severely and permanently retarded. The issue presented is whether joint and several liability was properly imposed upon defendant under the circumstances of this case where, notwithstanding that the defendants neither acted in concert nor concurrently, a single indivisible injury--brain damage--was negligently inflicted. For the reasons that follow, we affirm.

I.

Uncontroverted expert medical evidence established that plaintiff, Josephine Ravo, who at the time of trial was 14 years of age, was severely and permanently retarded as a result of brain damage she suffered at birth. The evidence demonstrated that the child was born an unusually large baby whose mother suffered from gestational diabetes which contributed to difficulties during delivery. The evidence further established that Dr. Rogatnick, the obstetrician who had charge of the ante partum care of Josephine's mother and who delivered Josephine, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that Dr. Harris, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant's condition after birth. Based upon this evidence, the jury concluded that Dr. Rogatnick committed eight separate acts of medical malpractice, and Dr. Harris committed three separate acts of medical malpractice.

Although Dr. Rogatnick's negligence contributed to Josephine's brain damage, the medical testimony demonstrated that Dr. Harris' negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors. Indeed, plaintiff's expert, Dr. Charash, testified that while the hypoxia and trauma directly attributable to Dr. Rogatick's negligence were two major villains--being the most common causes of perinatal difficulty--the hyperbilirubinemia and excessively high hematocrit level inadequately addressed by Dr. Harris could not be excluded as having a contributing effect. The expert concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Similarly, Dr. Perrotta, testifying on behalf of plaintiff, opined that she could not tell whether the excessively high hematocrit level contributed "10 percent, 20 percent, or anything like that" to the injury. Nor, as the Appellate Division found, did Dr. Harris adduce any evidence that could support a jury finding that he caused an identifiable percentage of the infant plaintiff's brain damage. Indeed, Dr. Harris' entire defense appears to have been that he was not responsible for the plaintiff's injury to any degree.

The trial court instructed the jury that if they found that both defendants were negligent, and that their separate and independent acts of negligence were direct causes of a single injury to the plaintiff, but that it was not possible to determine what proportion each contributed to the injury, they could find each responsible for the entire injury even though the act of one may not have caused the entire injury, and even though the acts of negligence were not equal in degree. The court further instructed the jury that if they found that both defendants were negligent, they would have "to compare their negligence on the basis of 100 percent". The court also instructed the jury that if they found both defendants responsible for the plaintiff's injury "then you will evaluate their respective faults in contributing to the infant's condition".

These instructions were explanatory of an interrogatory, previously accepted without objection by Dr. Harris, and submitted to the jury, that requested the standard Dole v. Dow apportionment of fault (Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288). Notwithstanding his failure to object to this interrogatory, Dr. Harris raised for the first time, after the jury was charged, an objection to the instructions, contending that he was only "liable for what injury he puts [sic ] on top of the injury that exists", and therefore responsible only as a successive and independent tort-feasor. The trial court rejected defendant's contention, and the jury returned a verdict for plaintiff in the total amount of $2,750,000 attributing 80% of the "fault" to Dr. Rogatnick and 20% of the "fault" to Dr. Harris.

In a postverdict motion, Dr. Harris sought an order directing entry of judgment limiting the plaintiff's recovery against him to $450,000 (20% of the $2,250,000 base recovery--the court having setoff $500,000 received by plaintiff in settlement of claims against other defendants) based upon his contention that his liability was not joint and several, but rather was independent and successive. This motion was denied. The Appellate Division dismissed Harris' appeal from the order denying the postverdict motion and affirmed the amended judgment entered on the jury's verdict.

II.

When two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable (see, Suria v. Shiffman, 67 N.Y.2d 87, 499 N.Y.S.2d 913, 490 N.E.2d 832; Bichler v. Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556; Sweet v. Perkins, 196 N.Y. 482, 485, 90 N.E. 50). This is so because such concerted wrongdoers are considered "joint tort-feasors" and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each (Bichler v. Lilly & Co., 55 N.Y.2d 571, 580-581, 450 N.Y.S.2d 776, 436 N.E.2d 182, supra; see generally, Prosser and Keeton, Torts § 46 [5th ed.] ). On the other hand, where multiple tort-feasors "neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive" (Suria v. Shiffman, 67 N.Y.2d 87, 98, 499 N.Y.S.2d 913, 490 N.E.2d 832, supra; see, Melodee Lane Lingerie Co. v. American Dist. Tel. Co., 18 N.Y.2d 57, 66, 271 N.Y.S.2d 937, 218 N.E.2d 661; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra; Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 413, 196 N.E. 308). Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts (Milks v. McIver, 264 N.Y. 267, 270, 190 N.E. 487), includi aggravation of injuries by a successive tort-feasor (Milks v. McIver, 264 N.Y. 267, 270, 190 N.E. 487, supra; Matter of Parchefsky v. Kroll Bros., 267 N.Y. 410, 414, 190 N.E. 308, supra; Derby v. Prewitt, 12 N.Y.2d 100, 105, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra ). The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused (see, Suria v. Shiffman, 67 N.Y.2d 87, 98, 499 N.Y.S.2d 913, 490 N.E.2d 832, supra; Derby v. Prewitt, 12 N.Y.2d 100, 106, 236 N.Y.S.2d 953, 187 N.E.2d 556, supra; Dubicki v. Maresco, 64 A.D.2d 645, 646, 407 N.Y.S.2d 66; see also, Zillman v. Meadowbrook Hosp. Co., 45 A.D.2d 267, 358 N.Y.S.2d 466).

It is sometimes the case that tort-feasors who neither act in concert nor concurrently may nevertheless be considered jointly and severally liable. This may occur in the instance of certain injuries which, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tort-feasors (see, e.g., Hawkes v. Goll, 281 N.Y. 808, 24 N.E.2d 484, affg. 256 App.Div. 940, 9 N.Y.S.2d 924; Slater v. Mersereau, 64 N.Y. 138; Wiseman v. 374 Realty Corp., 54 A.D.2d 119, 387 N.Y.S.2d 612; see also, Prosser and Keeton, Torts § 52, at 347 [5th ed] ).

We had occasion to consider such a circumstance in Slater v. Mersereau, 64 N.Y. 138, supra, where premises belonging to the plaintiff were damaged by rainwater as a result of the negligent workmanship by a general contractor and a subcontractor. We held that where two parties by their separate and independent acts of negligence, cause a single, inseparable injury, each party is responsible for the entire injury: "Although they acted independently of each other, they did act at the same time in causing the damages * * * each contributing towards it, and although the act of each, alone and of...