Opinion
Argued February 10, 1988
Decided March 29, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Lester Sacks, J.
Kenneth Mauro for appellant.
Guy L. Heinemann for respondent.
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 N.Y.2d 535; Hill v St. Clare's Hosp., 67 N.Y.2d 72, 79; Graddy v New York Med. Coll., 19 A.D.2d 426, 429, mot to dismiss appeal denied 13 N.Y.2d 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 plaintiff's injuries. 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 N.Y.2d 305, 310; Suria v Shiffman, 67 N.Y.2d 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 concur.
Designated pursuant to N Y Constitution, article VI, § 2.
Order affirmed, with costs, in a memorandum.