It is routine in the practice of medicine for physicians to make referrals to doctors of different specialties or with different skill sets. As a general rule, such a referring physician is not liable for injuries caused by malpractice of the doctor to whom the referral was made. That is to say, the referral itself does not give rise to vicarious liability on the part of the referrer for the negligence of the referred physician. However, a referral to another doctor does not automatically absolve a referring doctor of liability. This is because physicians remain liable for their own negligence in the course of diagnosing and treating their patients. The circumstances under which referring physicians may be held liable is the focus of this month’s column.
The applicable principles were set forth in Datiz v. Shoob, 71 N.Y.2d 867 (1988), aff’g, 125 A.D.2d 628 (2nd Dept. 1986). The infant plaintiff in that case was born with a hip dislocation. The treating pediatrician during the baby’s first four days of life diagnosed abnormalities of the knee and ankle, and referred her to an orthopedist. The pediatrician never saw the child again, and the orthopedist failed to diagnose the hip condition. By the time the diagnosis was made, the child had suffered permanent injury. A jury found both doctors liable for failing to make a proper diagnosis. The pediatrician appealed. In affirming that doctor’s liability, the court of appeals stated:
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