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This is a case where the Court reiterated the principle


This is a case where the Manhattan Court reiterated the principle that when a single indivisible injury, such as brain damage, was negligently inflicted upon the plaintiff, defendants can be held jointly and severally liable notwithstanding that the latter neither acted in concert nor concurrently with each other.

A mother, who suffered gestational diabetes during her pregnancy, gave birth to an unusually large baby who is the plaintiff in this case. At the time of the trial, plaintiff was severely and permanently retarded as a result of the brain damage she suffered at birth. The evidence established that the obstetrician who had charge of the ante partum care of plaintiff’s mother and who delivered the plaintiff, 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 the defendant, 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 the obstetrician committed eight separate acts of medical malpractice, and the defendant pediatrician committed three separate acts of medical malpractice.

During the trial, the plaintiff’s witness concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Although the obstetrician’s negligence contributed to the plaintiff’s brain damage, the medical testimony demonstrated that the defendant’s 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.

After the jury was charged, the Long Island defendant contended that he was only “liable for what injury he puts on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. He claimed that his liability was not joint and several but rather was independent and successive.

The Court did not agree.

The Court held that when two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable. 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. 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. 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, including aggravation of injuries by a successive tort-feasor. The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.

The Court stated that While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

According to the court, he jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by the plaintiff at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others Here, however, the evidence established that plaintiff’s brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.

Stephen Bilkis & Associates with its New York Birth Injury Lawyers has its offices strategically located within New York Metropolitan area, including Corona, New York.

Please be advised that in addition, our New York Birth Injury Lawyers from Stephen Bilkis & Associates can recommend New York Brain Injury Lawyers to provide you assistance with any legal matter.

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