## Facts

- Irene Gonzales, age 44, became pregnant; her physician failed for months to diagnose the pregnancy.
- Gonzales retained Dr. Erol Y. Caypinar (obstetrician) and, on two early visits, reported staining and had elevated blood pressure.
- On the evening of December 15, 1974, Gonzales experienced heavy bleeding and went to Brookhaven Memorial Hospital’s emergency room, where Dr. Nareys Suteethorn (a hospital employee) examined her; whether he performed a digital cervical exam that precipitated hemorrhaging was disputed.
- Dr. Caypinar was unavailable and had arranged for Dr. Albin W. Swenson, Jr. to cover; Suteethorn called Swenson, who directed that Gonzales be discharged and told to contact Caypinar in the morning.
- Gonzales’s bleeding worsened at home; she returned by ambulance around 2:00 a.m. and was admitted.
- Caypinar later ordered a “double set up” due to potential emergency (possible placenta previa or separation).
- Gonzales delivered Justin Kavanaugh by C-section at approximately 31 weeks’ gestation; he was in distress, extremely premature, and later suffered permanent severe mental disability and epilepsy.

## Issues

1. Whether an obstetrician who designates a covering physician is vicariously liable for the covering physician’s independent negligence in treating the obstetrician’s patient.
2. Whether awards for future custodial care and impairment of future earning capacity were supported by sufficient, non-speculative evidence.

## Decision

- The Court of Appeals of New York held that, on these facts, Caypinar was not vicariously liable for Swenson’s negligence merely because Swenson covered for him.
- The court reasoned there was no showing that Swenson was Caypinar’s employee, partner, or agent, nor that Caypinar had the right to control Swenson’s medical judgment; Swenson exercised independent medical judgment.
- The court rejected reinstatement of certain future-damages components, concluding the evidentiary foundation for future care and impaired earning capacity was inadequate and left the jury to conjecture.
- The court modified the order below by removing the imputation of Swenson’s negligence to Caypinar and reinstating the trial court’s set-asides/reductions of unsupported future-damages awards, while otherwise leaving intact findings of direct negligence against Caypinar and Suteethorn and the hospital’s vicarious liability for its employee.

## Legal Principles

- A physician’s mere designation of an on-call covering doctor does not, without more, create vicarious liability for the covering doctor’s malpractice.
- Vicarious liability in this setting requires proof of an agency-type relationship (e.g., employment, partnership, or control over medical judgment) or proof that the primary physician directed or participated in the negligent treatment, or held out the covering physician as an agent.
- Future damages (including future medical/custodial care and impairment of earning capacity) must rest on competent evidence supplying a rational basis for the calculation; awards based on speculation may be set aside or reduced.

## Conclusion

The court limited an attending physician’s exposure for coverage arrangements by requiring proof of agency or control before imputing a covering doctor’s negligence, and it enforced strict evidentiary requirements for future-damages awards by disallowing amounts not supported by a concrete, non-speculative record.


Kavanaugh v. Nussbaum, 523 N.E.2d 284 (N.Y. 1988)