Reconcile This: Hearsay

LaVecchia v Bilello, 2010 NY Slip Op 06363 (App. Div., 2nd, 2010)

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury (see Koi Hou Chan v Yeung, 66 AD3d 642; Terranova v Finklea, 45 AD3d 572; Clarke v Limone, 40 AD3d 571). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642; Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791; Johnson v Ladin, 18 AD3d 439).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650). Moreover, the affidavit of RDA's dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff's verified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward v Engel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita Marie Bilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v Yeung, 66 AD3d at 644).

Compare this with Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Can these two decisions be reconciled? For those of you that don't practice in the Civil Court, this might not mean anything to you. But you never know if and when this issue will creep into Supreme Court. For more background on the issue, read THIS, THIS, and THIS.1

Also of interest is the fact that the Urban decision is an unreported decision, which could be the Appellate Term's way of saying, "hey, this is only for no fault."

Finally, I'm by the time you all got to this point in the post you were wondering whether you have been using "i.e." or "e.g." appropriately. Here you go:

When to use i.e. in a sentence - The Oatmeal


1. The last one is a NYLJ article and you need to pay to play, however, if the authors woudl post the article on their website, I could put a link to it and make everyone look smart.

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