Experts

Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

In opposition, the affidavit of the plaintiff’s expert failed to raise a triable issue of fact as to the causation element. “ ’While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable’ ” (Behar v Coren, 21 AD3d 1045, 1046-1047 [2005], quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895 [2004]). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v Coren, 21 AD3d at 1047; see Galluccio v Grossman, 161 AD3d 1049, 1052 [2018]). Here, the plaintiff’s expert, who was board certified in ophthalmology, was qualified to, and did, raise a triable issue of fact as to whether Edghill deviated from the accepted standard of care in failing to refer the plaintiff to a neurologist to further evaluate his symptoms. However, the affidavit was insufficient to establish that the plaintiff’s meningioma could have been treated by radiation instead of surgery if it had been detected in November 2014. The plaintiff’s expert failed to articulate that he had any training in the treatment of meningiomas or what, if anything, he did to familiarize himself with the applicable standard of care. The affidavit, therefore, lacked probative value and failed to raise a triable issue of fact as to whether any departure from the accepted standard of care proximately caused the plaintiff’s injuries (see Feuer v Ng, 136 AD3d 704, 707 [2016]; Tsimbler v Fell, 123 AD3d 1009, 1010 [2014]).

Noble v Kingsbrook Jewish Med. Ctr., 168 AD3d 1077 [2d Dept. 2019] (same as Simpson v Edghill, 169 AD3d 737 [2d Dept. 2019]

Sanchez v L.R.S. Cab Corp., 169 AD3d 733 [2d Dept. 2019]

In opposition, the appellant failed to raise a triable issue of fact. The affirmed report of the appellant’s neurologist was insufficient to raise a triable issue of fact, as it failed to expressly compare the appellant’s range of motion to a normal range of motion, and it failed to provide any qualitative assessment of the appellant’s condition (see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Fiorillo v Arriaza, 52 AD3d 465, 466-467 [2008]; Kaminski v Kawamoto, 49 AD3d 501, 502 [2008]).

Cho v Demelo, 2019 NY Slip Op 06467 [2d Dept. 2019]

The Supreme Court should not have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury. The defendants failed to meet their prima facie burden on the motion (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955). The affirmed report of their orthopedic surgeon failed to identify the objective tests that were utilized to measure the plaintiff’s ranges of motion, and thus, did not support the conclusion that the plaintiff suffered no limitations as a result of the accident (see Zavala v Zizzo, 172 AD3d 793, 794; Bayk v Martini, 142 AD3d 484Durand v Urick, 131 AD3d 920Exilus v Nicholas, 26 AD3d 457). It is therefore unnecessary to determine whether the papers submitted by the plaintiff in opposition to the motion were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

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