The expert affidavitAugust 21, 2019

M.C. v Huntington Hosp., 2019 NY Slip Op 06186 (2d Dept. 2019)

This must be my new favorite topic.

“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, quoting Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895). “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). The plaintiffs’ expert, who was board certified in pediatric emergency medicine, was qualified to opine as to whether the delays in diagnosing and treating the infant plaintiff’s testicular torsion, an emergent condition, deviated from the accepted standard of care and whether the deviations were a proximate cause of the loss of the infant plaintiff’s testicle (see Simpson v Edghill, 169 AD3d 737, 738-739).”

“The fact that the plaintiffs’ expert is not a urologist or surgeon is not material, as the plaintiffs are not alleging that DiBlasio improperly performed the surgery to treat the testicular torsion. Rather, they allege that the defendants improperly delayed the diagnosis and treatment of the infant plaintiff’s testicular torsion in the emergency room, causing a delay in the surgery and the eventual loss of the testicle. The plaintiffs’ expert laid the requisite foundation for his asserted familiarity with emergency medicine and the treatment of young adolescent males for various conditions, including testicular torsion. As a pediatric emergency physician, he is qualified to render an opinion in this case regarding the defendants’ actions in the emergency room.”

“While the plaintiff’s expert was licensed to practice in Connecticut, rather than in New York State, an expert need not be from the exact same locality as where the occurrence took place. It is sufficient if the expert attests to familiarity with either the standard of care in the locality or to a minimum standard applicable locally, statewide, or nationally (see McCollough v University of Rochester Strong Mem. Hosp., 17 AD3d 1063Hoagland v Kamp, 155 AD2d 148, 150; Payant v Imobersteg, 256 AD2d 702, 705). The affirmation of the plaintiff’s expert sufficiently identified, and assessed the defendants’ conduct against, a relevant standard of care.”

I have yet to see an out of scope provider establish the proper foundation except in my no-fault case where Dr. Tamburro’s (our favorite pediatrician) affidavit would obviously fail these tests. Smh.

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