Out of scope – the inquiry tightensJuly 23, 2020

Roizman v Stromer, 2020 NY Slip Op 04196 (2d Dept. 2020)

” 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 DiLorenzo v Zaso, 148 AD3d 1111, 1113). “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion (DiLorenzo v Zaso, 148 AD3d at 1115, quoting Feuer v Ng, 136 AD3d 704, 707).

The hospital defendants’ expert, Vincent M. D’Amico, asserted that he had “overseen the labor and delivery of thousands of newborns,” and that “[b]y virtue of [his] experience and training, [he was] familiar with the accepted standards of practice in the fields of obstetrics and gynecology that were in effect at the time of the events at issue herein, including the management of labor and delivery and postpartum and neonatal care.” We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s pubic bone diastasis; (2) whether Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries (see Shectman v Wilson, 68 AD3d 848). Because D’Amico did not establish his qualifications to opine on these issues, his affirmation was insufficient to carry the hospital defendants’ burden to establish a prima facie case for summary judgment in their favor (see Feuer v Ng, 136 AD3d at 707; Lavi v NYU Hospitals Center, 133 AD3d 830, 831; Behar v Coren, 21 AD3d at 1046-1047).”

My friend who runs the largest Plaintiff no-fault firm will remind me that the Courts held Country-Wide’s nurse reviewers could render an opinion upon an appropriate foundation. But as I have observed over the last five years, is Gary T’s case from 15 years out of the First Department (563 Grand v. C-Wide) good law anymore? Or, is it good law in the Second Department? Of relevance, how can the recently deceased Tamboro or Dr. Drora Hirsch, both pediatricians, opine about anything in NY PIP? These are really good questions.

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