One of the issues that regular readers of the blog know that I discuss is whether an affirmation or affidavit of a physician is sufficient to support or defeat a summary judgment motion. The general rule is that an expert must be of the same specialty as the physician who performed the treatment being commented upon, or have a sufficient background or knowledge that would allow a court to infer that the affiant’s affirmation or affidavit should be accepted.
This appears to be the case in Ocasio-Gary v Lawrence Hosp., 2010 NY Slip Op 00003 (1st Dept. 2010), where the court observed the following:
“The trial court should not have rejected the expert’s opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert’s affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert’s specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion.”
Dave Gottlieb over at the CPLR blog also discusses this issue.
