Competent opinion of a specialist

Bartolacci-Meir v Sassoon, 2017 NY Slip Op 03040 (1st Dept. 2017)

“The nonconclusory opinion of a qualified expert based on competnt evidence that a defendant departed from accepted medical practice and that that departure was a proximate cause of plaintiff’s injury precludes a grant of summary judgment in favor of the defendants (see Diaz v New York Downtown Hosp., 99 NY2d 542 ; Cregan v Sachs, 65 AD3d 101, 108 ). However, the affidavit must be by a qualified expert who “profess personal knowledge of the standard of care in the field of [] medicine , whether acquired through his practice or studies or in some other way” (Nguyen v Dorce, 125 AD3d 571, 572 ; see also Atkins v Beth Abraham Health Servs., 133 AD3d 491 ; Udoye v Westchester-Bronx OB/GYN, P.C., 126 AD3d 653 ; Mustello v Berg, 44 AD3d 1018 , lv denied 10 NY3d 711 ).

Here, there is no indication that Dr. Befeler possessed the requisite background and knowledge to furnish a reliable opinion concerning the practice of gastroenterology (see Browder v New York City Health & Hosps. Corp., 37 AD3d 375 ). While a gastroenterologist may well be qualified to render an opinion on a surgical procedure involving the gastrointestinal system, it cannot be said that a general surgeon is qualified to opine on any [*4]specialty simply because the specialist may eventually refer the patient for surgery. Indeed, Dr. Befeler averred only that his conclusion that both doctors “were negligent in failing to follow standard and accepted medical procedures” was based upon his “review of the above records, education, years of training, and forty year experience in the field of General Surgery.” Nowhere did the doctor set forth any experience in gastroenterology or detail the standard of care for that specialty. Moreover, the expert did not provide any detail as to what Dr. Scherl should have done other than refer plaintiff to a surgeon, which she did. While he referred to “further diagnostic testing,” he did not say what those tests would be.

Although plaintiffs correctly argue that a doctor may have the requisite knowledge to opine on a specialty outside his particular field (Joswick v Lenox Hill Hosp., 161 AD2d 352, 355 ), here, their expert failed to say that he possessed such knowledge and to explain how he came to it. Further, he failed to set forth the standard of care allegedly violated. Thus, plaintiffs did not adduce the opinion of a qualified expert so as to rebut Dr. Scherl’s showing of her entitlement to summary judgment.”

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