Out of scope – need foundation

Medical malpractice cases in New York require expert testimony to establish both the standard of care and any departures from that standard. However, not every physician can testify about every medical issue. When a doctor seeks to offer opinions outside their specific area of expertise, New York courts require additional foundation to establish the reliability of their testimony.

This principle becomes particularly important in complex cases involving specialized treatments or procedures. Courts must carefully scrutinize whether an expert witness has sufficient knowledge and experience in the relevant medical field to provide reliable opinions. The failure to establish proper foundation can result in the exclusion of expert testimony and potentially case-ending consequences for the party relying on that expert.

The requirement for proper foundation also extends beyond traditional medical malpractice cases and can impact medical necessity reversals and other healthcare-related litigation where expert opinions are crucial.

Jason Tenenbaum’s Analysis:

Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 2018 NY Slip Op 00279 (2d Dept. 2018)

“Here, Shapiro established his prima facie entitlement to judgment as a matter of law by submitting an affirmation of his medical expert, who addressed the specific allegations of malpractice set forth in the plaintiffs’ bills of particulars. The expert concluded that Shapiro did not [*2]depart from the applicable standard of care and that, in any event, the alleged departures were not a proximate cause of any alleged injuries. In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. Where, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion” (DiLorenzo v Zaso, 148 AD3d 1111, 1113 ; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010; Feuer v Ng, 136 AD3d at 707). The plaintiffs’ expert failed to provide such foundation. ”

There is this doctor who is now signing affidavits of merit in Court actions. He is a pediatrician opining on the efficacy of pain creams. I will not say more.

Key Takeaway

The Gullo decision reinforces that expert witnesses must establish proper foundation when testifying outside their specialty. Simply being a licensed physician is insufficient—courts require evidence that the expert has relevant knowledge and experience in the specific medical area at issue. This standard helps ensure the reliability and relevance of expert testimony in medical malpractice cases.

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• New York No-Fault Insurance Law