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This article is part of our ongoing experts coverage, with 235 published articles analyzing experts issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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)
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“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 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.
Related Articles
- Understanding foundation requirements in medical malpractice expert testimony
- How an expert becomes competent to testify about the standard of care in a specific area of practice
- Expert qualification standards in New York no-fault cases and professional sufficiency requirements
- Proof that physician was internist sufficient for expert medical testimony in NY personal injury cases
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Expert Testimony in New York Litigation
Expert testimony is essential in most personal injury and no-fault cases — from medical experts establishing causation and damages to accident reconstructionists and economic experts calculating lost earnings. New York courts apply specific rules governing expert qualifications, the foundation for expert opinions, the use of medical journals and treatises, and the sufficiency of expert evidence on summary judgment. These articles analyze the legal standards for expert testimony and practical strategies for presenting and challenging expert evidence.
235 published articles in Experts
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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