McKenzie v Abrahams, 2010 NY Slip Op 03081 (2d Dept. 2010)
“To establish liability in a medical malpractice action, a plaintiff must prove a departure from the accepted standard of medical care and that such departure was a proximate cause of the plaintiff’s injuries (see Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563). The plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability on so much of the complaint as alleged that the defendant surgeon’s error caused her to undergo an otherwise unnecessary second surgery and, in opposition, the defendants failed to raise a triable issue of fact. However, because the plaintiff failed to include in her initial moving papers expert medical opinion evidence demonstrating that the defendant’s error also caused her need for a third surgery and her ongoing injuries, she failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability on that portion of the complaint (see [*2]Fischer v Edward M. Weiland, M.D., P.C., 241 AD2d 439; Ritt v Lenox Hill Hosp., 182 AD2d 560). Contrary to the plaintiff’s assertions, such evidence was required, as the question of whether her third surgery and other ongoing back problems resulted from the defendant surgeon’s admitted error is not “one which is within the experience and observation of the ordinary [factfinder] ”
Once again, issues of medical usefulness, utility of the service, departures from proper standards of care and other medical are beyond the province of a lay person. This rationale, although obvious, is quite applicable in PIP litigation.
Also, as you can tell from the non-bolded portion of this opinion, Plaintiff successfully moved for summary judgment on the issue of departure from the standard of care. This is about as rare as the instance in a 5102(d) case where a plaintiff successfully moves to satisfy one of the myriad threshold categories.
