Tuesday, November 24, 2015

Expert witness testimony in a medical malpractice action.

Practice point:  The Appellate Division rejected as without merit defendant's contention that plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon and an anesthesiologist merely because the expert was a cardiologist. An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable.  Once a medical expert establishes knowledge of the relevant standards of care, the witness need not be a specialist in the particular area at issue to offer an opinion. Any lack of skill or expertise goes to the weight of the opinion as evidence, not its admissibility.

Student note:  In order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries.  On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact.

Case:  Leavy v. Merriam, NY Slip Op 08148 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Summary judgment in a slip-and-fall action.