Defendant-Doctor’s Failure to Mention He Was Under a Stayed License-Suspension In His Affidavit In Support of His Motion for Summary Judgment Was One Factor In Finding the Affidavit Insufficient to Meet Defendant’s Burden on the Motion

The Third Department determined defendant’s motion for summary judgment in a medical malpractice action was properly denied on several grounds.  The court noted that it was troubled that the defendant doctor’s (Stanger’s) license was under a stayed suspension at the time he wrote his affidavit in support of the summary judgment motion, and he failed to mention the stayed suspension in his affidavit.  For that reason, among others, the court deemed the affidavit an insufficient basis for summary judgment:

…[W]e nonetheless are … by the fact that Stanger failed to disclose the status of his medical license when he prepared his affidavit in support of defendants’ motions for summary judgment. The very first paragraph of Stanger’s affidavit recites, “I am a physician duly licensed to practice in the State of New York.” Noticeably absent from both that opening paragraph and Stanger’s affidavit as a whole is any mention of the fact that, only two months earlier, a one-year stayed suspension of his medical license had been imposed and that he was practicing medicine subject to certain terms of probation. This glaring omission is entirely inconsistent with Stanger’s ethical obligations as a practicing physician and, in our view, [*4]seriously calls into question the medical opinion he has rendered regarding his diagnosis, care and treatment of decedent. Additionally, further review of Stanger’s affidavit reveals that the opinion set forth therein was “[b]ased on [Stanger’s] review of the [medical] records in this matter, as well as [his] personal recollection of the care and treatment rendered to [decedent].” In this regard, Stanger acknowledged that he did not complete his charting of decedent’s January 29, 2009 hospital visit until after he (1) learned that decedent had returned to the emergency department the following day, (2) was advised that decedent had died, and (3) had been questioned by another physician regarding the care and treatment he had provided to decedent the previous day. Under these circumstances, we do not find Stanger’s affidavit to be sufficient to satisfy defendants’ initial burden on the motions for summary judgment, thereby warranting the denial thereof. Howard v Stanger, 2014 NY Slip Op 08088, 3rd Dept 11-20-14