You are here: / / CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED.
,

CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED.

The Third Department determined the certificate of merit filed in this medical malpractice action was inadequate. The complaint alleged malpractice by a surgeon. The certificate was based on the affidavit of plaintiff’s (Calcagno’s) physical therapist:

A certificate of merit “merely ensures that counsel has satisfied himself or herself that there is a reasonable basis for the commencement of an action” … . The statute requires counsel to submit a certificate of merit declaring that he or she has consulted with at least one licensed physician who is knowledgeable regarding the relevant issues in the action, has reviewed the facts of the case, and has thus concluded that such a reasonable basis exists … .

We agree with Supreme Court that the certificate proffered by plaintiffs is inadequate. The allegations of malpractice arise from defendants’ diagnosis and surgical treatment, and the certificate of merit is based upon an affidavit of Calcagno’s physical therapist, who opined, “as a physical therapist,” that defendants’ actions were “departures from good and accepted medical practice.” However, by definition, a physical therapist cannot diagnose and is incompetent to attest to the standard of care applicable to physicians and surgeons … . Moreover, we find no merit in plaintiffs’ contention that the certificate of merit should be deemed adequate, as it was also based on certain medical reports, Calcagno’s testimony, and the pleadings. Review of these documents, standing alone, cannot suffice. Expert analysis is required to establish whether there was any departure from established standards of care, and whether any such departure was the proximate cause of injury to Calcagno … . Calcagno v Orthopedic Assoc. of Dutchess County, PC, 2017 NY Slip Op 01616, 3rd Dept 3-2-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/MEDICAL MALPRACTICE (CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)/CERTIFICATE OF MERIT (MEDICAL MALPRACTICE, CERTIFICATE OF MERIT INADEQUATE, COMPLAINT DISMISSED)

You might also like
Appellant Entitled to a Hearing on His Motion to Vacate His Conviction—Questions of Fact Whether Witness Testimony Was Induced by Threats and/or Promises Not Disclosed to the Defense at Trial
THE PUBLIC ASSISTANCE BENEFIT RECEIVED BY CLAIMANT DURING PARTICIPATION IN A WORK EXPERIENCE PROGRAM (WEP) CONSTITUTED WAGES FOR THE PURPOSE OF CALCULATING WORKERS’ COMPENSATION BENEFITS FOR ON THE JOB INJURY (THIRD DEPT).
NO SCHEDULE LOSS OF USE (SLU) BENEFITS CALCULATED BASED UPON THE LOSS OF USE OF THE KNEE AND ANKLE SEPARATELY, AS OPPOSED A CALCULATION BASED UPON THE LOSS OF USE OF THE LEG AS A WHOLE (THIRD DEPT).
BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT).
INDICTMENT COUNTS ALLEGING FALSIFYING BUSINESS RECORDS RELATING TO PAYROLL AND THE EMPLOYMENT OF A MINOR IN VIOLATION OF THE LABOR LAW SHOULD NOT HAVE BEEN DISMISSED, LEGAL SUFFICIENCY CRITERIA EXPLAINED (THIRD DEPT).
RESTITUTION ORDERED AT SENTENCING (ABOUT $45OO) WAS ABOUT $500 HIGHER THAN THE AMOUNT AGREED TO IN THE PLEA DEAL, DEFENDANT SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO WITHDRAW HIS PLEA (THIRD DEPT).
Backhoe Bucket Not “Falling Object” Within Meaning of Labor Law 240 (1)
TOWN’S PUBLIC ROAD EASEMENT IS THREE RODS WIDE AND IS NOT CONFINED TO THE PAVED PORTION OF THE ROAD.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF’S ALLEGATION SHE SAW A DENT IN A WAXY SUBSTANCE MADE BY HER... LEAD POISONING, STATUTE OF LIMITATIONS RUNS FROM WHEN THE SYMPTOMS ARE FIRST...