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)