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FOUNDATION FOR OPINION EVIDENCE OUTSIDE PLAINTIFF’S EXPERT’S FIELD WAS NOT LAID, DEFENDANT SURGEON’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s decedent died from a pulmonary embolism five days after knee replacement surgery. Plaintiff contended decedent was not given the proper dosage of a medication designed to prevent deep vein thrombosis (DVT). The Second Department noted that the plaintiff’s expert was a forensic pathologist and a proper foundation for expert opinion outside the expert’s field was not laid:

“While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable”… . “Thus, where a physician provides an opinion beyond his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered”… . Here, the plaintiff’s expert, who specialized in forensic pathology, did not indicate that he had any specific training or expertise in orthopaedic surgery, or prophylactic anticoagulation treatment to prevent DVT, and failed to “set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice” … . Noble v Kingsbrook Jewish Med. Ctr., 2019 NY Slip Op 00608, Second Dept 1-30-19

 

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