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THE HOSPITAL DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT LAY A SUFFICIENT FOUNDATION FOR THE EXPERT’S OPINIONS ON MATTERS OUTSIDE OF OBSTETRICS AND GYNECOLOGY; THE HOSPITAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the hospital defendants’ expert’s affidavit did not establish that the expert (D’Amico) was qualified to offer an opinion on several issues surrounding the birth process and therefore did not provide sufficient evidence to support the hospital defendants’ motion for summary judgment:

… [T]he expert affirmation offered by the hospital defendants lacked probative value, because the expert, a physician who was board-certified in the fields of obstetrics and gynecology, failed to lay a foundation for the reliability of his opinions in the fields of pediatrics, orthopedics, or anesthesia.

” 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 opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . “Where no such foundation is laid, the expert’s opinion is of no probative value,'” and is therefore insufficient to meet a party’s burden on a summary judgment motion … . …

We reject the hospital defendants’ contention that D’Amico’s professed familiarity with “postpartum and neonatal care,” through his extensive experience delivering newborns, was sufficient, without more, to establish his qualifications to render reliable opinion testimony on issues including, inter alia: (1) whether [defendant] De Jesus, an orthopedic intern, acted in an appropriate and timely manner in diagnosing and treating Roizman’s [plaintiff’s] pubic bone diastasis; (2) whether [defendant] Naves-Ruiz, a pediatrician, properly responded to the infant’s neonatal oxygen desaturation, properly ruled out sepsis and treated the infant with antibiotics for presumed pneumonia and infection, and performed all appropriate tests; (3) whether the staff of the Lenox Hill Hospital Department of Anesthesiology properly performed Roizman’s epidural; and, (4) whether the staff of Lenox Hill Hospital was negligent and in any way contributed to the plaintiffs’ alleged injuries … . Roizman v Stromer, 2020 NY Slip Op 04196, Second Dept 7-22-20

 

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