PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).

The Second Department, in a comprehensive decision, over a comprehensive dissent, determined that the summary judgment motion by one of plaintiff’s treating physicians was properly granted in this medical malpractice case. Neither of plaintiff’s experts was qualified to assess the defendant medical oncologist’s (Hindenberg’s) care of plaintiff. Therefore the expert affidavits did not demonstrate defendant owed a duty of care to the plaintiff (Petillo), which is a question of law for the court:

… [I]n order to reach any discussion[s] about deviation from accepted medical practice, it is necessary first to establish the existence of a duty”… . “‘Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient'” … . “The existence and scope of a physician’s duty of care is a question of law to be determined by the court” … . * * *

Petillo’s internal medicine and infectious disease expert failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist … . The expert did not claim to have any skill, training, education, knowledge, or experience in the field of medical oncology. While the expert gave an opinion that Hindenburg departed from the standards of care applicable to internal medicine, Petillo was not referred to Hindenburg as an internist and Hindenburg did not treat Petillo as an internist, rendering the standard of care for an internist inapplicable.

Petillo’s surgical oncologist expert also failed to lay the requisite foundation to render an opinion on Hindenburg’s actions as a medical oncologist. This expert, a board-certified surgeon who practices in the field of surgical oncology, a specialty distinct from medical oncology, failed to establish that he had the skill, training, education, knowledge, or experience in the field of medical oncology sufficient to provide a foundation to opine on the clinical standard of care and departures of a medical oncologist. Abruzzi v Maller, 2023 NY Slip Op 05704, Second Dept 11-15-23

Practice Point: Before an expert can offer an admissible opinion on the care provided by a doctor in a medical malpractice case, the expert must demonstrate he or she is qualified to assess the care provided by the defendant doctor, here a medical oncologist. The failure to demonstrate the necessary qualifications to assess the care provided by the defendant specialist, constituted the failure to demonstrate the defendant doctor owed a duty to the plaintiff, a question of law for the court.