THE MALPRACTICE ACTION WAS AGAINST EMERGENCY-ROOM PHYSICIANS WHO TREATED PLAINTIFF’S DECEDENT’S GUNSHOT WOUNDS; PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE ANY FAMILIARITY WITH EMERGENCY MEDICINE AND THEREFORE DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ summary judgment in this medical malpractice action should have been granted because the expert affidavit offered in opposition was deemed “conclusory” and insufficient to raise a question of fact. Plaintiff’s decedent died from three gunshot wounds. Plaintiff’s expert did not demonstrate any familiarity with the practice of emergency medicine:

“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'” … .

Here, the plaintiff submitted an affirmation of a physician who engaged in the private practice of internal medicine and cardiology. However, the affirmation did not indicate that the physician had training in emergency medicine or what, if anything, the physician did to become familiar with the standard of care for this specialty … . Furthermore, the affirmation was conclusory, speculative, and unsupported by the evidence … . Thus, the plaintiff failed to raise a triable issue of fact. Quinones v Winthrop Univ. Hosp., 2024 NY Slip Op 04406, Second Dept 9-11-24

Practice Point: Here plaintiff’s expert did not demonstrate any familiarity with emergency medicine. Plaintiff’s decedent died from gunshot wounds. Plaintiff’s expert’s affidavit was deemed “conclusory” and insufficient to raise a question of fact.