From Casetext: Smarter Legal Research

Bodensiek v. Schwartz

Appellate Division of the Supreme Court of New York, Second Department
Mar 11, 2002
292 A.D.2d 411 (N.Y. App. Div. 2002)

Opinion

00-10918

January 15, 2002

March 11, 2002.

In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered August 28, 2000, which, upon the granting of the defendants' motion to dismiss the complaint for failure to establish a prima facie case, made at the close of the plaintiff's case, dismissed the action.

Michael J. Regan, Sayville, N.Y., for appellant.

Martin, Clearwater Bell, New York, N.Y. (Michael H. Zhu, John L. A. Lyddane, and Nancy Breslow of counsel), for respondents.

FRED T. SANTUCCI, J.P., SANDRA J. FEUERSTEIN, GLORIA GOLDSTEIN, and ROBERT W. SCHMIDT, JJ.


ORDERED that the judgment is reversed, on the law, the motion is denied, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial, with costs to abide the event.

The Supreme Court erred in precluding the testimony of the plaintiff's expert, a medical oncologist, in this action against, among others, the defendant Robert S. Schwartz, a gynecological surgeon. The law is settled that a physician need not be a specialist in a particular field in order to qualify as a medical expert (see, Erbstein v. Savasatit, 274 A.D.2d 445; Gordon v. Tishman Constr. Corp., 264 A.D.2d 499; Julien v. Physician's Hosp., 231 A.D.2d 678). Rather, any alleged lack of knowledge in a particular area of expertise is a factor to be weighed by the trier of fact that goes to the weight of the testimony, not its admissibility (see, Gordon v. Tishman Constr. Corp., supra; see also, Fuller v. Preis, 35 N.Y.2d 425; Smith v. City of New York, 238 A.D.2d 500). Here, the plaintiff's proposed expert was going to testify, based upon his past experience in diagnosing and treating gynecological cancers, regarding the necessity of performing a complete hysterectomy as opposed to a more conservative approach. Accordingly, since his testimony should have been allowed at trial, a new trial is required.


Summaries of

Bodensiek v. Schwartz

Appellate Division of the Supreme Court of New York, Second Department
Mar 11, 2002
292 A.D.2d 411 (N.Y. App. Div. 2002)
Case details for

Bodensiek v. Schwartz

Case Details

Full title:MICHELE BODENSIEK, APPELLANT, v. ROBERT S. SCHWARTZ, et al., RESPONDENTS

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 11, 2002

Citations

292 A.D.2d 411 (N.Y. App. Div. 2002)
739 N.Y.S.2d 405

Citing Cases

Zennia v. Ramsey

His affirmation does not include what is typically found in an expert's opinion, namely his training and…

Walsh v. Brown

The appellants' contention that the plaintiffs expert, a board-certified obstetrician/gynecologist surgeon,…