Opinion
2925/05.
July 13, 2009.
MC ANDREW CONBOY PRISCO, Woodbury, NY, Attorney for Plaintiff.
LAW OFFICES OF CHARLES X. CONNICK, P.L.L.C, Mineola, New York, Attorneys for Defendant/Geier, Lipp.
FUREY, FUREY, LEVERAGE, MANZIONE WILLIAMS DARLINGTON. Hempstead, NY, Attorneys for Michael, Winthrop.
The following papers having been read on this motion:
Notice of Motions ................ 1,2 Opposition ....................... 2 Reply ............................ 3,4 Sur-Reply ........................ 5
The motion by defendants Steven Geier ("Geier"), Alan S. Lipp ("Lipp") and a motion by defendants Hazar Michael ("Michael") and Winthrop Gastroenterology ("Winthrop Gastro") for orders, pursuant to CPLR 3212, granting them summary judgment as to the plaintiff's complaint and all cross claims are both denied for the reasons set forth herein.
Plaintiff commenced this medical malpractice action against defendants for various issues including their alleged failure to care for plaintiff, properly perform or perform procedures as well as the performance of unnecessary surgical procedures, and to properly diagnose plaintiff's true condition.
Both Geier and Lipp as well as Michael and Winthrop Gastroenterology allege their treatment of the plaintiff did not depart from good and accepted medical standards. Both sets of moving defendants have offered sworn expert affidavits (see the affidavit of Dr. Perry Milman following the Meyer affidavit annexed to the Geier/Lipp motion; see the affidavit of Dr. Peter Stevens annexed as Exhibit D to the Michael/Winthrop Gastroenterology motion) that the moving defendants did follow and observe good and accepted medical practice in their respective treatment of plaintiff.
Here, the defendants, with their expert affidavits, have primafacie shown that they did follow good and accepted medical practice in treating the plaintiff ( see Howard v Kennedy, 60 AD3d 905 [2nd Dept.]).
In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the primafacie showing by the defendant physician that he or she was not negligent in treating the plaintiff so as to demonstrate the existence of a triable issue of fact ( see Bowman v Chasky, 30 AD3d 552).
Thus, in opposing the defendant's motion, the plaintiff must submit a physician's statement attesting to the defendants' departure from accepted practice, which departure was a competent producing cause of the injury ( see Murray v Hirsch, 58 AD3d 701).
Initially, plaintiff submitted an affirmation by Dr. Donald DeSantis (see Exhibit B annexed to plaintiff's affirmation in opposition).
Under CPLR 2106, attorneys, physicians, osteopaths and dentists who are not parties to an action and are authorized to practice in New York are allowed to serve or file affirmations of truth in lieu of affidavits. Chiropractors, engineers, architects, and funeral directors are not among those entitled to submit affirmations of truth ( see Cases v Montero, 48 AD3d 728; Lowenture v McKay, 266 AD2d 516; Woodard v City of New York, 262 AD2d 405; Estate of Naber by Naber v Hannon, 231 AD2d 849), since the attorneys' physicians, dentists, osteopaths all have professional obligations of honesty.
An affirmation of plaintiff's physician who is not authorized by law to practice in the state of New York lacks probative value and thus was insufficient to raise a triable issue of fact in opposition to defendants' prima facie showing of an entitlement to summary judgment on a plaintiff's medical malpractice claim ( see Worthy v Good Samaritan Hospital Medical Center, 50 AD3d 1023; Palo v Lott, 270 AD2d 323, lv to app den. 95 NY2d 849).
Here, Dr. DeSantis is licensed to practice in Pennsylvania and North Carolina, not in New York. An out-of-state physician, not subject to potential New York State professional regulatory bodies, is required to submit statements after appearing before a notary public or similar officer. The court assumes such an affidavit by an out-of-state physician is required based is required based on the concept that the out-of-state physician would be more likely to be truthful since the swearing before a notary in the physician's state where he or she is licensed would set forth a better case of prosecution for the crime of perjury ( see Practice Commentaries, CPLR § 2106, Vol. 7B, pg. 816).
In order to remedy the this procedural defect, Plaintiff now has offered an affidavit by Dr. DeSantis (Plaintiff's Sur-reply, Exhibit A).
An objective examination of Dr. DeSantis' affidavit appears to be a thorough qualitative assessment of plaintiff's position from Dr. DeSantis' perspective, and the affidavit has the requisite specificity to present a viable expert opinion. Clearly, Dr. DeSantis' affidavit may be used to oppose defendants' motion.
Defendants allege that the plaintiff has offered a "new theory" to her malpractice based on Dr. DeSantis' reference to a presence of a "secondary gallbladder."
This is not a "new treatment" or "new theory": Plaintiff has always alleged the defendants misdiagnosed her initial problem and caused her pain and suffering due to defendants' alleged pursuit of incorrect or "phantom" issues. Plaintiff alleges her true initial problem was "secondary gallbladder" issue that defendants did not properly diagnose in the first instance. This cannot be labeled a "new theory." Plaintiff, in her complaint, does state defendants failed to properly diagnose her medical condition ( see Exhibit a, ¶ 29, annexed to the Geier/Lipp motion). Plaintiff restates this in her Verified Bill of Particulars, ¶ 6 (Plaintiff's Sur-reply, Exhibit A).
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of the injury or damage ( see Sherman-Conrades v Winfred Masterson Burke Rehabilitation Hospital, 51 AD3d 769).
A physician need not be a specialist in a particular field to qualify as a medical expert ( Kwon v Martin, 19 AD3d 664; Bodinsiek v Schwartz, 292 AD2d 411). Any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony ( Kwon v Martin, supra; Gordon v Tishman Construction Corp., 264 AD2d 499).
The affidavit of Dr. Donald DeSantis alleges he has performed numerous open and closed gallbladder surgeries, common duct exploration, and 3000 gallbladder surgeries. Dr. DeSantis contends he has extensive experience in the gastroenterology field. Dr. DeSantis appears to qualify as an expert herein.
While a medical expert need not be a specialist in a particular field to testify regarding accepted practice in that field, the witness nonetheless should be possessed of the requisite skill, training and education, knowledge or experience from which it can be assumed that the opinion rendered is reliable ( see Mustello v Berg, 44 AD3d 1018). Based on Dr. DeSantis' affidavit, he has the sufficient skill, etc., to render a viable, reliable opinion as to the defendants.
Here, the plaintiff has submitted a sworn affidavit ( see Exhibit A annexed to plaintiff's surreply) wherein the expert, Dr. DeSantis, a board-certified surgeon, alleged Geier, Lipp, Michael and Winthrop Gastro all departed from good and accepted medical practice in the care and treatment of plaintiff. Thus, in opposition to the defendants' prima facie showing, the plaintiff has adduced sufficient evidence to raise a triable issue of fact as to whether or not the defendants followed good and accepted medical standards in their treatment of plaintiff and that such departure constituted a proximate cause of the alleged injury ( Biggs v Mary Immaculate, 303 AD2d 702).
Thus, the record now before the court presents a credibility battle among the parties' experts.
The credibility of witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, are issues for the trier of the facts ( Lelekakis v Kamamis, 41 AD3d 662; Pedone v B B Equipment Co., Inc., 239 AD2d 397).
Summary judgment is not appropriate when the parties present experts with conflicting opinions; such credibility issues are properly left to the trier of fact for resolution ( Roca v Perel, 51 AD3d 757; Barbuto v Winthrop University Hospital, 305 AD2d 623).
This constitutes the decision and order of this Court.