Appellate Practice Group Obtains Reversal Based on Plaintiff’s Reliance on an Unqualified Medical Expert
Dan Ratner and Daryl Paxson of HPM&B’s appellate practice group recently obtained a reversal and dismissal of a medical malpractice complaint, convincing the Appellate Division, Second Department that plaintiff’s expert, in opposition to a summary judgment motion, failed to adequately demonstrate his credentials for offering an opinion as to a standard of care that was outside his area of specialization.
The case involved pediatric gastroenterology and the expert in question was neither a surgeon nor a pediatrician, and had never done a residency in these specialties. Rather, he is a pathologist who last worked as a practicing physician in California in the 1960’s and 1970’s. During that same period, plaintiff’s expert had been placed on probation for issuing prescriptions for barbiturates, without first examining a patient or ascertaining any specific need for the narcotics that he prescribed. After working for a short time as a medical examiner (he lost that position for failing to show up at a crime scene), plaintiff’s expert began his career as a professional expert. See Behar v. Coren, 2005 NY Slip Op 6890; 2005 N.Y. App. Div. LEXIS 9513 (Sept. 26, 2005).