First Department: Expert Witness Testimony Admissible In Absence Of Expression Of Knowledge Or Background In Specialty At Issue

At trial in Bronx County Supreme Court, plaintiff successor of deceased patient who was treated in defendant hospital's emergency room sought to lead expert testimony from an internal medicine doctor who did not express he had a background or knowledge in emergency medicine. The Supreme Court declined to allow that doctor's expert testimony. The First Department unanimously reversed and allowed the plaintiff''s expert doctor's testimony in Ocasio-Gary v Lawrence Hosp. 2010 NY Slip Op 00003.

"The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion."

In the cited case of Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]) First Department had held:

"In opposition to defendant's prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiff's purported expert was insufficient since it did not indicate either the affiant's specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiff's unpreserved spoliation argument."