LACKED FAMILIARITY WITH NEW YORK’S “STANDARD OF CARE”
In a medical malpractice case filed with the Kings County Supreme Court, it was alleged that after a “transcretal prostate biopsy” was performed (by the defendant doctor), T.S. contracted an E-coli bacterial infection.
When the physician later moved for summary judgment (pre-trial relief in his favor), the Kings County judge ended up granting that request and threw the case out.
On appeal, the Appellate Division, Second Department, noted that the record evinced that the defendant affirmatively established that the procedure was performed “in accordance with accepted standards of care.” T.S., on the other hand, was unable to rebut that showing with competent medical proof. His affidavit from a doctor in Uzbekistan was found to be insufficient, as that individual was “unqualified to render an opinion.” Given that the latter failed to “attest to familiarity with the standard of care in New York,” (or to a “minimum standard” anywhere else), his analysis was deemed to have been appropriately discredited and, in the absence of a triable issue of fact, the dismissal was affirmed.
Did TS fail to doctor his case up?
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DECISION