Plaintiff Presents Conclusory Expert Affirmation From Physician or Different Specialty Who Was Not Practicing At Time of Care Resulting in Order of Summary Judgment
In 2018 Mia-Laine Martinez obtained an order of summary judgment in Supreme Court, Nassau County, on behalf of our defendant internist and gastroenterologist. The case involved claims of a failure to diagnose acute cholecystitis and improper performance of an ERCP leading to a retained cystic duct stone which resulted in sepsis, cholangitis and ultimately surgery to remove the stone. The defendants submitted an expert affirmation from a well-credentialed and Board Certified gastroenterologist who opined all treatment was within standard of care; in reply we argued the expert affirmation submitted by plaintiff’s counsel was insufficient both on medical grounds and as to the expert’s qualifications to offer that commentary. Justice She agreed, noting not only was the affirmation wholly conclusory, it also lacked credibility as the expert was a surgeon, not an internist or gastroenterologist, and moreover was not practicing any kind of medicine during the time of treatment.