Opinion · New York Court of Appeals

Fiore v. Galang

64 N.Y.2d 999

Type
Opinion
Court
New York Court of Appeals
Jurisdiction
New York
Date
1985-03-28
Topic
general

explaining that medical malpractice actions generally require "expert opinion testimony of the standard of care in the community" | explaining that medical malpractice actions generally require “expert opinion testimony of the standard of care in the community” | acknowledging “nearly one hundred years of New York cases” requiring expert evidence in civil tort actions for medical malpractice | “except as to matters within the ordinary experience and knowledge of laymen, ... expert medical opinion evidence is required” to make out both elements of malpractice | ‘LE]xcept as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit[.]”

Citator

Cited by
47 opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We agree that absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital’s motion for summary judgment (Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Canter v Mulnick, 60 NY2d 689; Stolowitz v Mount Sinai Hosp., 60 NY2d 685). Moreover, in light of plaintiffs’ argument that the verified complaint should be accepted as an *1001 affidavit of merits (CPLR 105 [t]), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (cf. Meiselman v Crown Hgts. Hosp., 285 NY 389). This malpractice claim is for negligence in the failure to diagnose cancer and in the performance of an abdominal operation, which are not matters within the ordinary experience of laypersons.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.