Ashton v. D.O.C.S. Continuum Medical Group

• Decision Date: 22 December 2009
• Docket Number: 1870,102486/07
• Citation: 2009 NY Slip Op 9522,891 N.Y.S.2d 69,68 A.D.3d 613
• Parties: RANDALL ASHTON, Respondent, v. D.O.C.S. CONTINUUM MEDICAL GROUP et al., Appellants.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 613

2009 NY Slip Op 9522

891 N.Y.S.2d 69

RANDALL ASHTON, Respondent, v. D.O.C.S. CONTINUUM MEDICAL GROUP et al., Appellants.

1870

102486/07

Appellate Division of the Supreme Court of New York, First Department.

Decided December 22, 2009.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 30, 2009, which, insofar as appealed from as limited by the briefs, in this medical malpractice action, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

[Prior Case History: 23 Misc 3d 1138(A), 2009 NY Slip Op 51184(U).]

The court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for the expert's opinion, where defendants were permitted to respond and were not otherwise prejudiced (see Orsini v Postel, 267 AD2d 18 [1999]).

The expert medical affirmation submitted by plaintiff, relying on plaintiff's medical records from early 2005 demonstrating the absence of any reference to a cough or a bulge in plaintiff's chest, was sufficient to raise an issue of fact as to whether plaintiff's disease had progressed to the "bulky" stage during the relevant time period and whether his course of treatment would have been different had the disease been diagnosed earlier. Furthermore, the opinion of plaintiff's expert was not merely conclusory, as it relied on plaintiff's medical records to draw conclusions (see Boston v Weissbart, 62 AD3d 517 [2009]; compare Parnell v Montefiore Med. Ctr., 63 AD3d 573, 574 [2009]).

Contrary to defendants' contention, since the opinion of plaintiff's expert did not concern a novel scientific theory of causation, a hearing pursuant to Frye v United States (293 F 1013 [DC Cir 1923]), was unnecessary (see e.g. Marsh v Smyth, 12 AD3d 307 [2004]).

Concur—GONZALEZ, P.J., TOM, SWEENY, FREEDMAN and ABDUS-SALAAM, JJ.