Gross v. Friedman

Citation73 N.Y.2d 721,532 N.E.2d 92,535 N.Y.S.2d 586
Parties, 532 N.E.2d 92 Kenneth W. GROSS, Appellant, v. Richard FRIEDMAN, Respondent.
Decision Date17 November 1988
CourtNew York Court of Appeals
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum of that court (138 A.D.2d 571, 526 N.Y.S.2d 152).

We add that the recommendation of the medical malpractice mediation panel (see, Judiciary Law § 148-a[8] ) that "there is liability on the part of the defendant" does not establish a prima facie case of medical malpractice. Although such a recommendation is admissible, it remains the fact finder's independent duty to determine, among other things, the accepted standard of medical practice, whether defendant departed from that standard and, if so, whether such departure was the proximate cause of plaintiff's injuries (see, Treyball v. Clark, 65 N.Y.2d 589, 493 N.Y.S.2d 1004, 483 N.E.2d 1136). The panel's conclusory assertion provided no basis for the jury to make such determinations and, accordingly, does not cure the deficiencies in the proof as to such matters that were identified by the Appellate Division.

WACHTLER, C.J., and SIMONS, KAYE, ALEXANDER, HANCOCK and BELLACOSA, JJ., concur.

TITONE, J., taking no part.

ORDER AFFIRMED, WITH COSTS, IN A MEMORANDUM.

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43 cases
  • Stukas v. Streiter
    • United States
    • New York Supreme Court — Appellate Division
    • 8 March 2011
    ...standards of practice, and that such departure was a proximate cause of the plaintiff's injuries ( see Gross v. Friedman, 73 N.Y.2d 721, 722-723, 535 N.Y.S.2d 586, 532 N.E.2d 92; Heller v. Weinberg, 77 A.D.3d 622, 909 N.Y.S.2d 477; Myers v. Ferrara, 56 A.D.3d 78, 83, 864 N.Y.S.2d 517; Musia......
  • Jacobs v. Carter
    • United States
    • New York Supreme Court
    • 1 September 2020
    ... ... and accepted standards of medical practice and that such ... departure proximately caused his or her injuries (Gross v ... Friedman, 73 N.Y.2d 721, 535 N.Y.S.2d 586 [1988]; ... Macancela v Wyckoff Heights Med. Ctr., 176 ... A.D.3d 795, 109 N.Y.S.3d 411 [2d Dept ... ...
  • Seliger v. Wagner
    • United States
    • New York Supreme Court
    • 1 June 2021
    ...good and accepted standards of medical practice, and that such departure proximately caused his or her injuries (see Gross v Friedman, 73 N.Y.2d 721, 535 N.Y.S.2d 586 [1988]; Bongiovanni v Cavagnuolo, 138 A.D.3d 12, 16, 24 N.Y.S.3d 689, 692 [2d Dept 2016]; Stukas v Streiter, 83 A.D.3d 18, 2......
  • Sessa v. Peconic Bay Med. Ctr.
    • United States
    • New York Supreme Court — Appellate Division
    • 29 December 2021
    ...of practice, and that such deviation or departure was a proximate cause of the plaintiff's injuries (see Gross v. Friedman, 73 N.Y.2d 721, 723, 535 N.Y.S.2d 586, 532 N.E.2d 92 ; Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). Thus, a defendant moving for summary judgment dismissin......
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