Gross v. Friedman
| Decision Date | 21 March 1988 |
| Citation | 138 A.D.2d 571,526 N.Y.S.2d 152 |
| Parties | Kenneth W. GROSS, Respondent-Appellant, v. Richard FRIEDMAN, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Martin, Clearwater & Bell, New York City (Spencer L. Studwell and Barbara D. Goldberg, of counsel), for appellant-respondent.
Mahler & Harris, P.C., Kew Gardens (Stephen Harris, Steven M. Schapiro and Perry S. Reich, of counsel), for respondent-appellant.
Before THOMPSON, J.P., and BROWN, WEINSTEIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, the defendant appeals from a judgment of the Supreme Court, Queens County (Sacks, J.). entered July 17, 1986, which was in favor of the plaintiff in the principal sum of $25,000, and the plaintiff cross-appeals from so much of the same judgment on the ground of inadequacy.
ORDERED that the judgment is reversed, on the law, with costs, the defendant's motion to dismiss the complaint for the plaintiff's failure to present a prima facie case is granted, the complaint is dismissed, and the cross appeal is dismissed as academic.
Our review of the record reveals that the plaintiff did not make a prima facie showing that the defendant failed to exercise such reasonable care and diligence in his treatment of the plaintiff as would be expected of the average member of his profession and that the plaintiff's injury proximately resulted from the defendant's departure from the required standard of performance ( see, Hylick v. Halweil, 112 A.D.2d 400, 492 N.Y.S.2d 57). Specifically, the plaintiff's expert, who treated and performed surgery upon the plaintiff after the plaintiff had been treated by the defendant, did not state, with any degree of medical certainty, or in any terms "from which it [could] be said that the witness' 'whole opinion' reflect[ed] an acceptable level of certainty" ( Matott v. Ward, 48 N.Y.2d 455, 460, 423 N.Y.S.2d 645, 399 N.E.2d 532), that the plaintiff was, indeed, suffering from appendicitis upon his December 1977 admission to the hospital under the defendant's care. Nor did the expert state that surgery was preferred to the defendant's conservative course of treatment, which was entirely consistent with that of the expert, such that it represented a departure from accepted standards of medical practice (see, Hylick v. Halweil, supra ). Moreover, the plaintiff's expert did not testify either that a failure to diagnose the plaintiff's condition...
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