Segall v. Heyer
| Decision Date | 22 May 1990 |
| Citation | 161 A.D.2d 471,555 N.Y.S.2d 738 |
| Parties | Devorah Ann SEGALL, Plaintiff-Respondent, v. Albrecht HEYER, Defendant-Appellant, and Karl E. Humiston, M.D., et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
W.A. Wingate, New York City, for plaintiff-respondent.
S.S. Gartner, for defendant-appellant.
Before KUPFERMAN, J.P., and SULLIVAN, ROSENBERGER, ELLERIN and SMITH, JJ.
Order, Supreme Court, New York County (Ira Gammerman, J.) entered on or about November 2, 1989, which granted plaintiff's motion for reargument/renewal and on reargument/renewal, denied defendant Albrecht Heyer's motion for summary judgment, unanimously affirmed, with costs.
Plaintiff was referred by her doctor to defendant Albrecht Heyer, a nutritionist at defendant Humiston Health Center, to design a proper diet compatible with her allergic conditions. She initially met briefly with defendant Karl E. Humiston, M.D. The only other contact plaintiff had with Dr. Humiston on subsequent visits was the administration of intravenous injections of Vitamin C. Plaintiff thereafter met with Heyer who obtained her medical history, and had a blood and a stool test taken and planned her diet. Upon receiving test results, Heyer prescribed a drug called Iodoquinol. The prescription was written by Dr. Humiston on Humiston Center letterhead. Unhappy with the progress of her treatment, plaintiff stopped going to the health center in June, 1985, but returned in January 1986. She met with Heyer on January 14, 1986 who performed a "fingernail test", told her she had a different parasite from the one for which she was treated in the past, and prescribed two drugs, Carbarsone and Atabrine, both prescriptions signed by Dr. Humiston on health center letterhead. Plaintiff complained of severe pains upon taking the drugs but claims Heyer told her to continue the medication. She was thereafter admitted to Long Island College Hospital on January 22, 1986 and treated for arsenic poisoning and an allergic drug reaction. She was discharged on January 31, 1986.
Plaintiff commenced this action, alleging two causes of action, medical malpractice and ordinary negligence. Heyer moved to dismiss the complaint on the basis that the allegations of medical malpractice as to him were insufficient as a matter of law, or, in the alternative, for summary judgment for failure to demonstrate that his nutritional advice was the proximate cause for plaintiff's injuries. Plaintiff did not submit an expert's affidavit in opposition to the motion. The court dismissed the action as to Heyer, holding that expert testimony was necessary to establish a prima facie case as the negligence allegations were not within the knowledge of an ordinary lay person.
Plaintiff moved to renew and reargue, which motion included an...
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