Is a Surgeon Qualified to Render an Opinion as to the Standard of Care Applicable by Emergency Technicians?

📖 Case Summary: Rosario v Montefiore Med. Ctr.

The Appellate Division, First Department’s recent decision in Rosario shows that retaining the right expert in a personal-injury case, especially in a medical malpractice lawsuit, is important. The First Department affirmed the motion court’s grant of summary judgment to the defendant, concluding that the plaintiff’s expert’s affirmation was insufficient to defeat the defendant’s summary judgment motion. The plaintiff hired an expert surgeon even though the medical malpractice claim was directed at emergency medical technicians.

⚡️ What Happened:

• The plaintiff’s decedent was transported to the defendant hospital in an ambulance while emergency medical technicians (EMTs) treated her complaints of abdominal pain, nausea, vomiting, cough and dizziness by administering oxygen in adherence with the standard of care.
•  The decedent showed no signs of respiratory distress at the scene, in the ambulance, or upon arrival at the hospital.
• The defendant’s emergency medicine doctor opined that no earlier arrival to the hospital would have altered the decedent’s course of treatment because, on admission to the emergency room, the decedent’s vital signs were normal and she exhibited no signs or symptoms of respiratory distress or an asthma attack.

📝 Court’s Ruling:

• The Court affirmed the motion court’s dismissal of the complaint, with prejudice.
• The First Department concluded that the defendant hospital met its burden by demonstrating that its EMTs adhered to the standard of care in their treatment of the decedent.
• The plaintiff’s expert was a surgeon who purported to be familiar with the proper protocols that paramedics should use. The First Department concluded that the surgeon was not qualified to assess the standard of care for EMTs.
  • The First Department deemed that the plaintiff’s expert’s opinion was conclusory and failed to address key evidence, such as the decedent’s normal vital signs at the scene and upon hospital admission.
  • The First Department also concluded that there was no supporting evidence for the claim that the EMTs had waited outside the decedent’s building for 10-15 minutes.
  • The First Department concluded tha the plaintiff failed to raise any factual issues that would prevent summary judgment.

✅ Key Legal Takeaways:

🔹 The decision reminds practitioners and insurance professionals that finding the right fit when retaining an expert, especially in a medical malpractice lawsuit, is a must.

🔹 As with any supporting affidavit or affirmation, expert or otherwise, it should not be conclusory. A well-supported expert affidavit or affirmation can be the difference between a dismissal of the complaint and a denial of summary judgment against the non-movant.

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