Enu v. Sobol

171 A.D.2d 302, 576 N.Y.S.2d 378, 1991 N.Y. App. Div. LEXIS 14443
CourtAppellate Division of the Supreme Court of the State of New York
DecidedNovember 14, 1991
StatusPublished
Cited by13 cases

This text of 171 A.D.2d 302 (Enu v. Sobol) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Enu v. Sobol, 171 A.D.2d 302, 576 N.Y.S.2d 378, 1991 N.Y. App. Div. LEXIS 14443 (N.Y. Ct. App. 1991).

Opinion

OPINION OF THE COURT

Casey, J.

Based upon the findings and recommendation of a Hearing Panel, as modified during the administrative review process (see, Education Law § 6510-a; Public Health Law § 230), respondent Board of Regents determined that petitioner, a urologist, was guilty of professional misconduct in that he had practiced his profession with gross negligence. The gross negligence was found to arise out of petitioner’s preoperative misdiagnosis of a mass in the kidney of an 85-year-old patient as renal cell carcinoma and petitioner’s continuation of the surgical removal of the kidney after it became clear that the mass was not renal cell carcinoma. The finding of gross [304]*304negligence was based largely upon the testimony of a general surgeon who was of the opinion that information available to petitioner prior to the operation suggested that the mass was something other than simple renal cell carcinoma and that petitioner’s observation during the early stages of the surgery should have alerted him that the mass was an inoperable malignant lymphoma. In addition to his own testimony, petitioner presented testimony of two other urologists who were of the opinion that petitioner’s conduct did not deviate from accepted standards of urological care. Petitioner contends that the Board of Regents erred in relying upon the opinion testimony of a general surgeon to establish that petitioner, a specialist, was guilty of gross negligence in the practice of his specialty.

We reject the concept, implied in petitioner’s brief and expressed in the brief of the amici curiae, that only a specialist practicing in the particular specialty is competent to testify that another specialist departed from accepted practice in the specialty. To qualify as an expert, the witness should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable (Matott v Ward, 48 NY2d 455, 459). Thus, if a physician possesses the requisite knowledge and expertise to make a determination on the issue presented, he need not be a specialist in the field (Joswick v Lenox Hill Hosp., 161 AD2d 352, 355). The question of whether a physician may testify regarding the standard of accepted medical practice outside the scope of his specialty can be a troublesome one (compare, Hoagland v Kamp, 155 AD2d 148, 151-152, with Weinstein v Daman, 132 AD2d 547, 550, Iv dismissed 70 NY2d 872, 951), but appellate courts have rejected claims of error directed at a physician’s qualifications to offer an opinion outside the scope of his specialty when the witness’s specialty is closely related to the specialty at issue (e.g., Fuller v Preis, 35 NY2d 425, 431 [neurologist permitted to give an opinion in the closely related specialty of psychiatry on the issue of whether an accident was the proximate cause of a subsequent suicide]; Humphrey v Jewish Hosp. & Med. Center, 172 AD2d 494 [general surgeon not unqualified to render an opinion in the specialty of obstetrics and gynecology]; Matter of Sang Moon Kim v Ambach, 68 AD2d 986, 987 [opinion testimony of qualified neurosurgeon at professional misconduct hearing sufficient to permit a finding of gross negligence or gross incompetence of orthopedic surgeon during spinal surgery]).

[305]*305In this proceeding, it is undisputed that the expert for the Office of Professional Medical Conduct (hereinafter OPMC) is a qualified general surgeon who practices radical surgery, often involving various forms of cancer. It is also undisputed that urologists are surgeons who specialize in diseases of the genitourinary tract. Although petitioner’s cross-examination of OPMC’s expert raised a question concerning the extent of the expert’s training and expertise in the specialized area of diseases of the genitourinary tract, we are of the view that the record conclusively establishes that the expert’s practice of general surgery was closely related to the specialty of urology so that the expert was qualified to render an opinion regarding the care rendered by petitioner in the particular medical case under review (see, Humphrey v Jewish Hosp. & Med. Center, supra; Matter of Sang Moon Kim v Ambach, supra; see also, Fuller v Preis, supra).

Although the criticism of the expert’s qualifications was not sufficient to preclude him from rendering an opinion in this case, it remained a factor to be considered by the trier of fact in determining the weight to be accorded to the expert’s testimony (see, Meiselman v Crown Hgts. Hosp., 285 NY 389, 398-399; Richardson, Evidence § 368, at 343 [Prince 10th ed]; 3 Frumer-Biskind, Bender’s New York Evidence § 101.01).

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Bluebook (online)
171 A.D.2d 302, 576 N.Y.S.2d 378, 1991 N.Y. App. Div. LEXIS 14443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/enu-v-sobol-nyappdiv-1991.