Opinion
Argued October 19, 1988
Decided November 17, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Lester Sacks, J.
Steven M. Schapiro and Perry S. Reich for appellant.
Barbara D. Goldberg for respondent.
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).
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). 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.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA concur; Judge TITONE taking no part.
Order affirmed, with costs, in a memorandum.