Summary
dismissing punitive damages demand based on medical malpractice claim relating to hepatitis C, while sustaining punitive damages demand based on claim relating to hepatitis B
Summary of this case from Ross v. Louise Wise Services, Inc.Opinion
7635.
January 19, 2006.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 10, 2004, which denied defendant's motion for partial summary judgment (1) on the issue of whether plaintiff contracted hepatitis C because of defendant's medical malpractice, and (2) dismissing plaintiff's claim for punitive damages, unanimously modified, on the law, to dismiss the claim for punitive damages arising from contraction of hepatitis C, and otherwise affirmed, without costs.
Ellenberg Rigby, LLP, New York (Michael A. Ellenberg of counsel), for appellant.
Law Office of Gregory J. Cannata, Irvington (Diane Welch Bando of counsel), for respondent.
Before: Andrias, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ., concur.
We reject defendant's contention that because plaintiff's expert is a pathologist and not an internist or epidemiologist, he is unqualified to give an expert opinion with regard to how and when plaintiff contracted hepatitis C. The expert's qualifications go to the weight rather than the admissibility of his testimony ( see Hill v. New York Hosp., 277 AD2d 117). Similarly, any prior immoral acts or suspensions of his license bear on his credibility but do not preclude him from testifying as an expert ( cf. Spanier v. New York City Tr. Auth., 222 AD2d 219). The claim for punitive damages as to hepatitis B was properly sustained upon a record sufficient to permit a jury to find that defendant's conduct demonstrated a gross indifference to patient care and a danger to the public ( cf. Graham v. Columbia Presbyt. Med. Ctr., 185 AD2d 753); however, the record was insufficient to raise an issue of fact as to punitive damages as to hepatitis C.