finding that failure to diagnose cancer and the performance of an abdominal operation "are not matters within the ordinary experience of laypersons"Summary of this case from Urena v. Wolfson
Decided March 28, 1985
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, John G. Connor, J.
David D. Glass for appellants.
Norman Bard for respondent.
The order of the Appellate Division should be affirmed, with costs.
We agree that absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment ( Kel Mgt. Corp. v Rogers Wells, 64 N.Y.2d 904; Canter v Mulnick, 60 N.Y.2d 689; Stolowitz v Mount Sinai Hosp., 60 N.Y.2d 685). Moreover, in light of plaintiffs' argument that the verified complaint should be accepted as an affidavit of merits (CPLR 105 [t]), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit ( cf. Meiselman v Crown Hgts. Hosp., 285 N.Y. 389). This malpractice claim is for negligence in the failure to diagnose cancer and in the performance of an abdominal operation, which are not matters within the ordinary experience of laypersons.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.