Make Sure You Have The Right Expert

Not all cancer experts are alike or qualified to testified about cancers not in their field. This is demonstrated by the Second Department’s decision Tuesday in de Hernandez v Lutheran Med. Ctr., 2007 NY Slip Op 09559. In that medical malpractice action the plaintiff offered the testimony of a physicist who studied the growth patterns of breast cancer in general. However, the decedent at issue had a retroperitoneal sarcoma. Thus, the Court affirmed a dismissal of the plaintiff’s action finding that the proposed expert, who was not a physician, was unqualified to render expert testimony regarding the rate of growth of the decedent’s tumor as he showed no specialized knowledge, experience, training, or education from which it could be inferred that his opinion regarding the growth of the decedent’s sarcoma would be reliable. And thus, since the plaintiff was not able to present any relevant expert testimony, the plaintiff was unable to present a prima facie case of medical malpractice.

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