BUNTING v. Richard A.R. Fraser, M.D., et al., Defendants. (2002)

Supreme Court, Appellate Division, First Department, New York.

Thomas BUNTING, Plaintiff-Appellant, v. Samuel H. SELESNICK, M.D., Defendant-Respondent, Richard A.R. Fraser, M.D., et al., Defendants.

Decided: December 05, 2002

WILLIAMS, P.J., NARDELLI, ROSENBERGER, ELLERIN and LERNER, JJ.

John V. Decolator, for Plaintiff-Appellant. Nancy A. Breslow, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Robert Lippmann, J. and a jury), entered June 23, 2000, in favor of the defendant and against the plaintiff in a medical malpractice action, unanimously reversed, on the law, without costs, the judgment vacated, the complaint reinstated and the matter remanded for a new trial.

At issue in this medical malpractice action is whether the trial court's refusal to allow plaintiff's medical expert to testify on the ground that a CPLR 3101(d) notice was error, and if so, whether such error was harmless. We find that the trial court erred in precluding plaintiff's medical expert from testifying as to causation and that such error was not harmless. The issues of defendant's alleged departure from accepted standards of surgical care and causation are so intertwined that expert testimony on both issues is required to be placed before the jury in the first instance so that they may make informed decisions when rendering their verdict.

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