McDONALD v. STATE 105357 (2004)

 Contrary to the contention of claimant, the Court of Claims properly dismissed his claim based on his failure to present expert medical evidence.   Because the claim “ ‘substantially related to medical diagnosis and treatment, the action it gives rise to is by definition one for medical malpractice rather than for simple negligence’ ” (Russo v. Shah, 278 A.D.2d 474, 475, 718 N.Y.S.2d 74;  see Harrington v. St. Mary's Hosp., 280 A.D.2d 912, 720 N.Y.S.2d 693, lv. denied 96 N.Y.2d 710, 727 N.Y.S.2d 696, 751 N.E.2d 944).   Claimant's allegation that the lack of medical treatment resulted in claimant's need for surgery is an allegation concerning the medical consequences of the lack of treatment and is an allegation that is not “within the ordinary experience and knowledge of laypersons” (Mosberg v. Elahi, 80 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353).   Expert medical opinion evidence was therefore required (see id.;  Ferretti v. Town of Greenburgh, 191 A.D.2d 608, 611, 595 N.Y.S.2d 494, appeal dismissed 82 N.Y.2d 748, 602 N.Y.S.2d 806, 622 N.E.2d 307, lv. denied 82 N.Y.2d 662, 610 N.Y.S.2d 149, 632 N.E.2d 459;  Weiss v. Zuckerman, 114 A.D.2d 895, 495 N.Y.S.2d 69).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: