The Bronx appellant in this case is appealing by permission an order that denied his motion to vacate a finding of liability made by a medical malpractice panel. There are five main issues to consider on this appeal.
First, the court must consider whether an order that denies a motion to vacate a medical malpractice panel’s finding is appealable in this court.
Second, if the doctor member of the medical malpractice panel must be a specialist that practices in the same field of medicine as the defendant doctor who the malpractice is claimed.
Third, if the medical malpractice panel’s finding in this case is legally insufficient to a finding of liability.
Fourth, whether the medical malpractice panel’s finding should be vacated because the medical panelist failed to disclose that he and one of the codefendant doctors both attended the University of Geneva in Switzerland and are members of the same county wide medical society.
Finally, if the court’s amendments of the rules that regulate medical malpractice panels are retroactive in application and applicable in this case and if they are retroactively applicable if these factors mandate the vacatur of the panel’s finding of liability as to the appellant.
The original medical malpractice action was against the appellant who is a pediatrician and three other doctors who are all obstetricians and the hospital. The plaintiff was seeking damages in the amount of over $5,000,000 for the defendant’s alleged negligence that caused the infant plaintiff to suffer from severe and irreparable damage to his brain and central nervous system. These damages have crippled the infant plaintiff for the rest of his life.
The Clerk of the Supreme Court of Suffolk County issued a letter to the respective counsel to submit pleadings, bills of particulars, and medical and hospital reports. This would then be turned over to the Suffolk County Medical Society for review.
The doctor members of the medical malpractice panel and the attorneys were then identified and told that any objections should be made to the court within five days. There were no objections made and a hearing was held in front of the medical malpractice panel. One of the members of the panel was an obstetrician who the Suffolk County Medical Society had found.
The panel found the appellant liable in the case stating that he had departed from the accepted practices and procedures on his part in the care and treatment that was provided to the infant including his examination of the infant plaintiff and the discharge of the infant from the hospital.
There were no findings made against the defendant obstetricians.
The counsel for the appellant requested that the finding of liability be vacated because the Dr. on the board was an obstetrician and therefor an inappropriate party to review the actions of the appellant and that the doctor had failed to disclose his relationship with one of the defendant obstetricians.
Court Discussion and Decision
In regard to the appellant’s argument that the order should be vacated on account that the doctor representative on the board is an obstetrician and not a pediatrician, the court finds that this fact does not deprive him of a peer review. The issue of disclosure of the doctor’s relationship with another defendant is also not enough evidence to support vacatur. The other issues brought up in this case are found to be insufficient to support the finding of the panel to be vacated and for this reason the appeal is denied.
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