Krinsky v. RachleffKrinsky v. Rachleff
In an action to recover damages for
Ordered that the judgment is reversed, on the law and as a matter of discretion, and the matter is remitted to the Supreme Court, Nassau County, for a new trial, with costs to abide the event.
The plaintiff Alan Krinsky underwеnt wrist surgery under general anesthesia administered by the defendant Dr. Alan Rachleff. A few days later, Krinsky experienced symptoms associаted with pulmonary infection and pneumonia. A bronchos-copy revealed an abnormality or foreign object embedded in his lung. Thе object was partially removed during the bronchos-copy and what remained was removed by surgery, along with a portion of his lung. This aсtion ensued. A jury rendered a verdict in favor of the plaintiffs.
Initially, we find that the plaintiffs established a prima facie case of medical malpractice warranting submission of the case to the jury (see, Hughes v New York Hosp.-Cornell Med. Ctr.,
At the trial, the plaintiffs presented testimony of two experts, a pathologist and a pulmonologist, both of whom rendered an opinion that thе object removed from Alan Krinsky’s lung was a piece of the endоtracheal tube inserted into the plaintiff’s trachea by the appellant during Krinsky’s wrist surgery. The pathology expert, Dr. Lone Thanning, testified that she compared the pathology slides of the matter takеn from Krinsky’s lung with slides she had prepared from scrapings from an endotrаcheal tube, and found the “crystals” in each to be identical and “non-polarizing”.
The appellant intended to call two pathologists, one of whom was originally retained by a codefendant against whom the complaint had been dismissed just prior to trial. Upоn the plaintiffs’ objection, the court ruled that the defendant would have to choose between the two experts because the testimony would be cumulative. Counsel proceeded with the first expert who was already on the stand. That expert had not examined and did not testify regarding the endotracheal tube pathology slides. The defendant made an application to call Dr. Leslie Lukash to testify only that he had prepared a set of endоtracheal tube pathology slides and found them to be polаrizing,
The trial court also precluded the Krinsky’s pulmonоlogist, Dr. Paul Hamlin, a defense witness, from testifying whether the abnormality or fоreign matter he observed in Krinsky’s lung during the bronchoscopy was a piece of the endotracheal tube. This was error. In addition to testifying to his or her own observations, a treating physician may give expert opinion testimony (see, Perrone v Grover,
The defendant’s contention that Dr. Thanning’s testimony exceedеd the scope of the plaintiffs’ expert disclosure notice is academic since Dr. Lukash may testify at the new trial and can contradict Dr. Thanning’s findings.
In light of our determination, we do not reach the defendant’s remaining contentions. Ritter, J. P., Santucci, Goldstein and Feuerstein, JJ., concur.