In an action for medical malpractice, negligent credentialing and hiring, and lack of informed consent, plaintiff alleged that Gallardo Levin Reiter & Rogers‘ client, a radiology facility improperly performed an MRI resulting in various personal injuries. Gallardo Levin Reiter & Rogers moved for summary judgment dismissal of plaintiff’s claims against its client. In support of its motion, Gallardo Levin Reiter & Rogers proffered the affidavit of the MRI Technologist who performed the subject MRI. The MRI Technologist does not remember plaintiff as plaintiff did not report an incident. Therefore, in the Affidavit, the MRI technologist averred as to the usual custom and practice that he would have used in performing the MRI – the same custom and practice he has utilized in performing MRIs on seven to thirteen patients per day for nineteen years. The lower court granted Gallardo Levin Reiter & Rogers‘ client partial summary judgment dismissing plaintiff’s claims based on negligent credentialing/supervision and lack of informed consent but denied its request for dismissal of plaintiff’s medical malpractice claim. In reaching its decision, the lower court found the MRI Technologist’s Affidavit outlining his custom and practice in performing MRIs insufficient to make out a prima facie case and that he did not qualify as an expert.
On appeal, the Supreme Court of the State of New York, Appellate Division: Second Judicial Department (the “Second Department”) reversed the lower court’s decision and granted Gallardo Levin Reiter & Rogers‘ client summary judgment dismissing plaintiff’s medical malpractice cause of action against it. In reaching its decision, the Second Department agreed with Gallardo Levin Reiter & Rogers‘ arguments that: (1) the MRI Technologist’s custom and practice in performing MRIs outlined in his Affidavit was sufficient to permit the inference that he followed the same procedure when performing the subject MRI; and (2) his Affidavit sufficiently demonstrates that he possesses the requisite knowledge and experience to render an expert opinion as to the proper operation of the subject MRI machine. The case was handled by Gallardo Levin Reiter & Rogers Partners Christopher T. Rogers and Renton D. Persaud.