Legal Question in Medical Malpractice in New York
Breach of Contract??
Situation- A doctor (plantiff) wants to bring forth a claim against a patient for recovery of due bills. The patient claims the services were not performed properly and sought by counterclaim to recover for malpractice. I am aware that the patient needs an expert witness to testify on standard of care in order to prove malpractice. My question is, can the doctor himself rely on his own affidavit, submitted in his capacity as an expert, that he was not negligent? Or does he need to produce an expert witness other than himself to sue for delinquent payment.
2 Answers from Attorneys
Re: Breach of Contract??
The Doctor's claim is founded upon a breach of contract theory... simply, there is a debt due and owing whichhas not been paid. For any contract dispute, it is always a valid defense to show that the services contracted for were not performed or were not performed properly (thereby limiting the recovery).
The Doctor, if being sued for Malpractice, should be represented by his malpractice insurance carrier.
Re: Breach of Contract??
The prior attorney, Weicker, answered your question well.
However, I would add that the Court must consider your testimony, whatever its nature and will weigh it accordingly, but, NO, you cannot rely on your own affidavit (or testimony alone) "As an Expert," in your defense.
If this is a case in Small Claims Court, you may be permitted greater latitude in the presentation of your case. Although, your malpractice carrier may require that you report the claim and that they plan your defense.
Good luck,
Phroska L. McAlister,ESQ
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