Practice point: The distinction between malpractice and ordinary negligence turns on whether the acts or omissions complained of involve a
matter of medical science or art requiring special skills not ordinarily
possessed by lay persons, or whether the conduct complained of can instead be
assessed on the basis of the common everyday experience of the trier of the
facts.
Student note: When the incompetence alleged is of a
specialized medical nature, deriving from the physician-patient relationship,
and 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.
Case: Giordano v. Scherz, NY
Slip Op 07087 (2d Dept. 2012).
Wednesday’s issue: Vacating a default and law office
failure.
