DIAZ v. ROSE, M.D.


40 A.D.3d 429 (2007)

837 N.Y.S.2d 28

VALENTINO DIAZ, as Executor of JEANETTE CAMMALLERI, Deceased, Respondent, v. LOUIS C. ROSE, M.D., et al., Defendants, and NEW YORK WESTCHESTER SQUARE MEDICAL CENTER et al., Appellants.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 22, 2007.


Plaintiff's submissions failed to establish that the foreign body constituted crucial evidence, since she offered no medical evidence supporting her claim that her infection was caused by a foreign body rather than, for example, a bacterium; in consequence, the physical object would not be enough to establish plaintiff's malpractice claim. Moreover, not only was defendant's disposal of the foreign body neither intentional nor negligent, but there was no indication that it...

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