Written by Matthew Zullo
There is universal agreement in the field of personal injury that the most difficult cases to prosecute on behalf of a plaintiff is one of medical malpractice. Liability in the most common negligence cases are typically determined by fact witnesses. For example, in a case involving a motor vehicle accident a plaintiff can establish liability using independent witnesses or even with the defendant’s own testimony where the defendant violated a statute. The circumstances of the accident alone can establish liability where the defendant struck someone in the rear or failed to yield the right of way.
In the medical malpractice case, liability is not established by the outcome of the medical procedure. A bad outcome or unexpected result does not establish a departure from the standard of care. A departure from the standard of medical care must be proven with the testimony and opinions of medical experts. When relying upon opinions, the unfortunate truth is that everyone has one.
More and more, we are seeing defense attorneys in medical malpractice cases making motions for summary judgment. There are many reasons a defense lawyer asks for a case to be dismissed by the Court. The most common one is to claim that there simply is no malpractice, and the defense attorney will usually support this claim with statements from the doctors you have sued; where they swear they did not depart from the standard of care, the result was out of their control, or a known complication or risk of the procedure. They will further support this position with their own expert affirmation. Another reason a defense lawyer may make a motion for summary judgment is not to actually get the case dismissed, but so that the plaintiff’s attorney will have to lay out their case, the theory of liability, and their expert’s opinion.
To establish the liability of a physician for medical malpractice, plaintiff must prove that the physician deviated or departed from accepted community standards of practice and that such departure was the proximate cause of the plaintiff’s injuries. Berthen v. Bania, 2014 N.Y. Slip Op. 06789. A physician moving for summary judgment in a medical malpractice case must establish that there was no departure from the standard of care or that any departure was not a proximate cause of the plaintiff’s injuries. In opposing a motion for summary judgment, it is imperative that the plaintiff supply an affirmation from a medical expert that specifically addresses and counters the assertions made by the defendant’s expert. Failure to do so will result in summary judgment in favor of the defendant. In the recent case of Bertha v. Bania, the Court concluded that the plaintiff’s expert failed to address the specific assertions made by the defendant’s expert and failed to raise any triable issue of fact and dismissed the plaintiff’s complaint. In its decision, the Court stated that the plaintiff’s expert opinion must be detailed, specific, factual in nature, and not simply conclude that physician acted within the accepted standards of medical care. The affirmation must directly conflict with the opinion of the defendant’s expert in order to raise credibility issues and questions of fact which can only be resolved by a jury. Once a Judge finds questions of fact, summary judgment must be denied.
In the recent case of Derrick v. North Star Orthopedics, PLLC, 2014 N.Y. Slip Op. 06794, the defendant moved for summary judgment submitting an expert affirmation. The Court found that the plaintiff’s expert affidavit was insufficient in that it was unsigned and redacted the physician’s name. The plaintiff’s attorney did not offer any explanation for the failure to identify the expert’s name and did not tender an unredacted affidavit for the Court’s in camera review. The affirmation of a plaintiff’s expert is not deficient where the expert’s name is redacted as long as an unredacted original is offered to the court for in camera inspection. (Turi v Birk 118 AD3d 979, 2nd Department) Despite that, the Court actually considered the opinion of the plaintiff’s expert, but concluded that the opinion was not supported by the evidence.
The word of caution to all plaintiffs’ attorneys opposing a motion for summary judgment in a medical malpractice case is to make sure your expert affirmation is detailed, specifically addresses the opinion of the defendant’s expert, that the opinion is based upon the facts, not speculation, and conclusively establishes not only a departure from the standard of care but that the departure was a proximate cause of the plaintiff’s injuries. Further, there is no practical reason to withhold the name of your expert since you have to detail their qualifications and the defense attorneys will find out the name of your expert, if they don’t already know. If one does not wish to reveal the experts name, than an original unredacted affirmation must be supplied to the Court.
Opposing a motion for summary judgment in a medical malpractice case presents many pitfalls for the plaintiff’s attorney. Certainly, no one wants to be in the position of explaining to their client that their case has been dismissed because the expert’s affirmation, which you prepared, was insufficient to defeat the defendant’s motion for summary judgment.