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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND IMPROPERLY RAISED AN ISSUE NOT DISCERNABLE FROM THE PLAINTIFF’S BILL OF PARTICULARS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice action should have been granted because the plaintiff’s expert affidavit was conclusory and speculative. The court noted that plaintiff’s expert raised an issue that was not discernable from the plaintiff’s bill of particulars and therefore should not have been considered:

…[T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation indicating that the treatment and care given to the plaintiff by the defendant on May 13, 2013, did not deviate from accepted community standards of practice, that the plaintiff’s infection, which occurred more than four months after that visit, was too remote in time to have been proximately caused by the defendant’s treatment, and that the defendant had the plaintiff’s informed consent for the procedure.

In opposition, the plaintiff submitted, inter alia, an affirmation of her expert, who opined that the defendant did not follow the good and accepted podiatric standard of care because although the defendant tested the plaintiff’s foot pulse and found it to be low, the defendant did not refer the plaintiff to a vascular surgeon. We agree with the defendant that this assertion was not readily discernable from the allegations in the plaintiff’s bill of particulars, and, thus, was a new theory of liability that should not have been considered by the Supreme Court … . Iodice v Giordano, 2019 NY Slip Op 02072, Second Dept 3-20-19

 

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