You are here: / / PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF...
, ,

PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s expert’s affidavit did not raise a question of fact:

… [P]laintiff alleges that due to defendants’ negligence in diagnosing a skull fracture during an emergency room visit …, he sustained permanent and disabling neurological damage. …

Defendants’ expert opined that defendants did not depart from good and accepted practice by not ordering a CT head scan based on plaintiff’s initial clinical presentation in the emergency room. Defendants’ expert opined that plaintiff did not meet any of the criteria of the Canadian CT Head Rule (CCHR) used in the emergency room setting to determine which head injuries warrant CT imaging.  [P]laintiff did not exhibit any neurological deficits, such as loss of consciousness, vomiting, headaches, or dizziness, and he was alert and mobile.

In opposition, plaintiff submitted a conclusory affirmation that failed to specifically address the criteria relied upon by defendants’ expert in opining that plaintiff’s presentation did not warrant further investigation of a possible skull fracture.

Rather, without support from the medical record, plaintiff’s expert opined that the injury occurred in the pterion region of the skull, and, moreover, defendants negligently failed to elicit the “mechanism” of injury, i.e., that plaintiff was stabbed, which, when taken together with the location of the wound, would have indicated a likelihood that plaintiff had sustained a skull fracture. Plaintiff’s expert further opined, without elaboration, that plaintiff must have had evidence of injury during his initial ER visit since he was diagnosed with a days-old skull fracture less than a week later, and therefore defendants’ examination of him was cursory and deficient. These opinions, which rely on hindsight and are both speculative and conclusory, are insufficient to raise a triable issue of fact … . Cruz v New York City Health & Hosps. Corp., 2020 NY Slip Op 06946, First Dept 11-24-20

 

You might also like
MOTION TO SUPPRESS SHOULD NOT HAVE BEEN DENIED ON THE GROUND THAT DEFENDANT LACKED STANDING, OTHER GROUNDS FOR SUPPRESSION NOT RAISED BELOW COULD NOT BE CONSIDERED ON APPEAL, DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CROSS-EXAMINING A POLICE OFFICER ABOUT A CIVIL SUIT AGAINST HIM (FIRST DEPT).
PLAINTIFFS RAISED QUESTIONS OF FACT (1) WHETHER THE POLICE ACTED IN RECKLESS DISREGARD OF THE SAFETY OF OTHERS DURING A HIGH-SPEED CHASE AND IN FAILING TO NOTIFY THE DISPATCHER OF THE CHASE, AND (2) WHETHER THE CHASE WAS A PROXIMATE OR CONCURRENT CAUSE OF PLAINTFFS’ ACCIDENT (THERE WAS NO CONTACT WITH EITHER VEHICLE INVOLVED IN THE CHASE) (FIRST DEPT).
COMPLAINT ALLEGING THE NEW YORK CITY PUBLIC SCHOOL SYSTEM DISCRIMINATES AGAINST STUDENTS OF COLOR AND SEEKING INJUNCTIVE RELIEF SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​
SIGNED WRITTEN WAIVER OF APPEAL DID NOT REMEDY THE INADEQUATE ORAL COLLOQUY.
16-Ounce “Portion Cap Rule” for Sugary Drinks Invalid
PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).
Insurer Must Demonstrate Compliance with 30-Day Notice Requirement Re: an Independent Medical Examination (IME)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF FELL FROM A SCAFFOLD AFTER TOUCHING A LIVE ELECTRIC WIRE; FAILURE... THE DRY BUT ALLEGEDLY SLIPPERY FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL...