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PLAINTIFF’S EXPERT AFFIDAVIT DID NOT ADDRESS ONE CAUSE OF ACTION IN THIS MEDICAL MALPRACTICE CASE; THEREFORE THAT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the cause of action alleging defendant doctor caused the bowel perforation should have been dismissed because plaintiff’s expert’s affidavit did not address it:

The affidavit of plaintiff’s expert addressed defendant’s conduct only with respect to the claims that he failed to diagnose and treat the bowel perforation intraoperatively and failed to timely and properly treat the bowel perforation postoperatively. Plaintiff’s expert acknowledged that bowel perforation is a known complication from this type of surgery. Thus, plaintiff failed to raise a triable issue of fact with respect to the claims that defendant negligently caused the bowel perforation … . We therefore conclude that the court erred in denying defendant’s motion with respect to those claims, and we modify the order accordingly. Bristol v Bunn, 2020 NY Slip Op 07773, Fourth Dept 12-23-20

 

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