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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT ADDRESS DEFENDANT’S EXPERT’S OPINION THAT NERVE DAMAGE WAS NOT THE RESULT OF DEVIATION FROM THE STANDARD OF CARE; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit did not raise a question of fact in this medical malpractice case:

Although plaintiff submitted a physician’s affidavit in opposition to defendant’s motion, “[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician’s summary judgment motion” … . Where “the expert’s ultimate assertions are . . . unsupported by any evidentiary foundation, . . . [his or her] opinion should be given no probative force and is insufficient to withstand summary judgment” … . Here, plaintiff’s expert did not rebut the opinion in defendant’s affidavit that defendant’s surgical technique was appropriate to the situation in light of the fact that decedent’s lung was adherent to the heart, nor did plaintiff’s expert rebut defendant’s opinion that any possible phrenic nerve damage was the result of stretching caused by traction sutures and did not constitute a deviation from the standard of care. Campbell v Bell-Thomson, 2020 NY Slip Op 07807, Fourth Dept 12-23-20

 

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