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EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition:

… [P]laintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff’s GBS “diminished [her] chance of a better outcome” … . Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert “states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever” … , and, in this case, … the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome … .

From the dissent:

… [T]his appeal implicates the “loss of chance” theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an “omission” theory of negligence … . In such cases, proximate cause is not analyzed under the ordinary “substantial factor” approach … , but rather according to whether the alleged delay in diagnosis diminished the plaintiff’s “chance of a better outcome or increased the injury” … . Although I have expressed concern “that a loss of chance concept reduces a plaintiff’s burden of proof on the element of proximate cause” … this Court has nonetheless adopted that causation standard in this type of medical malpractice action. Simko v Rochester Gen. Hosp., 2021 NY Slip Op 06470, Fourth Dept 11-19-21

 

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