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THE DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT SUFFICIENTLY ADDRESS THE ALLEGATIONS OF NEGLIGENCE IN THIS ACTION ALLEGING THE FAILURE TO CONDUCT A PROPER SUICIDE ASSESSMENT; THE FLAWS IN THE EXPERT’S AFFIDAVIT PROVIDE A USEFUL CHECKLIST FOR WHAT SHOULD HAVE BEEN ADDRESSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was seen by defendants. The description of the flaws in the expert’s affidavit reads like a checklist for the required contents of a defense expert’s affidavit in a medical malpractice action:

… [T]he defendants failed to establish, prima facie, that they did not depart from the standard of care, or that any such departure did not proximately cause Nodar’s injuries. With respect to the plaintiffs’ allegations that the defendants failed to conduct a proper suicide risk assessment during a scheduled doctor visit by Nodar, which was just weeks before Nodar attempted suicide by jumping off his roof, the defendants’ expert failed to set forth the standard of care for conducting a suicide risk assessment … . The expert’s conclusory assertion that the suicide risk assessment that was conducted on that date did not deviate from the standard of care was insufficient to refute the plaintiffs’ specific allegations of negligence … . In addition, the defendants’ expert did not address the plaintiffs’ allegation that the defendants failed to schedule or conduct a timely follow-up visit with Nodar after changing one of his antidepressant medications and adding an anti-anxiety medication, or otherwise assert that the one-month follow-up appointment that Nodar was advised to do was appropriate under the circumstances … . Moreover, the defendants’ expert failed to establish, prima facie, that any departure from the standard of care did not proximately cause Nodar’s injuries … . Nodar v Pascaretti, 2021 NY Slip Op 06695, Second Dept 12-1-21

 

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