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IN THIS MEDIDCAL MALPRACTICE ACTION, THE HOSPITAL-DEFENDANTS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS ALL OF THE MALPRACTICE ALLEGATIONS AND OFFERED CONSLUSORY ASSERTIONS; THEREFORE THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital’s (Lutheran’s) expert affidavit did not address all of plaintiff’s allegations of Dr. Barabe’s medical malpractice and therefore the hospital should not have been awarded summary judgment:

… [T]he Lutheran defendants’ submissions were insufficient to establish Barabe’s prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him. The opinion of their expert with respect to the absence of a departure from the accepted standard of care failed, among other things, to address the plaintiffs’ allegation that Barabe departed from the accepted standard of care in failing to order necessary diagnostic tests … . In addition, the expert did not specify the accepted standard of medical care applicable to Barabe and failed to explain how Barabe did not depart from that standard … . Moreover, the expert proffered only the most conclusory assertions regarding the absence of a causal link between Barabe’s alleged departures and the injuries sustained by the decedent … . Ojeda v Barabe, 2022 NY Slip Op 00870, Second Dept 2-9-22

 

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