You are here: / / CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE...
, ,

CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION; DEFENDANT, IN ITS MOTION FOR SUMMARY JUDGMENT, DID NOT DEMONSTRATE ENTITLEMENT TO SUMMARY JUDGMENT ON PROXIMATE CAUSE; THEREFORE PLAINTIFF, IN OPPOSITION, WAS NOT REQUIRED TO RAISE A QUESTION OF FACT ON THAT ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Plaintiff’s decedent was diagnosed with a degenerative spine but died hours later of a heart attack:

To prevail on a motion for summary judgment in a medical malpractice action, the defendant has the initial burden of establishing either that there was no departure from accepted community standards of practice or that any alleged departure was not a proximate cause of the plaintiff’s injuries … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … . “Once a defendant makes a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact’ as to the elements on which the defendant met the prima facie burden” … . “‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions'” … . * * *

… [T]he plaintiff raised triable issues of fact by submitting the affirmation of an expert who opined, based upon his review of, inter alia, the decedent’s medical records, among other things, that the decedent exhibited symptoms consistent with a myocardial infarction when he presented to the hospital emergency department, as well as a large scar from a prior cardiac surgery, and that the defendants departed from the accepted standard of medical care by failing to perform a cardiac workup on the decedent at that time … . Contrary to the defendants’ contention, the opinions of the plaintiff’s expert were not vague or conclusory … . Moreover, the plaintiff was not required to raise a triable issue of fact as to the element of proximate cause, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law as to that element … . Kielb v Bascara, 2023 NY Slip Op 03226, Second Dept 6-14-23

Practice Point: In opposition to a defense motion for summary judgment in a medical malpractice action, plaintiff need not address issues on which defendant did not make out a prima facie case. Here defendant did not make out a prima facie case on the issue of proximate cause and plaintiff, therefore, did not need to address that issue in opposition.

Similar issues and result in Lopresti v Alzoobaee, 2023 NY Slip Op 03228, Second Dept 6-14-23 (failure to diagnose testicular cancer; inadequate attempt to address proximate cause by submitting an expert affidavit with reply papers).

 

You might also like
Lateness Not a Barrier to Motion to Amend Pleadings/Addition of Wrongful Death Cause of Action Allowed; No Prejudice to Defendant
SUSPENDED ATTORNEY ENTITLED TO QUANTUM MERUIT COMPENSATION FOR WORK DONE PRIOR TO THE SUSPENSION (SECOND DEPT).
DISMISSAL OF THE ACTION SEEKING OVERTIME PAY IN FEDERAL COURT ON THE GROUND NO NOTICE OF CLAIM WAS FILED DID NOT PRECLUDE, PURSUANT TO THE DOCTRINE OF RES JUDICATA, AN ACTION IN SUPREME COURT SEEKING PERMISSION TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).
Purported Lack of Standing Is Not a Jurisdictional Defect/Sua Sponte Dismissal of Complaint Reversed
IN HIS MOTION TO WITHDRAW HIS PLEA TO CRIMINAL POSSESSION OF WEAPONS, DEFENDANT CLAIMED HE DID NOT KNOW THE WEAPONS, WHICH BELONGED TO SOMEONE ELSE, WERE STORED AT HIS MOTHER’S HOUSE, WHERE HE DID NOT RESIDE; THIS CLAIM OF INNOCENCE (POSSESSION WAS NOT “VOLUNTARY”) WAS SUFFICIENTLY SUPPORTED TO WARRANT A HEARING ON THE MOTION TO WITHDRAW THE PLEA (SECOND DEPT).
REVIEW OF PLAINTIFF’S WORK POSTED ON YELP WAS OPINION, NOT ACTIONABLE LIBEL.
Out of State Visitation for All School Breaks and Three-Day Weekends (In Addition To Summers) Should Not Have Been Granted
THE CITY DID NOT DEMONSTRATE THE ABSENCE OF A LEFT TURN TRAFFIC SIGNAL WAS BASED ON A STUDY FINDING THE SIGNAL WAS NOT WARRANTED; THEREFORE THE CITY DID NOT DEMONSTRATE IT WAS ENTITLED TO IMMUNITY IN THIS HIGHWAY-PLANNING ACTION BY A PEDESTRIAN WHO WAS STRUCK BY A VEHICLE MAKING A LEFT TURN (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT PROPERTY OWNER DID NOT PROVE WHEN THE AREA WHERE PLAINTIFF SLIPPED... DEFENDANT PEDIATRIC PRACTICE SUBMITTED EXPERT EVIDENCE PLAINTIFF’S ADOLESCENT...