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THE EXPERT AFFIDAVITS SUBMITTED BY DEFENDANT HOSPITAL IN THIS MEDICAL MALPPRACTICE ACTION WERE CONCLUSORY AND DID NOT ADDRESS ALL OF PLAINTIFF’S ALLEGATIONS; THEREFORE SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court in this medical malpractice action, determined the expert affidavits were conclusory and did not address all the allegations made by plaintiff. Therefore defendant’s (St. Luke’s) motion for summary judgment should not have been granted:

The expert nurse and expert neurologist on whose affidavits St. Luke’s relied merely averred in a conclusory manner that the decedent could not have been monitored in a way to prevent her fall, that St. Luke’s implemented every appropriate fall risk procedure before the decedent’s fall, and that the decedent’s fall and the resulting subdural hematoma were not substantial factors in causing the decedent’s death … . The expert nurse also did not submit the fall risk assessment or hospital fall prevention policy in accordance with which, she claimed, the decedent was monitored … . Because St. Luke’s did not carry its prima facie burden on its motion, Supreme Court should have denied defendant’s motion with respect to those predicates, regardless of the sufficiency of the moving papers … .

As for the remaining predicates for plaintiffs’ medical malpractice claim, St. Luke’s did not address them in its moving papers, nor did its experts address them in their affidavits. Accordingly, St. Luke’s did not establish its prima facie entitlement to summary judgment dismissing them … . Martir v St. Luke’s-Roosevelt Hosp. Ctr., 2023 NY Slip Op 04478, First Dept 8-31-23

Practice Point: To warrant summary judgment in a medical malpractice action, the expert affidavits cannot be conclusory and must address all of the relevant allegations.

 

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