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THE DEFENSE EXPERT’S AFFIRMATION IN THIS MED MAL CASE DID NOT ADDRESS ALL THE MALPRACTICE ALLEGATIONS IN THE PLEADINGS; DEFENDANTS’ SUMMARY JUDGMENT MOTON SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the defendants’ medical expert in this medical malpractice case did not address all the malpractice allegations in the pleadings:

“Medical expert affirmations that fail to address the essential factual allegations in the plaintiff’s complaint or bill of particulars fail to establish prima facie entitlement to judgment as a matter of law” … . Bare conclusory assertions that a defendant did not deviate from good and accepted medical practice, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle a defendant to summary judgment … .

Here, the affirmation of the defendants’ fetal medicine expert was insufficient to establish the absence of any departure from good and accepted medical practice by [two defendants].. The affirmation failed to eliminate triable issues of fact as to whether the plaintiff was in preterm labor … , and whether the preterm delivery could have been prevented … . Neumann v Silverstein, 2024 NY Slip Op 02712, Second Dept 5-15-24

Practice Point: In a med mal case, if the defense expert does not address all the allegations of malpractice the defense motion for summary judgment should not be granted.

 

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