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DEFENDANT DOCTOR’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILL OF PARTICULARS, RENDERING IT CONCLUSORY AND SPECULATIVE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant doctor’s (Buono’s) motion for summary judgment in this medical malpractice action should not have been granted: Buono’s expert’s affidavit did not address all the allegations in the bill of particulars, rendering it conclusory and speculative:

“To prevail on a motion for summary judgment in a medical malpractice action, a defendant must establish, prima facie, either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff’s injuries” … . “In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s bill of particulars” … . Here, Buono failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against him. The plaintiff specifically alleged in his bill of particulars, inter alia, that Buono was negligent in abandoning the plaintiff in the operating room before the procedure was completed. In support of his motion, Buono submitted an affirmation of an expert who opined that Buono did not depart from good and accepted medical practice because, “as an assistant, DR. BUONO was entitled to leave the operating room as soon as his services were no longer required.” That opinion, however, failed to address certain evidence, including medical records and deposition testimony of Brady and Buono, that raised a triable issue of fact as to whether Buono was the assistant or the surgeon performing the procedure. As such, the expert’s opinion is conclusory, speculative, and wholly insufficient to establish Buono’s prima facie entitlement to judgment as a matter of law … . The expert also failed to establish that Buono’s alleged negligence was not a proximate cause of the plaintiff’s injuries. Woehrle v Buono, 2024 NY Slip Op 05815, Second Dept 11-20-24

Practice Point: In a medical malpractice action an expert affidavit in support of a defendant’s motion for summary judgment must address all the allegations in the pleadings or it will be deemed conclusory and speculative.

Similar issue and result in Bonocore v Ravindranath, 2024 NY Slip Op 05824, First Dept 11-21-24.

 

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