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PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined that the medical malpractice action against defendant Dr. Dietz and his employer should have been granted because plaintiff’s expert did not raise a question of fact about whether the alleged departure from the standard of care had a causal relationship with the plaintiff’s injury. The majority concluded the expert’s affidavit was sufficient to raise a question of fact with respect a second defendant, Dr. Pedersen, but the dissent argued the affidavit with respect to Dr. Pedersen was conclusory and did not demonstrate a causal relationship:

… [P]laintiff’s expert did not opine that Dr. Dietz caused the iliac vein injury and instead opined that Dr. Dietz deviated from the standard of care by insufficiently examining or testing the iliac vein following Dr. Pedersen’s repair. Inasmuch as plaintiff’s expert did not indicate the possible results of any such examination or testing, whether those results should have prompted a different course of treatment, or how Dr. Dietz’s alleged departure from the standard of care otherwise caused plaintiff’s injury, plaintiff failed to raise an issue of fact as to causation regarding Dr. Dietz … . Dickinson v Bassett Healthcare, 2019 NY Slip Op 04610, Fourth Dept 6-7-19

 

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