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SHIFTING BURDENS OF PROOF AT THE SUMMARY JUDGMENT STAGE IN MEDICAL MALPRACTICE ACTIONS CLARIFIED; PRECEDENT TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED; PLAINTIFF’S FAILURE TO ADDRESS THEORIES OF LIABILITY REFUTED BY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CONSTITUTED AN ABANDONMENT OF THOSE THEORIES (FOURTH DEPT).

The Fourth Department, reversing and modifying Supreme Court in three related appeals, clarified the respective burdens to be met at the summary judgment stage in a medical malpractice action. Applying those burdens, the Fourth Department found that summary judgment should have been awarded to the defendants in two of the three appeals. The court noted that plaintiff’s failure to address certain theories of liability refuted in defendant’s motion for summary judgment constituted abandonment of those theories. The facts are too complex to fairly summarize here. With respect to the burdens of proof, the court explained:

We note at the outset that the facts of this case provide the opportunity for this Court to review the appropriate standard for burden-shifting in medical malpractice cases. It is well settled that a defendant moving for summary judgment in a medical malpractice action ” has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” (O’Shea v Buffalo Med. Group, P.C., 64 AD3d 1140, 1140 [4th Dept 2009] … ). As stated in O’Shea, once a defendant meets that prima facie burden, “[t]he burden then shift[s] to [the] plaintiff[] to raise triable issues of fact by submitting a physician’s affidavit both attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury” … .

Upon review, we conclude that the burden that O’Shea places on a plaintiff opposing a summary judgment motion with respect to a medical malpractice claim is inconsistent with the law applicable to summary judgment motions in general … . We therefore conclude that, when a defendant moves for summary judgment dismissing a medical malpractice claim, “[t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only after the defendant physician meets the initial burden . . . , and only as to the elements on which the defendant met the prima facie burden” … . To the extent that O’Shea and its progeny state otherwise, those cases should no longer be followed. Bubar v Brodman, 2019 NY Slip Op 08294, Fourth Dept 11-15-19

 

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