PLAINTIFF’S EXPERT AFFIDAVIT WAS SPECULATIVE AND WAS NOT SUPPORTED BY MEDICAL RECORDS; DEFENDANT PODIATRIST’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD HAVE BEEN GRANTED; EXTENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, over an extensive dissent, determined plaintiff’s expert affidavit in this medical malpractice case did not raise a question of fact. Plaintiff’s decedent presented with burns on his foot which were treated by defendant podiatrist, Papathomas. When the wound didn’t heal, defendant podiatrist referred plaintiff’s decedent to a wound clinic, which continued the same treatment given by defendant podiatrist until an infection was later detected:

The [plaintiff’s] expert relied upon certain photographs of the decedent’s foot, which were taken by the decedent’s daughter … and which allegedly showed signs that the wound was a third-degree burn, and not a second-degree burn as diagnosed by Papathomas … . According to the plaintiff’s expert, the failure to undertake “aggressive procedures,” including debridement of necrotic tissue as seen in the photographs, “predisposed” the decedent to a wound infection, which ultimately led to the partial amputation of his right foot, the stress of which caused the decedent to suffer a heart attack and die. …

… [I]t is undisputed that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affirmation of a board-certified podiatrist, who opined within a reasonable degree of podiatric certainty that the care Papathomas rendered to the decedent was in accordance with good and accepted practice, and did not proximately cause or contribute to any injuries … . * * *

… [S]ince the opinion of the plaintiff’s expert is entirely speculative and unsupported by the decedent’s medical records, the expert’s affidavit was insufficient to raise a triable issue of fact. Specifically, the decedent’s medical records establish that … after Papathomas observed that the decedent’s wound had not improved, Papathomas referred the decedent to a wound care clinic. … [At the wound clinic] the decedent received the same course of treatment prescribed by Papathomas. Moreover, the decedent’s medical records from his admissions to Plainview Hospital … contain no causal connection between the amputation of the decedent’s foot and his subsequent death, and the care the decedent received from Papathomas. Templeton v Papathomas, 2022 NY Slip Op 05228, Second Dept 9-21-22

Practice Point: Here in this medical malpractice case, plaintiff’s expert’s affidavit was speculative and was not supported by the medical records. The affidavit, therefore, did not raise a question of fact.