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CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this medical malpractice action had, through his expert’s affidavit, raised a question of fact whether the defendant primary care physician departed from good and accepted medical practice. Although defendant referred plaintiff to a urologist based upon an elevated PSA level (a possible sign of prostate cancer), defendant did not mention the elevated PSA level in the referral:

… [P]laintiff raised a triable issue of fact by submitting the affirmation of an expert, who opined that “[i]t is the referring physician’s duty to provide the specialist with all the necessary information to provide a comprehensive specialty consultation.” The plaintiff’s expert explained that, at the plaintiff’s initial consultation with the urologist, the plaintiff’s elevated PSA level was not addressed because Rosen failed to inform the first urologist of the plaintiff’s elevated PSA level. The plaintiff’s expert also stated that Rosen, as a primary care physician, should have ordered another PSA test eight weeks after the initial test to confirm the elevated PSA level, which would have allowed Rosen to better diagnose the plaintiff.

… The defendants’ expert’s conclusory assertion that “the existence of the plaintiff’s prostate cancer, and the course it followed, were wholly unrelated to the care administered” by [defendant] Rosen was insufficient to establish that Rosen’s alleged negligence did not proximately cause or exacerbate the plaintiff’s injuries … . Because there are conflicting expert opinions … Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Autieri v Rosen, 2025 NY Slip Op 04858, Second Dept 9-10-25

Practice Point: Conflicting expert opinions preclude summary judgment in a medical malpractice action. Conclusory statements in an expert affidavit do not raise a question of fact.​

 

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