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PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION.

The Third Department determined plaintiff’s expert did not raise a question of fact in this medical malpractice action.  Plaintiff injured her shoulder when she caught a patient (Lisa Clark) who started to fall as she was being transferred from a sideboard to a physical therapy bed. The action was deemed to sound in medical malpractice:

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The gravamen of plaintiff’s claim is that initiating a slide board transfer of Clark with minimal to moderate assistance deviated from the applicable standard of care, thereby causing Clark’s fall and plaintiff’s injuries. Defendants met their initial burden of establishing entitlement to judgment as a matter of law by submitting, among other things, an expert affidavit from a physical therapist opining that utilizing a slide board transfer with minimal assistance did not deviate from the accepted standard of care and noting, based on a review of Clark’s records, that Clark had successfully completed slide board transfers with minimal or moderate assistance on prior occasions … . Thus, “the burden shifted to plaintiff to present expert medical opinion evidence that there was a deviation from the accepted standard of care” … .

In opposition, plaintiff submitted, among other things, the affidavit of an orthopedic surgeon, Matthew J. Nofziger. Even assuming that Nofziger was qualified to provide an opinion with respect to the standard of care used in the physical therapy field for the purpose of assessing the appropriateness of transfer procedures … , we find his affidavit to be insufficient to raise a triable issue of fact. Although Nofziger criticized the assessment of Clark’s physical and cognitive abilities prior to the slide board transfer, he failed to identify or define the applicable standard of care appropriate in this case, merely asserting, in a conclusory manner, that Clark required a higher level of assistance than was provided to her … . Nor did Nofziger set forth any particular actions or procedures that could have prevented Clark from falling, thereby failing to establish the requisite nexus between the alleged malpractice and plaintiff’s injury … . Therefore, even if considered, Nofziger’s affidavit was patently insufficient to raise a triable issue of fact as to whether the transfer procedure used in this case deviated from the applicable standard of care … . Webb v Albany Med. Ctr., 2017 NY Slip Op 05146, 3rd Dept 6-22-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (EVIDENCE, PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)/EXPERT OPINION (MEDICAL MALPRACTICE, LAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT IN THIS MEDICAL MALPRACTICE ACTION)

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