Practice point: On the motion to dismiss, a defendant must make a prima facie showing that there was no departure from good and accepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby. Upon such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing so as to demonstrate the existence of a triable issue of fact.
Student note: General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat the motion.
Case: Bezerman v. Baline, NY Slip Op 03971 (2d Dept. 2012).
Tomorrow’s issue: The 90-day notice.