Thursday, July 7, 2016

An ineffective expert affirmation in a medical malpractice action.

Practice point:  The Appellate Division affirmed dismissal of the complaint in this action where defendant made a prima facie showing that it did not deviate from the standard of care in treating plaintiff's decedent. In support of his contention that defendants' failure to treat the decedent with the drug Eculizumab was a proximate cause of her death, plaintiff submitted an expert affirmation that fell short of establishing that Eculizumab was the standard of care for treatment of atypical hemolytic uremic syndrome (aHUS). The expert's strongest statement was that Eculizumab was "a promising new therapy for the treatment of [aHUS] [that] should have been known to her physicians and used by them."

Student note:  While the Supreme Court purportedly denied plaintiff's motion for reargument, since it addressed the merits of the motion and adhered to the original determination, the order is appealable.

Case:  Castilo v. Mt. Sinai Hosp., NY Slip Op 05074 (1st Dep't June 28, 2016)

Here is the decision.

Tomorrow's issue:  Contracts and tort liability in favor of a third-party.