Thursday, February 9, 2017

An expert's affidavit in a medical malpractice action.

The Appellate affirmed dismissal, finding that the motion court properly determined that defendants made a prima facie showing that plaintiff's decedent did not sustain an intraventricular hemorrhage as a result of a fall at the hospital. In opposition, plaintiff failed to raise a triable issue of fact, as her expert never addressed the assertion by defendants' expert that there was no radiological evidence of trauma.

Practice point:  Plaintiff's expert omitted facts regarding the rise in decedent's blood pressure just before her fall, thus failing to base his opinion on all relevant record evidence; this deficiency renders the opinion insufficient.  While plaintiff's expert posited that trauma to the front or lateral aspect of the head could cause the bleeding observed, the expert failed to adduce any evidence as to what, if any, portion of decedent's head was actually struck. Accordingly, the opinion is too speculative to raise an issue of fact. Moreover, plaintiff's expert's conclusion that the location of the bleed suggested head trauma was based on hindsight reasoning — that is, the expert used the injury itself as a basis to assume that certain conditions must have existed at the time of the injury. This reasoning is insufficient to defeat summary judgment.

Case:  Montilla v. St. Luke's-Roosevelt Hosp., NY Slip Op 00717 (1st Dep't February 2, 2017)

Here is the decision.

Tomorrow's issue:   Appealing a sua sponte order.