Practice point: The elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was the proximate cause of injury. On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In order to defeat the motion, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing.
Case: Ortiz v. Wyckoff Hgts. Med. Ctr., NY Slip Op 03189 (2d Dep't April 26, 2017)
Here is the decision.
Tomorrow's issue: Establishing fraudulent inducement.