Tuesday, April 22, 2014

A summary judgment motion in a medical malpractice motion.

Practice point:  On the motion, the defendant-physician must make a prima facie showing that there was no departure from good and accepted medical practice, or that the plaintiff was not injured thereby.  On such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..

Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in internal medicine and nephrology, and the other board-certified in diagnostic, interventional, and vascular radiology. The Appellate Division  agreed with the Supreme Court's determination that these affirmations consisted of conclusory and unsupported allegations, that they failed to address the salient issues concerning the defendants' alleged departures from accepted medical practice, and that they failed to respond to relevant issues raised by the defendants' experts. While one of the plaintiff's experts concluded that certain of the decedent's symptoms were consistent with nephrotoxicity resulting from the use of intravenous contrast in the procedures, both affirmations were speculative in concluding that the decedent's condition was caused by the defendants' actions in performing the second angiogram. Moreover, the plaintiff's experts failed to differentiate between and among the acts and omissions of the various defendants. Accordingly, these affirmations were insufficient to raise a triable issue of fact.

Student note: Because the cause of action to recover damages for wrongful death and the derivative cause of action were both premised on the defendants' alleged malpractice, the same conclusion applies to these causes of action.

Case:  Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.