Thursday, September 11, 2014

Documents in the electronic record in a medical malpractice action.

Practice point:  The Appellate Division affirmed the Supreme Court's determination that the moving defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. The defendants' medical experts did not examine the plaintiff's decedent but relied on medical reports and medical records that were not annexed to the motion. Although the defendants contend that they provided the Supreme Court with a CD-R containing the medical records relied upon by their experts, there is no evidence that the CD-R provided to the court properly contained the certified medical records, or was even readable by the court, pursuant to CPLR 2214[c]. Moreover, even if a readable CD-R were submitted on an earlier motion, the court is not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record in considering subsequent motions.

Student note:  A physician moving for summary judgment dismissing a malpractice complaint must establish, prima facie, either that there was no departure from accept standards of practice, or that any alleged departure was not a proximate cause of the plaintiff's injuries. The burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only upon the defendant's meeting the initial burden, and only as to the elements on which the defendant met the prima facie burden.

Case:  Garrison v. Quirk, NY Slip Op 05947 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Time limits on renewal of a judgment lien.