In any medical malpractice case filed in New York, the plaintiff must set forth a bill of particulars establishing the manner in which the defendant’s care caused the plaintiff’s harm. In turn, if the defendant rebuts the specific allegations in the plaintiff’s bill of particulars, thereby sufficiently showing that he or she did not cause the plaintiff’s harm, the plaintiff’s claims against the defendant may be dismissed. The plaintiff can avoid dismissal, however, by demonstrating that there are factual issues that need to be resolved via trial. Recently, the Supreme Court, Appellate Division, Second Department, New York, discussed what constitutes sufficient evidence of an issue of fact to withstand a dismissal in a case in which the plaintiff alleged he was harmed by neurology malpractice. If you sustained damages due to negligent care provided by a neurologist, it is critical to engage a Syracuse neurology malpractice attorney who will fight diligently on your behalf.
Facts Regarding the Plaintiff’s Treatment and Procedural History
It is reported that the plaintiff suffered a fistula of a spinal artery, after which he was admitted to the defendant hospital, where he underwent diagnostic testing. Following the test, he experienced weakness in his left leg. He then underwent a surgical procedure to repair the fistula. The plaintiff ultimately filed a medical malpractice lawsuit against the practitioners who performed the diagnostic test and surgery and the hospital, arguing that the procedures were performed negligently, causing him to suffer neurological harm.
It is alleged that the plaintiff set forth a bill of particulars with broad allegations regarding the negligent acts and omissions of the hospital and physicians, and alleged that as a result of their malpractice he suffered neurological damages, which affected the function of his legs, bowel, and bladder. The plaintiff discontinued the action against the individual defendants, leaving only his claims against the hospital. The hospital then filed a motion for summary judgment, which the trial court granted. The plaintiff appealed.
Evidence Evaluated in Ruling on a Defendant’s Motion for Summary Judgment
On appeal, the court explained that a defendant seeking dismissal via summary judgment has the burden of proving either the lack of a deviation from the standard of care or that the plaintiff was not harmed by any alleged deviation. In order to do so, the defendant must address the specific allegations set forth in the plaintiff’s bill of particulars. In the subject case, the court found that the hospital sufficiently addressed each of the allegations the plaintiff set forth.
In turn, however, the plaintiff did not demonstrate that a triable issue of fact existed. Instead, in response to the hospital’s motion for summary judgment, the plaintiff set forth new allegations regarding the hospital’s purported negligence. The court stated this was patently improper, explaining that a plaintiff cannot raise a materially different theory of recovery than those set forth in the complaint or bill of particulars in response to a motion for summary judgment. As such, the appellate court affirmed the trial court ruling.
Speak with a Trusted Malpractice Attorney
If you were injured due to incompetent care provided by a neurologist, it is wise to speak with a trusted Syracuse neurology malpractice attorney regarding your potential claims. The zealous attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers have the skills and experience needed to provide you with a strong chance of a favorable result in consideration of the facts surrounding your harm. You can contact us at 833-200-2000 or via our form online to schedule a consultation.