In all but the clearest of cases, a plaintiff alleging he or she suffered harm due to medical malpractice must retain an expert who will testify as to the manner in which the defendant healthcare provider caused the plaintiff’s harm. Similarly, the defendant must produce an expert report, refuting the plaintiff’s allegations. If either party fails to produce an adequate expert report, it may adversely affect their position in the case. This was demonstrated in a recent nursing malpractice case decided by a court in the Appellate Division of the Supreme Court of New York, in which the court dismissed the plaintiff’s claims due to the speculative nature of the plaintiff’s expert report. If you or a loved one suffered harm due to negligent care provided in a nursing facility, it is in your best interest to meet with a trusted Syracuse nursing malpractice attorney who will zealously pursue an outcome in your favor.
Facts of the Case
It is reported that the plaintiff’s decedent was admitted to the defendant rehabilitation and nursing center. During his admission, he received intravenous antibiotic therapy. He ultimately fell ill and died. The plaintiff then filed a medical malpractice lawsuit against the defendant center and defendant nurse, alleging they were negligent in failing to manage the decedent’s care properly and in failing to transfer him to a hospital for treatment. After discovery was completed, the defendants filed individual motions for summary judgment. The trial court denied the defendants’ motions, and the defendants appealed. On appeal, the court reversed the trial court ruling and granted the defendants’ motions, dismissing the plaintiff’s claims.
Requirements of Expert Affirmations
It is axiomatic that in a New York medical malpractice, the plaintiff must establish that the defendant deviated from the standard of care accepted in the community in which the defendant practices and that the deviation proximately caused the plaintiff to suffer harm. If the defendant demonstrates via an expert affidavit that there is no issue of material fact as to either element, the plaintiff’s claims should be dismissed unless the plaintiff is able to establish a triable issue of fact in opposition to the defendant’s expert report.
For an expert report in opposition to a defendant’s report not to be deemed conclusory or speculative, it must address the specific assertions set forth in the defendant’s report, rely on evidence of the record, and explain the reasoning relied upon. Further, if the plaintiff’s expert opinion is contradicted by evidence of record, it will be deemed insufficient to defeat a motion for summary judgment.
In the subject case, the court found that the defendants established their right to judgment as a matter of law through their expert affidavits. In turn, however, the plaintiff’s expert affidavit relied on facts that were not supported by the record. As such, the court found the plaintiff’s expert report to be conclusory, speculative, and insufficient to defeat the defendants’ motions.
Meet with a Dedicated Medical Malpractice Attorney
If you or a loved one were injured by negligent nursing care, it is advisable to meet with a dedicated Syracuse nursing malpractice attorney to discuss what compensation you may be able to pursue. The skillful attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will work tirelessly on your behalf to help you seek the best result available under the facts of your case. We can be reached at 315-479-9000 or through our form online to set up a meeting.