In surgical malpractice cases, there is a shifting burden from the defendant to the plaintiff to provide competent evidence to prove whether there is sufficient evidence to show that the defendant deviated from the accepted standard of care. In most cases, each party will produce an expert affidavit supporting his or her position. A New York appellate court recently discussed what could constitute sufficient evidence to rebut a defendant’s prima facie showing that he did not commit surgical malpractice, in a case in which the defendant sought a dismissal via summary judgment. If you were injured due to a surgical error, you should retain a capable Syracuse surgical malpractice attorney to assist you in your pursuit of compensation from your negligent care providers.
Facts Regarding the Plaintiff’s Surgery
Allegedly, the plaintiff underwent surgery to extract a stone from his left ureter. The surgery was performed by the defendant and was completed without incident. Approximately one day later, however, the plaintiff returned to the hospital with complaints of pain in his abdomen and an inability to urinate. He underwent a CT scan which revealed a perforation in his bladder. He then underwent a second surgery to repair the perforation. The plaintiff subsequently sued the defendant in a medical malpractice lawsuit. The defendant filed a motion for summary judgment, to which the plaintiff responded by filing an unsworn expert affidavit. The court subsequently denied the defendant’s motion, after which he appealed.
Elements of Proof in a Medical Malpractice Action
The elements of proof in a medical malpractice action are a deviation from the accepted standard of care, and evidence the deviation proximately caused the plaintiff’s harm. A defendant seeking the dismissal of medical malpractice claims via summary judgment must establish by prima facie evidence that he or she did not depart from the standard of care, or that the departure did not harm the plaintiff. If the defendant makes a sufficient prima facie showing, the burden then shifts to the plaintiff to show a triable issue of material fact. Further, a court should not grant summary judgment where the parties produce conflicting opinions from medical experts.
Here, although the defendant showed he was prima facie entitled to summary judgment via an affidavit by a urologist that stated he did not deviate from the standard of care, the plaintiff raised a triable issue of fact via his unsworn affidavit from a urologist. The court noted that while an unsworn affidavit did not constitute sufficient evidence to defeat the defendant’s motion for summary judgment, the defendant failed to raise that argument before the lower court, and therefore, the issue was waived. Thus, the court affirmed the trial court ruling.
Speak with a Trusted Syracuse Surgical Malpractice Attorney
If you suffered harm due to a negligent surgical error, you should speak with a trusted Syracuse surgical malpractice attorney to discuss your case and your options for pursuing damages. The skillful Syracuse surgical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers will assess the facts surrounding your harm and gather evidence to present strong arguments in favor of your recovery of compensation. We can be reached at 315-479-9000 or through the online form to set up a confidential and free meeting.