Medical malpractice cases largely hinge on the sufficiency and persuasiveness of the expert reports submitted by either party. If the defendant does not have a compelling expert report, he or she may be found liable as a matter of law, whereas if the plaintiff lacks a strong report, his or her case may be dismissed via a motion for summary judgment. In a neurosurgery malpractice case recently decided by a New York appellate court, the court analyzed what constitutes a report sufficient to withstand dismissal via summary judgment. If you were injured by an improperly performed neurological surgery, it is prudent to consult a capable Syracuse neurosurgery malpractice attorney regarding your harm and what compensation you may be owed.
Facts Regarding the Plaintiff’s Treatment
It is alleged that the plaintiff was involved in a motorcycle accident, after which he developed extreme back pain. He underwent conservative treatment measures, which failed, after which he presented to the defendant neurosurgeon. The defendant diagnosed the plaintiff with spondylolisthesis at the L5-S1 vertebrae, and degenerative disc disease at the L4-L5 vertebrae and recommended surgery. The plaintiff sought a second opinion but ultimately underwent surgery.
It is reported that during the surgical procedure, the defendant removed the damaged discs, decompressed the plaintiff’s nerves, and fixated the spine. After the surgery, the plaintiff experienced severe back pain and discomfort in his left leg, which he stated was different than the pain he experienced before the surgery. He subsequently filed a malpractice lawsuit against the defendant. The defendant and the plaintiff both filed motions for summary judgment. The court granted the defendant’s motion, and the plaintiff appealed.
Sufficiency of a Plaintiff’s Expert Report
On appeal, the plaintiff did not dispute that the defendant did not make a prima facie showing that he was entitled to summary judgment. Rather, the plaintiff argued that the expert report he submitted to rebut the defendant’s motion for summary judgment was sufficient to raise a question of fact regarding whether the defendant deviated from the standard of care by improperly fixating the plaintiff’s joints.
For a plaintiff to rebut the defendant’s prima facie showing that he or she is entitled to summary judgment, the plaintiff must submit evidence that could establish that the defendant deviated from the accepted practice and that the deviation caused the plaintiff’s harm. In the subject case, the plaintiff submitted an expert report stating that the defendant improperly positioned screws in the plaintiff’s spine during the surgery, which was a departure from the accepted practice and caused the plaintiff to develop spinal stenosis.
The court noted that while the plaintiff’s expert report was unartfully drafted when viewed in a light most favorable to the plaintiff, it was sufficient to raise a question of fact as to whether the defendant improperly positioned the screws. Thus, the court found that because there was a triable issue of fact, the trial court erred in dismissing the plaintiff’s case.
Meet with a Skillful Neurosurgery Malpractice Attorney
Neurological surgeries are complicated, and if they are not performed properly, it can cause substantial and permanent harm. If you were injured by an improperly performed neurosurgery, you should meet with a skillful Syracuse neurosurgery malpractice attorney to discuss your case. The proficient surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will work tirelessly to help you seek any compensation you may be able to recover. We can be contacted at 315-479-9000 or via our form online to set up a free and confidential meeting.