In the vast majority of medical malpractice cases, a plaintiff will need an expert to prove that the treatment provided by the defendant deviated from the standard of care. It is especially important to provide an expert affirmation in cases where the defendant has retained an expert.
When a plaintiff does not retain an expert it can result in the dismissal of the case, as illustrated in a recent case decided by The Supreme Court of New York, Appellate Division. If you suffered harm due to negligent medical care, it is essential to retain a capable Syracuse medical malpractice attorney who will work diligently to help you develop a strong case in favor of your recovery, and will retain an expert if it is necessary.
Factual and Procedural Background
Reportedly, the plaintiff treated the defendant for an ear infection. She subsequently filed a medical malpractice lawsuit against the defendant, alleging that the defendant’s improper instructions regarding prescription administration and an inappropriate prescription caused her to suffer hearing loss, tinnitus, and perforation of the tympanic membrane. The defendant filed a motion for summary judgment, which the court granted. The plaintiff then filed a motion for leave to amend her opposition to the defendant’s motion, which the court denied. The plaintiff appealed.
The Failure to Provide an Expert Affirmation is Fatal to a Plaintiff’s Claim
On appeal, the court affirmed the trial court ruling. The court held that the defendant met his burden of establishing a prima face case that he was entitled to judgment in his favor as a matter of law. Specifically, the defendant produced an affirmation from his expert, who was an otolaryngologist, who opined that the treatment prescribed by the defendant was in compliance with the accepted standard of care. Moreover, the expert stated that any departure from the standard of care was not the cause of the plaintiff’s alleged injury.
The plaintiff did not respond to the defendant’s expert’s affirmation with an expert affirmation of her own in rebuttal. The court stated that the plaintiff was required to raise a triable issue of fact in response to the defendant’s prima facie showing. Specifically, the court stated that the plaintiff was required to produce materials or evidentiary facts to refute the defendant’s expert affirmation. The court noted that merely setting forth general allegations of medical malpractice was insufficient. Rather, the plaintiff was required to produce some statement of medical expertise. As the plaintiff failed to do so, the court affirmed the judgment in favor of the defendant. Further, the court found that the plaintiff did not meet her burden of showing new law or facts to demonstrate that the court should grant her motion for leave to renew her opposition to the defendant’s motion.
Retain a Trusted Syracuse Medical Malpractice Attorney
If you received inadequate medical treatment, you should consult a seasoned Syracuse medical malpractice attorney to discuss the facts of your case and your options for pursuing compensation. At DeFrancisco & Falgiatano, our skillful medical malpractice attorneys will work tirelessly on your behalf to help you pursue the full extent of any damages you may be owed. We can be reached at 315-479-9000 or through our form online to set up a free and confidential meeting.
More Blog Posts:
Court Analyzes Notice to Public Corporation Required to Pursue Medical Malpractice Claims Under New York Law, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, January 21, 2019