In many medical malpractice cases, the defendant will seek to have the claims against it dismissed prior to trial. Even if a defendant demonstrates that it did not depart from the accepted practice of medicine, though, a plaintiff can avoid dismissal by producing evidence sufficient to refute the defendant’s assertions. The standard of review for determining whether to dismiss medical negligence claims in New York was recently discussed in a surgical malpractice case in which the court found sufficient factual disputes existed to proceed to trial. If you were hurt by the acts of a negligent surgeon, it is wise to talk to a dedicated Rochester surgical malpractice attorney to assess what evidence you must produce to demonstrate liability.
Allegedly, the defendant performed a surgical procedure on the plaintiff’s right shoulder. The plaintiff suffered complications after the surgery and ultimately needed to undergo a second procedure. He then filed a medical malpractice lawsuit against the defendant, asserting that the defendant’s negligence caused him to suffer physical and financial harm. The defendant moved to have the plaintiff’s case dismissed by summary judgment. The court denied the defendant’s motion, and the defendant appealed.
Avoiding Dismissal in Medical Malpractice Cases
In New York, a defendant doctor seeking summary judgment in a medical malpractice case has to make a prima facie showing that it did not depart from the accepted and good practice of medicine or that the plaintiff was not harmed by any alleged departure. If the defendant meets this burden, the plaintiff must then set forth evidentiary materials or facts in opposition to the defendant’s position to demonstrate the existence of an issue of fact that must be resolved via trial.
The appellate court explained that summary judgment is not suitable in a medical malpractice action where the parties produce opinions from medical experts that conflict with one another since issues regarding credibility can only be resolved by a jury. In the subject case, the appellate court noted that the defendant established the right to judgment as a matter of law by submitting an affirmation from a medical expert. In other words, the defendant’s expert report opined that the defendant’s treatment of the plaintiff did not constitute a departure from the accepted standard of care.
In response, however, the plaintiff produced an affirmation from a medical expert that stated that the defendant did deviate from the accepted practice of medicine in performing the plaintiff’s surgery. Specifically, it stated that the defendant removed an excessive amount of tissue from the plaintiff’s shoulder. As the parties produced conflicting expert opinions, the appellate court affirmed that summary judgment was not appropriate.
Speak with a Proficient Rochester Attorney
Typically, a defendant in a medical malpractice case will seek to avoid liability, and it is critical for the plaintiff to set forth sufficient evidence to avoid dismissal prior to trial. If you suffered harm because of a negligently performed surgery, the proficient Rochester surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can help you set forth compelling arguments to demonstrate that you should be awarded compensation for your injuries. You can reach us via our online form or at 585-653-7343 to schedule a meeting.