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Court Discusses Sufficiency of Expert Affidavits in New York Medical Malpractice Claims

In New York summary judgment motions in medical malpractice cases, the burden shifts from the plaintiff to the defendant and then back to the plaintiff with regards to whether the defendant should be held liable for medical malpractice. Generally, a defendant must produce an expert affidavit to support the argument that he or she did not deviate from the applicable standard of care and therefore did not commit medical malpractice. In a recent surgical malpractice case, a New York appellate court discussed whether a defendant may submit his or her own affidavit to meet the burden of establishing he or she should not be held liable.  If you were injured by surgical malpractice it is essential to engage a proficient Rochester surgical malpractice attorney to assist you in pursuing any damages you may be owed.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff underwent a bilateral reduction mammoplasty, which was performed by the defendant surgeon. She subsequently suffered serious and permanent injuries, which she alleged was caused by negligent care during and after her surgery. As such, she filed a surgical malpractice lawsuit against the defendant. The defendant filed a motion for summary judgment, attaching his own affidavit in support of the contention that he was entitled to judgment in his favor as a matter of law. The trial court granted his motion, and the plaintiff appealed.

Sufficiency of Expert Affidavit

To establish a prima facie entitlement to summary judgment, a defendant in a surgical malpractice case must provide factual proof that he or she complied with the appropriate standard of care, in rebuttal to the plaintiff’s malpractice claims. Factual proof can consist of deposition testimony, medical records, and affidavits. A defendant can submit his or her own affidavit to meet the burden of proof, but the affidavit must be specific, detailed, and factual in nature. Further, it must address each of the specific factual allegations raised by the plaintiff in his or her bill of particulars.

Thus, in the subject case, the court rejected the plaintiff’s argument that the defendant could not rely on his own affidavit in support of his motion for summary judgment. Rather, the court found that the defendant, who was a board-certified plastic surgeon, was qualified to offer an opinion on appropriate post-surgical wound care. Further, the court found that the plaintiff failed to raise a triable issue of fact in opposition to the defendant’s motion. Specifically, the plaintiff’s affidavit, which was provided by a registered nurse, failed to establish that the nurse had the required skill and training to provide a reliable opinion. As such, the court affirmed the trial court ruling.

Consult a Skillful Rochester Surgical Malpractice Attorney Regarding Your Potential Claims

People undergo surgery with the expectation that it will improve their health, but if a surgeon does not comply with the appropriate standard of care it can cause significant harm. If you were injured by a negligent surgeon you should consult a skillful Rochester surgical malpractice attorney regarding your potential claims and what compensation you may be able to recover. The knowledgeable surgical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will develop compelling arguments on your behalf to help you seek a favorable outcome. We can be contacted through the form online or at 833-200-2000 to schedule a consultation regarding your case.


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