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Court Discusses Sufficiency of Expert Affirmation in New York Podiatry Malpractice Case

When people think of a malpractice case, they often think of cases involving high-risk procedures, but malpractice can and does occur in any practice area, including seemingly low-risk areas such as podiatry. Regardless of the nature of the underlying treatment, if a doctor’s care causes harm it is essential to set forth the allegations and evidence needed to prove the doctor should be held liable, otherwise you may lose the right to recover. The grave consequences of the failure to offer an adequate expert report were illustrated in a recent New York appellate court case, in which the court dismissed the plaintiff’s podiatry malpractice case due to the insufficiency of her expert report. If you sustained injuries due to negligent podiatric care, it is vital to engage a skillful Rochester podiatry malpractice attorney to help you seek compensation.

The Plaintiff’s Medical Treatment

Reportedly, the plaintiff treated with the defendant podiatrist on one occasion. During the visit, the defendant podiatrist diagnosed the plaintiff with a hammertoe and a corn on the second toe of the left foot and performed an aseptic debridement of the corn to alleviate pain. The defendant podiatrist did not prescribe the plaintiff any medication and did not provide the plaintiff with any other treatment. The plaintiff continued to treat with the defendant independent contractor, however, who worked for the defendant podiatrist.

It is alleged that five months after her debridement the plaintiff presented to the defendant independent contractor with signs of infection. She was referred to the hospital for the infection but left against medical advice. One week later the plaintiff returned to the hospital, where she underwent a partial amputation of the second left toe. The plaintiff subsequently filed a medical malpractice lawsuit against the defendants. The defendant podiatrist filed a motion for summary judgment, which the court dismissed, after which the defendant appealed.

Sufficiency of Plaintiff’s Expert Affirmation

On appeal, the court reversed the trial court order and granted the defendant podiatrist’s motion for summary judgment. The court found that the defendant podiatrist set forth a prima facie case that he was entitled to judgment as a matter of law through his expert affirmation which stated that the care he provided the plaintiff during their sole treatment encounter did not depart from the standards of practice accepted in the community and that her subsequent harm was too remote from the treatment. The court noted that plaintiff’s expert affirmation, which she submitted in response to the defendant’s affirmation, was insufficient to raise a triable issue for several reasons.

First, the court noted that the plaintiff’s expert report set forth a new theory of liability that was not discernable from the allegations in the plaintiff’s bill of particulars. Thus, the court held the plaintiff’s affirmation asserted a new theory of liability that should not have been considered by the trial court. Further, the plaintiff’s expert affirmation simply offered speculative and conclusory statements and did not respond to the specific opinions set forth by the defendant’s expert. Accordingly, the court found that the trial court erred in denying the defendant’s motion for summary judgment

Meet with a Skilled Rochester Podiatry Malpractice Attorney Regarding Your Case

If a podiatrist’s patient is not provided appropriate care it may result in infections and in some cases, the loss of a toe. If you suffered harm due to negligent care provided by a podiatrist in Rochester you should meet with a skilled Rochester podiatry malpractice attorney to discuss your case and what damages you may be able to recover. The experienced podiatry malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers will provide you with aggressive representation to help you seek the full extent of compensation you may be owed. You can reach us at 833-200-2000 or through the online form to set up a confidential and free meeting to discuss your case.


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