In New York, a party alleging that a doctor committed medical malpractice typically must produce an expert report to establish the manner in which the doctor failed to comply with the standard of care and to link the doctor’s acts to the purported harm. Simply producing a report is not sufficient, however, if the report fails to demonstrate that there are disputed issues of fact as to whether the defendant doctor should be held liable for the plaintiff’s losses. The danger of failing to produce an adequate expert report was highlighted in a recent New York case in which the appellate court affirmed the dismissal of the plaintiff’s claims against a primary care physician. If you or a loved one suffered harm due to the negligence of your treating doctor, it is advisable to speak to a knowledgeable Rochester primary care malpractice attorney to assess what evidence you must produce to prove liability.
Facts of the Case
Allegedly, the plaintiff’s wife visited the defendant primary care physician in May 2013, complaining of a recent sudden weight loss, dry cough, and shortness of breath. The defendant ordered numerous diagnostic tests and prescribed the plaintiff antibiotics. The plaintiff’s wife visited the defendant two days later. During the second treatment session, the defendant ordered a pulmonary consultation and directed the plaintiff’s wife to follow up with him in two weeks. The plaintiff’s wife suffered a cardiac arrest the following day, however, and died three weeks later.
It is reported that the CT scan that was conducted prior to the plaintiff’s wife’s death but not reviewed until after she died indicated that she had numerous tumors on her spine, liver, and lungs that were believed to be cancerous. Thus, the plaintiff filed a medical malpractice lawsuit against the defendant for failing to recommend the plaintiff’s wife seek emergency care. The defendant ultimately filed a motion for summary judgment, which the court granted. The plaintiff then appealed.
Sufficiency of an Expert Report
Under New York law, a medical malpractice claim requires evidence that the defendant deviated from the standards of practice that are accepted in the applicable medical community and that the departure from the standard caused the plaintiff’s harm. As such, a defendant that moves for summary judgment and asks the court to dismiss the plaintiff’s claims must prove that, based on the facts of the case, either there was no breach of the standard or that any breach did not cause the harm alleged.
Once a defendant makes such a showing, the plaintiff must produce facts or materials in rebuttal of the defendant’s assertion that are sufficient to demonstrate that a factual dispute exists that must be resolved via trial. While conflicting expert opinions may raise questions that can only be decided by a judge or jury, an expert report that is conclusory or not supported by facts is inadequate to defeat a motion for summary judgment. In the subject case, the appellate court found that although the plaintiff produced an expert affirmation in opposition to the defendant’s motion, it was speculative, conclusory, and lacked a factual basis for its findings. As such, the trial court ruling was affirmed.
Meet with a Trusted Attorney in Rochester
If you were hurt or suffered the loss of a loved one because of the incompetence of a primary care physician, you should meet with an attorney to analyze what claims you may be able to pursue. The trusted Rochester primary care malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers are proficient at aiding parties injured by medical negligence in the pursuit of damages, and we will fight diligently on your behalf. We can be reached at 585-653-7343 or via the form online to set up a conference.