In New York, in any case alleging medical malpractice, the burden of proof moves from the plaintiff to the defendant and then back to the plaintiff. Thus, if the defendant sets forth an expert affidavit refuting the allegations in the plaintiff’s bill of particulars, the plaintiff can only avoid a dismissal of the case by presenting his or her own affidavit stating the manner in which the defendant’s treatment constituted malpractice. In a recent case in which the plaintiff alleged the defendant failed to diagnose her promptly, the appellate division of the Supreme Court of New York discussed what evidence a plaintiff must produce to refute a defendant’s expert affidavit. If you sustained damages due to your doctor’s failure to diagnose you, you should meet with a trusted Rochester failure to diagnose malpractice attorney to discuss what evidence you need to hold your doctor accountable for your damages.
Facts of the Case
It is reported that the plaintiff alleged that the defendant failed to diagnose or treat her pneumonia, despite her symptoms, which caused her condition to worsen. She subsequently sued the defendant for medical malpractice. Following the completion of discovery, the defendant moved for summary judgment. The court granted the defendant’s motion, dismissing the case.
Sufficiency of Evidence
To set forth a prima facie case of liability in a medical malpractice case the plaintiff must show that the defendant breached the applicable standard of care and the breach caused the plaintiff’s injury. Then, the burden shifts to the defendant, who must prove that there was no departure from the standard of care or that any departure did not cause the plaintiff’s harm, which defendants typically do by setting forth an expert affidavit. The plaintiff will usually set forth its own expert report to refute the defendant’s proof. While conflicting expert opinions offered by the defendant and plaintiff may present issues of fact that must be resolved by a jury, expert opinions that are speculative or not supported by the evidence of record will not create a triable issue.
In the subject case, the court stated that the defendant set forth an expert affidavit that addressed each of the allegations in the plaintiff’s bill of particulars and opined that the defendant did not breach the standard of care. In return, the plaintiff set forth an expert report that merely concluded that the defendant breached the standard of care without citing to any facts of the record. Therefore, the court found the plaintiff’s expert report was insufficient to create an issue of fact so as to withstand summary judgment.
Retain a Skilled Failure to Diagnose Malpractice Attorney Regarding Your Case
If you sustained harm due to your doctor’s failure to promptly diagnose or treat you, it is critical to retain a trusted Rochester orthopedic malpractice attorney to help you gather any evidence you may need to prove that your doctor should be held accountable for your harm. The proficient failure to diagnose malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will assertively pursue the full extent of damages you may be owed. You can contact us at 585-653-7343 or via our form online to set up a meeting regarding your case.