In most medical malpractice cases, the parties will produce expert affirmations in support of their claims or defenses. It is not sufficient to merely produce an expert affirmation, however. Rather, the affirmation’s weight and credibility will be assessed by whether it meets certain requirements. This was demonstrated in a recent case before a court in the Appellate Division of the Supreme Court of New York, in which the court affirmed the dismissal of a pediatric malpractice case due to the insufficiencies of the plaintiff’s expert affirmation. If your child suffered harm due to inadequate care provided by a pediatrician, it is prudent to consult a skilled Rochester pediatric malpractice attorney regarding what evidence you must produce to recover compensation.
It is alleged that the minor plaintiff was treated by the defendant pediatricians and at the defendant hospital in December 2017. The defendants failed to diagnose her with viral encephalitis in a timely manner, which caused her to suffer permanent impairments that required her to need care and assistance for the remainder of her life. Thus, the minor child and her parents, filed a medical malpractice lawsuit against the defendants. The defendants each filed motions for summary judgment, asking the court to dismiss the plaintiffs’ claims against them. The court granted the respective motions, and the plaintiffs appealed. Upon review, the appellate court affirmed the trial court ruling.
Sufficiency of an Expert Affidavit in a Medical Malpractice Case
In the subject case, the defendant hospital established it’s right to judgment in its favor as a matter of law through the affirmation of its expert. Specifically, the expert reviewed the hospital’s records and the depositions taken in the case and found that the hospital’s doctors’ treatment of the minor plaintiff complied with the accepted standard of care and that regardless, any departure did not cause the minor plaintiff’s harm.
In opposition, the plaintiffs produced an expert affirmation that raised a triable issue of fact as to whether the defendant hospital deviated from the standard of care, by stating that the minor plaintiff displayed symptoms that warranted further testing to determine if she had viral encephalitis. The affirmation failed, however, to raise an issue of fact as to whether the alleged deviation from the standard of care caused the minor plaintiff’s harm.
Rather, with regard to the issue of proximate cause, the affirmation was conclusory and speculative. The court noted that under New York law, expert opinions that are unsupported by facts of record, speculative, or conclusory, are insufficient to establish that a triable issue of fact exists. As such, the appellate court affirmed the trial court ruling, dismissing the claims against the defendant hospital. The court affirmed the dismissal of the plaintiffs’ claims against the defendant pediatricians as well, noting that the plaintiffs raised new theories of liability in their expert affirmation for the first time, which was impermissible.
Confer with a Skillful Medical Malpractice Attorney
If your child was injured by a negligent pediatrician, it is wise to confer with a skillful pediatric malpractice attorney to discuss what compensation you and your child may potentially be able to recover. The knowledgeable attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will zealously advocate on your behalf to help you pursue the full amount of damages available. We can be reached through our online form or at 833-200-2000 to schedule a meeting.