In many medical malpractice cases, the plaintiff will assert multiple claims against the defendant. Thus, a defendant that refutes liability must address each claim via an expert affidavit, and the plaintiff must thoroughly demonstrate the flaws in the defendant’s expert’s opinion via a counter expert affidavit. In other words, it is the sufficiency of each party’s expert report that determines what claims, if any, will proceed to trial. The satisfactoriness of expert reports was the topic of a recent New York ruling in a matter in which the plaintiff brought orthopedic malpractice claims against the defendants. If you were hurt by a neglectful orthopedic surgeon, it is wise to consult a Rochester orthopedic malpractice attorney to discuss your rights.
The Plaintiff’s Care and Subsequent Claims
It is alleged that the plaintiff treated with the defendants for issues with his knee. He ultimately underwent reconstructive knee surgery, which was performed by the defendants. Following the surgery, he experienced complications, and he ultimately needed to undergo a below the knee amputation.
Reportedly, the plaintiff filed a malpractice lawsuit against the defendants, alleging medical negligence and failure to obtain informed consent claims. Following discovery, the defendants moved to have both claims dismissed via summary judgment. The court denied the defendants’ motion, after which they appealed.
Sufficiency of Expert Reports in Medical Malpractice Claims
On appeal, the court agreed that the defendants met their burden of proof as to the plaintiff’s medical negligence claims. In other words, the defendants submitted affidavits from medical experts that opined that the defendants did not depart from the standard of care in their treatment of the plaintiff and the monitoring of his care following the surgery. The court stated, though, that the plaintiff’s expert report raised triable issues of fact with respect to the defendant’s expert’s averments.
Specifically, the plaintiff’s expert affidavit squarely opposed that of the defendants. Thus, the court stated that the case presented a battle of the experts that should be posed to the jury for a resolution. The court ruled differently with regard to the plaintiff’s lack of informed consent claim, however. Specifically, the court explained that the defendants’ expert affidavit provided sound arguments that the defendants did not depart from the accepted practice of medicine. In turn, however, the plaintiff’s expert failed to demonstrate a valid factual dispute on the lack of informed consent issue. Thus, the court found that the defendants were entitled to judgment as a matter of law on that cause of action and court modified the lower court’s order accordingly.
Meet with a Trusted Rochester Attorney
In the majority of orthopedic malpractice cases, whether a plaintiff is able to recover damages hinges on the persuasiveness of the plaintiff’s expert’s opinion. If you were injured by the careless acts of an orthopedic surgeon, you may have a claim for orthopedic malpractice and should speak to an attorney. The trusted malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can advise you of your rights and help you to seek a fair result. You can contact us at 585-653-7343 or via the form online to schedule a meeting.