In all but the clearest of cases, what constitutes medical malpractice is generally not readily understood by the average juror. As such, medical malpractice cases typically hinge on expert testimony. Plaintiffs that fail to produce expert testimony, then, will likely have their cases dismissed, as they will be unable to demonstrate a breach of the standard of care. This was demonstrated in a recent New York opinion, in which the court dismissed a pro se plaintiff’s surgical malpractice claims via summary judgment, due to her failure to produce an expert affidavit. If you were harmed by a negligent surgeon, you could be owed compensation, and it is advisable to meet with a trusted Rochester medical malpractice lawyer to evaluate your situation.
The Plaintiff’s Alleged Harm
Allegedly, the plaintiff underwent a surgical procedure that was performed by the defendant, in which fat was transferred from her back, arms, and abdomen into other parts of her body. Following the procedure, she suffered pain in her right hip and bleeding. Additionally, she believed that pictures were taken of her when she was unconscious during the procedure. She subsequently filed a lawsuit against the defendant, alleging medical malpractice claims. After discovery was completed, the defendant moved for dismissal of the plaintiff’s claims by way of summary judgment. Upon reviewing the evidence presented, the court granted the defendant’s motion.
Proving Medical Negligence Under New York Law
The court explained that, in order to prove a medical malpractice claim in New York, a plaintiff must show that the defendant breached the standard of care accepted in the community and that the breach was the proximate cause of the plaintiff’s harm. Thus, if a defendant demonstrates that it did not depart from the standard of care or that any departure from the standard of care did not cause the plaintiff’s injuries, the defendant will be prima facie entitled to summary judgment.
In order to counter a defendant’s prima facie case, a plaintiff in a medical malpractice action must present testimony from a medical expert to support the allegations asserted. Additionally, the expert must address each element of the malpractice claim in his or her opinion. In the subject case, the plaintiff merely asserted that the defendant “botched” her surgery without indicating how the defendant’s actions fell below the standard of care. The defendant produced an expert affidavit opining that he complied with the standard, however, and that any deviation did not cause the plaintiff’s harm. In response, the plaintiff failed to provide any expert testimony. Thus, the court granted the defendant’s motion, dismissing her claims.
Meet with an Experienced Malpractice Attorney in Rochester
Most procedures come with some degree of risk, but some harm caused by surgery falls outside of the known risks and is the result of medical malpractice. If you were injured by surgical malpractice you should meet with a lawyer to assess your potential claims. The experienced Rochester medical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers can advise you of your rights and help you pursue any damages recoverable. You can reach us via our form online or at 585-653-7343 to set up a conference.