December 11, 2019

The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) stated in its Memorandum And Order dated November 15, 2019 in a New York medical malpractice case: “we conclude that the burden that O’Shea places on a plaintiff opposing a summary judgment motion with respect to a medical malpractice claim is inconsistent with the law applicable to summary judgment motions in general … We therefore conclude that, when a defendant moves for summary judgment dismissing a medical malpractice claim, “[t]he burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only after the defendant physician meets the initial burden . . . , and only as to the elements on which the defendant met the prima facie burden” … To the extent that O’Shea and its progeny state otherwise, those cases should no longer be followed.”

In O’Shea, the appellate court held “once a defendant meets that prima facie burden, “[t]he burden then shift[s] to [the] plaintiff[] to raise triable issues of fact by submitting a physician’s affidavit both attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury.”

In the New York medical malpractice case it was deciding, the New York Appellate Court stated, in part, “With respect to the claims regarding decedent’s anticoagulation therapy regime, we conclude that Cellino’s affidavit was sufficiently “ ‘detailed, specific and factual in nature’ ” to establish that the Cellino defendants did not deviate from the standard of care applicable to that regime (Webb, 133 AD3d at 1386). The Cellino defendants failed, however, to establish the lack of a causal connection between any alleged deviation from the applicable standard of care on Cellino’s part and decedent’s injuries. In an opposing affidavit, plaintiff’s expert physician opined that Cellino deviated from the applicable standard of care by failing to use enoxaparin injections to timely remedy decedent’s subtherapeutic anticoagulation levels, which were indicated by his blood test results … Inasmuch as plaintiff bears the burden of raising a triable issue of fact “only as to the elements on which the defendant met the prima facie burden” (Bhim, 123 AD3d at 864), as concluded above, the court properly denied the motion of the Cellino defendants with respect to the claims related to Cellino’s alleged mismanagement of decedent’s anticoagulation therapy regime.”

Source Bubar v. Brodman, M.D., 881 CA 18-01785.

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