In its December 21, 2019 Memorandum And Order, the Supreme Court of the State of New York Appellate Division, Fourth Judicial Circuit (“New York Appellate Court”) reversed Summary Judgment granted in favor of the defendant physician assistant (“PA”) and the other defendants, stating that on a motion for summary judgment, a defendant in a New York Medical Malpractice action bears the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff’s injuries. The New York Appellate Court concluded that the defendants “failed to meet their initial burden on their respective motions and cross motions for summary judgment and, as a result, the burden never shifted to plaintiff to raise triable issues of fact.”
The Underlying Facts
Throughout an 11-day period in March 2008, the plaintiff presented to the defendant PA several times with various complaints. The PA diagnosed the plaintiff as suffering from sinusitis and an ear infection and prescribed antibiotics. The plaintiff also during that time period went to the emergency room, where he was treated by the other defendant health care providers.
The plaintiff’s New York medical malpractice action sought damages for injuries that he allegedly sustained as a result of the individual defendants’ negligence in failing to diagnose and treat a stroke that the plaintiff suffered while he was under their care.
In addition to other records and documents, the defendants submitted in support of their motions and cross motions for summary judgment the deposition testimony of the plaintiff, two of his family members who accompanied him to either the March 19 and 21 appointments or the emergency room visit, and the partner of one of those family members. The plaintiff and his family members testified that the plaintiff repeatedly complained to the defendant PA and the other defendants that he had suffered a stroke and that his head was “killing [him].” Moreover, all four individuals testified that the plaintiff was exhibiting the physical manifestations of having suffered a stroke, i.e., facial droop, listing to one side, problems walking, slurring of words and difficulty finding words, when he presented to the defendant PA on March 19 and 21 and when he presented to the emergency room on March 19.
Once the plaintiff’s stroke was diagnosed, he underwent surgery during which he suffered a subarachnoid hemorrhage, a known risk of the procedure. The plaintiff alleged in his New York medical malpractice action that he was left with significant medical problems, including expressive aphasia, persistent facial droop and an inability to move his right side.
The New York Appellate Court stated that it is well settled that experts may not rely upon disputed facts when rendering an opinion. Moreover, the defendants’ experts failed to address the plaintiff’s contention that, had he been timely diagnosed, he would not have been required to undergo the surgery in the first place. Therefore, the defendants were not entitled to summary judgment.
Source Kubera v. Bartholomew, 1025 CA 17-01748.
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