Practice point: To establish the physician's liability for medical malpractice, a
plaintiff must prove that the physician deviated or departed from
accepted community standards of practice, and that such departure was a
proximate cause of the plaintiff's injuries. Accordingly, a physician moving for summary judgment dismissing a
complaint alleging medical malpractice must establish, prima facie,
either that there was no departure, or that any departure was not a
proximate cause of the plaintiff's injuries. If the defendant-physician makes the requisite showing, the burden
shifts to the plaintiff to demonstrate the existence of a triable issue
of fact, but only as to the elements on which the defendant met the
prima facie burden.
Student note: Summary judgment is not appropriate where the parties adduce conflicting medical expert
opinions, as they necessarily raise credibility issues which can only be resolved by a jury.
Case : Berthen v. Bania, NY Slip Op 06789 (2d Dept. 2014)
Here is the decision.
Monday's issue: Summary judgment in a snow or ice case.
