Medical Malpractice

Practice point: On a motion for summary judgment in a medical malpractice action, a defendant physician has the burden of establishing the absence of any departure from good and accepted medical practice, or, if there was a departure, that it did not injure plaintiff.

Case: Germaine v. Yu, NY Slip Op 02551 (2d Dept. 2008)

Facts: Shortly before noon, plaintiff arrived at the emergency room, complaining of abdominal pain, nausea, and constipation. An attending physician examined plaintiff at 12:45, and a resident examined her at approximately 1:00 o'clock. Several tests were ordered, and, before the tests were completed, the resident's shift ended and he left the hospital. Later, after additional testing, plaintiff was discharged, with a diagnosis of diverticulitis. Three days later, she was admitted to another hospital, where she was diagnosed with peritonitis and a perforated sigmoid colon, and underwent surgery.

The attending physician demonstrated that, when he left the hospital, he transferred responsibility for plaintiff's care to another attending physician, and was not responsible for any departures from accepted medical practice that occurred thereafter in either the supervision of the resident or the decision to discharge plaintiff.