Practice point: In opposing the motion to dismiss, plaintiff's expert simply asserted that defendant's
physician, instead of putting the ankle in a splint, should have
performed a surgical open reduction and internal fixation of the
fracture. Plaintiff's expert, however, neither set forth an explanation
of the reasoning supporting his conclusion nor identified any facts in
the record indicating his preferred course of treatment. Nor did
plaintiff's expert opine whether plaintiff's outcome would have been
materially better had he been treated with surgery.
Student note: Because the opinion was offered in a conclusory fashion
without specific analysis, the motion court correctly determined that plaintiff failed to raise a triable issue of fact in the
face of the well-supported opinion of defendant's expert that the
record facts showed that defendant's physician treated plaintiff
appropriately under the governing standard of care.
Case: Buckner v. St. Lukes' Roosevelt Hosp. Ctr., NY Slip Op 01167 (1st Dept. 2013).
Here is the decision.
Monday's issue: Labor Law § 240(1).
