Practice point: In this medical malpractice and negligence action, defendants made a
prima facie showing of their entitlement to judgment as a matter of law
by submitting, among other things, their expert affirmation and medical
records.
The medical records supported defendants' expert's opinion that decedent's
chronic skin ulcers, gangrene and above-the-knee amputations, were the
unavoidable result of his preexisting, chronic conditions, as well as
other risk factors.
In opposition, plaintiff failed to raise a triable issue of fact.
Plaintiff submitted the conclusory and speculative affirmation of an
unnamed expert who failed to identify specific departures made by the
nursing home, when other actions should have been taken by the nursing
home and by whom, and how the results would have been different had
those actions been taken. The court found these failures especially troublesome, given
plaintiff's expert's concession that decedent's preexisting conditions
placed him at an increased risk for the conditions at issue.
Student note: In addition,
the expert failed to address the evidence supporting vascular
involvement and failed to establish that the nursing home's negligence,
and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury.
Case: Negron v. St. Barnabas Nursing Home, NY Slip Op 02468 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Accord and satisfaction.
