Practice point: The required elements of proof in a medical malpractice action are a
deviation or departure from good and accepted standards of medical
practice, and evidence that such departure proximately caused the
plaintiff's injuries. Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause. Establishing proximate cause requires a
plaintiff to present sufficient medical evidence from which a reasonable
person might conclude that it was more probable than not that the
defendant's departure was a substantial factor in causing the
plaintiff's injury.
Student note: A trial court may grant judgment as a matter of law for defendant, pursuant to CPLR 4401, only where it finds that, upon the
evidence presented, there is no rational process by which the jury
could find in the plaintiff's favor.
Case: Brown v. Shah, NY Slip Op 05980 ((2d Dept. 2013).
Here is the decision.
Tomorrow's issue: The emergency doctrine.
