Practice point: The causes of action were dismissed, as plaintiff failed to submit evidence to rebut defendants' prima
facie showing that they did not deviate from the accepted standard of
care in their treatment of the decedent during her 20-day admission at
defendant Manhattanville. His expert assumed that the decedent had a C. difficile infection
throughout her admission and that the infection worsened during her
stay. He failed to support these conclusions by referring to specific
entries in the records, and, as to two negative stool sample tests, he
speculated that they had been handled poorly. Plaintiff's expert's
claims that the decedent suffered from dehydration and was not properly
nourished were conclusory and failed to controvert defendants' expert's
evidence to the contrary. Moreover, the expert failed to causally relate
the decedent's injuries to defendants' alleged departures from the
standard of care.
Student note: Plaintiff's expert's opinion as to the lack of informed consent
was predicated on his unsupported assumption as to the duration of the C. difficile
infection and relied on alternative "potential" treatments that were
experimental, without addressing whether the decedent would have been a
candidate for any of them. Moreover, the expert did not opine that the
lack of informed consent was a proximate cause of the decedent's
injuries. The opinion was therefore insufficient to raise an inference
that a reasonably prudent person in the decedent's circumstances, having
been appropriately informed of the risks and alternatives,
would have elected an alternate course of treatment, and that the
lack of informed consent was the proximate cause of the decedent's
injuries, pursuant to Public Health Law § 2805-d[1], [3].
Case: Denis v. Manhattanville Rehabilitation & Health Care Ctr., LLC, NY Slip Op 07253 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: An untimely note of issue.
