Practice point: On the motion, the defendant-physician must make a
prima facie showing that there was no departure from good and accepted
medical practice, or that the plaintiff was not injured thereby. On such a showing, the burden shifts
to the plaintiff to submit evidentiary facts or materials to rebut, but only as to those elements on which the defendant met its burden..
Here, the Appellate Division found that the Supreme Court correctly concluded, the defendants had made the requisite showing, shifting the burden to the plaintiff, who relied on the affirmations of two physicians, one board-certified in
internal medicine and nephrology, and the other board-certified in
diagnostic, interventional, and vascular radiology. The Appellate Division agreed with the Supreme Court's determination that these affirmations consisted of conclusory and
unsupported allegations, that they failed to address the salient issues
concerning the defendants' alleged departures from accepted medical
practice, and that they failed to respond to relevant issues raised by
the defendants' experts. While one of the plaintiff's experts concluded that certain of
the decedent's symptoms were consistent with nephrotoxicity resulting
from the use of intravenous contrast in the procedures, both
affirmations were speculative in concluding that the decedent's
condition was caused by the defendants' actions in
performing the second angiogram. Moreover, the plaintiff's experts
failed to differentiate between and among the acts and omissions of the various
defendants. Accordingly, these affirmations were insufficient to raise a triable
issue of fact.
Student note: Because the cause of action to
recover damages for wrongful death and the derivative cause of action
were both premised on the defendants' alleged malpractice, the same
conclusion applies to these causes of action.
Case: Ahmed v. Pannone, NY Slip Op 02552 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Causes of action for quantum meruit and unjust enrichment.
